The new Access to Justice Commission: Update 3 [revised] (Lord Low & Steve Hynes’ evidence)

I have now received the audio file for the evidence we received from Lord Low and Steve Hynes on 3rd February 2016. This long blog therefore replaces the original Update 3, which contained a brief summary of Lord Low’s evidence.

 

CVs of Lord Low and Steve Hynes

Colin Low (Lord Low) is a crossbench peer with a background in law and disability theory.  A former lecturer in law at the University of Leeds, he is now Vice-President of the Royal National Institute for Blind People.  His legal experience led to his chairing of the Low Commission, which aims to develop a strategy for access to justice and support on Social Welfare Law.  Consequently, his experience is in Social Welfare Law.

Steve Hynes also serves on the Low Commission, in addition to being the Director of the Legal Action Group (LAG).   LAG was founded in 1972 and is an independent charity promoting equal access to justice for all members of society who are disadvantaged socially, economically or otherwise.  Steve is the author of books including The Justice Gap and Austerity Justice.  He is an expert on all things relating to legal aid.

 

PART 1: Lord Low’s Evidence

Lord Low (CL) began by outlining the history of the Low Commission and the key themes that emerged from the Commission’s various reports.  It was set up by the Legal Action Group in autumn 2012 with funding coming from a number of charities, and also support from some solicitors’ firms.  He said:

The initial idea was for an inquiry with a fairly limited life of around a year which would produce our thoughts on what might be a report with a strategy for social welfare law in the light of the cuts to legal aid in LASPO.

Note: The Commission took social welfare law problems to include welfare benefits issues, community care, debt, employment, housing, immigration and asylum, and education (such as special educational needs).

The Commission’s first report[1] was published in January 2014.  It was quite thorough, and made 100 recommendations.  People wanted us to continue, so the Commission continued and a follow-up report[2] was published in March 2015.   We have continued to publish since then, and are currently working on various things projects such as model strategies and toolkits for local authorities and the development of advice strategies.  We will also be producing a manifesto for the Welsh elections later this year, and expect to formally wind up around the end of March this year, although our work is likely to carry on in one form or another.

As for our strategy, despite some pressure to recommend a complete reversal of the cuts to legal aid, we didn’t see a recommendation of that sort as likely to gain much traction.  Instead, we took the approach of asking what could be done instead if that money for legal aid was to be permanently lost. We therefore went back to the drawing board, and saw legal advice and support as being part of a continuum from public legal education; informal and formal information; and general advice often provided by local authorities; to specialist advice; and formal representation and help.   It seemed clear that the advice end of the spectrum would have to take more of the strain.

This was one principal driver for the clear strategy that emerged: there should be more focus on advice, and also on prevention.  If steps could be taken to head off the need for legal help and representation in the first place by ensuring that the advice agencies and advice services that existed were supported, then this would have a preventive value.   It would not only help people in need – help to the individual – but would also be beneficial in terms of the system as a whole by heading off the need for more costly and harder to find legal resources.   Using a graphic simile, if there were strong fences constructed at the top of the cliff this would obviate the need for expensive ambulances and expensive hospital services for people who fell to the bottom of the cliff and injured themselves badly.

Of the hundred recommendations, the first couple developed the theme of the importance of preventive work.   So our first recommendation was that public legal education should be given higher priority, at the school and in education for life so that people know their rights and know where to go for help.  The second was that although there are certainly factors within the welfare reforms and other austerity measures that increase demand, we were convinced that there are also ways of reducing the need for advice and legal support in the first place: for example, the DWP could be incentivised to get decisions right first time by being required to pay the costs of upheld appeals.   We emphasised support for the advice services and public legal education and the preventive approach as two ways of achieving the mobilisation of services that would prevent the need for more expensive services later on.

This is all about putting more weight on the advice services.

There were also ways in which courts and tribunals could work efficiently.  We had a raft of recommendations to that effect.

I will now outline our central strategic recommendations.   Back in the beginning of 2014 we advocated that the next English and Welsh governments (preferably with all-party support) should devise national strategies for advice and legal support, and that there should be a separate minister in the MoJ for this purpose.  This strategy for advice and legal support should then be rolled out at local level, with groups of local authorities co-commissioning advice, and with commercial advice agencies and the not-for-profit (Nfp) sector taking part.

We estimated that a further £100 million a year would be needed to provide a base level of provision of sufficient advice and legal support on social welfare law.   We called on the government to raise half of this sum (£50 m per annum) as part of a 10-year national support fund spread across three departments – the MoJ, the Cabinet Office and DWP – so that no one department had too great a burden to bear.  The other half should be drummed up locally by local authorities from housing associations, clinical commissioning groups, money advice services, lawyer funded generation schemes, trusts and foundations, etc.

Note: The Commission reported that there were now five different schemes at varying forms of development: costs awarded for successful pro bono cases (now worth £100,000 p.a, paid to the Access to Justice Foundation); dormant funds held for clients who cannot be traced; dormant funds held in relation to companies that have been dissolved; unclaimed damages awarded as a result of collective actions in competition law; and the Interest on Lawyer Trust Accounts scheme (which is now only operated on a voluntary basis here, mainly by the larger law firms).

We recommended that this annual commitment should be renewed every 2-3 years with a view to achieving 10 years’ worth of funding overall.  When we got to the end of the first ten years, we would probably be asking for another ten.

That was our initial suggestion.  We worked it out fairly carefully.  £50m is a tidy sum, but it is not exactly mega if it is spread over three departments.

We also recommended a greater use of new technology for the section of the population which is increasingly digitally literate.  This would allow more intensive targeted support for those most in need, backed by specialist helplines.  There should be a one-stop national helpline providing general services for the general public.  This would be a safety net for those with no one else to go.  There should be better use of new technology.  This would not mean replacing everything with technology – there are always going to be people who struggle with technology.   Instead we advocated a shift of legal advice to technology for those who can use it in order to free up resources for those on the other side of the digital divide.  We also had ideas for the national helpline.

Although a wholesale reversal in LASPO cuts wasn’t seen as likely to gain traction, there were some cuts which we thought should be reversed – for example in the field of housing support to help people with their housing problems before they faced imminent eviction.   Likewise, the exceptional cases scheme wasn’t working at all, with many fewer cases coming through than had been bargained for.  It needed to be scrapped and reconstituted.

In our first report we said that social services were closing on a significant scale.   Citizens’ Advice income had decreased by 18.5% between 2010-11 and 2013-14.   As a result of the loss of welfare benefits advice from the scope of legal aid, most of the just under 300 Nfp advice agencies (including 128 CABx) left the legal aid scheme in April 2013, although the demand for advice and legal support had never been greater – and would increase still further as the government’s new welfare reforms rolled in.

We noticed just before Christmas 2015 that the MoJ published a report[3] in which it found that the number of Nfp legal advice centres had dropped from over 3,000 in 2005 to under 1,500 in 2015.   Moreover, of the 700 or so organisations that responded to a survey, just over half reported that there were problem client groups or problem types they had been unable to help with.  Of these, 62% reported that this was due to lack of resources; 49% that it fell outside their remit; and 47% that they lacked the appropriate expertise to deal with the problem.

Our second report[4], on advice and social welfare law, was published in March 2015.  It said that the advice deficit had widened significantly.   In 2013-4, following LASPO, nine law centres closed (including six within the Law Centres Network).   This was a terrible thing because the network of law centres that had developed since the 1970s and 1980s was a really welcome and beneficial development of legal services that hadn’t existed before.  They enabled access to justice for a section of population for whom it had been much more difficult before.  About 1/6th had now been stripped away – we lamented that very much.  The report also estimated that the Law Centres Network had lost almost ¼ of local government support since 2010-11.  This is very important.

There has been a considerable reduction of central government funding, but attention should also be focused on the impact of the cuts to local government funding.   From here on, I suggest, this is where most of the main damage is going to come from.  Local government funding from central government will have declined between 2010 and 2020 by a massive 60%.  This will transform the face of local government beyond all recognition, and cannot but have a catastrophic impact on legal services and advice services in particular.  I don’t think we should minimise the effect of this, or relax and say that the worst is over.  The worst is not over with LASPO.  With the swingeing cuts to local government funding the worst may yet be to come.   Your Commission needs to grapple with this.

In our second report we said that further and deeper cuts were on their way.  The Newcastle City Council has announced a 60% cut in advice services in 2016, and next year 100% of what they give to Citizens Advice.  This will lead to the closure of Citizens Advice services and leave a gaping hole in one of Britain’s key cities.

We also carried out and published a review of cost-benefit analysis of the provision of social welfare advice[5].  This survey concluded that there was a great deal of evidence to suggest that early legal advice saves the state money so that pound for pound there is a return on investment.   Evidence on housing problems in Coventry suggests that late intervention cost £8,837 social costs and £5,237 in greater legal cots if a house is repossessed – a total of over £14,000.  Early intervention cost £1,516 in social costs and £200 in legal costs, a total of just over £1,700.  In other words, early intervention costs considerably less than late intervention. All of this adds up to a substantial argument that it would be a good investment for Government to find the money to invest in early on.  This consideration underpins our thinking on prevention and on strategy.

Note: See Second Report, p 25.  A Coventry Law Centre project has integrated a specialist advice worker within the Children and Families First team, leading on Coventry City Council’s engagement in the government’s Troubled Families initiative.  This gives the law centre a new channel for undertaking outreach work, and facilitates much earlier interventions and ongoing contact with vulnerable families, especially during pivotal events such as a family member losing employment or entering hospital.

Beyond publishing reports, we have been doing a number of other things. After the publication of the first report in January 2014 we have been lobbying and working with political parties to try to influence the manifestos in run up to last May’s election, with only moderate success.  The enthusiasm from political parties was in inverse relationship to their capacity to influence policy and implement our ideas.  They received considerable traction with the Lib Dems, and we had productive discussions with Labour Party front bench spokespeople, but our recommendation of a 50-word insert didn’t make the cut with Labour and certainly didn’t with the Conservatives.   The Lib Dems’ manifesto did include a paragraph based on our recommendations, however[6].

Just before the election we worked hard to save the advice services transition fund which was due to close.  We had a little win in that the government agreed the fund would stay open and people could join.

Since the election we have been doing a couple of things.   We have been focussing firstly on what needs to be done to strengthen local advice services, and secondly on what needs to be done to develop a coherent strategy for advice services.   We have tried to promote this vision.  The government has shown some appetite for this vision as well as a recognition of the contribution that is made to society by the advice sector.  The climate seems to have thawed significantly within the MoJ.   Lord Faulks, Minister of State for Civil Justice and Legal Policy, for example, said in an answer to a Lib Dem peer last June[7] that there were some very good ideas in the Lib Dem manifesto about what could be done.  He referred, in a quite unbidden way, to the 50 words in the manifesto which incorporated our comments about the need for an overall strategy[8].  We then asked Michael Gove for a meeting, and he went out of his way to thank us for asking for it.   Since then, we have had a number of encouraging discussions with senior ministers about our proposals.

Our third report[9] was about the relationship between the availability of good advice services and better health outcomes.  A lot of the time when people have problems and go to the doctor they may feel they have a physical illness but 15-20% of the time they have a social problem – with debt, housing, unemployment and loss of social benefits, or something similar.  Again, good advice services would be beneficial in reducing unnecessary costs to the health service.   What is coming to be known as social prescribing is freeing up 15-20% of doctors’ time for cases of physical illness.   This is another line of approach which we are adopting.

Note: In his Foreword to this report Sir Michael Marmot, the Director of the UCL Institute of Health Equity, wrote: “It is encouraging to know that new Clinical Commissioning Groups, such as the Wirral and Liverpool, are commissioning advice services and that local authorities such as Bradford are using a combination of Adult Social Care and Public Health funding to commission advice services. What is disappointing is that even when these services are commissioned it is still difficult to persuade those health professionals who do not “get it” that it is worth thinking about how to provide this holistic health care – physical, mental and practical, and to work in partnership with those who are expert in providing these services.”

Finally, I offer some guidance as to the direction your Commission might take.  I suggest that you should take on board the importance of early advice for its preventive value, and the need for a national strategic approach rolled out locally, with national funds put together and strategically allocated, which are then matched by funding from local groups.

Our view is that the advice end of the spectrum needs to take more of the strain.  This seems to us to represent a strategy and a way forward for repairing access to justice.

Finally, I want to emphasise that funding streams do exist which could be redirected to support the new access to justice strategy.  You shouldn’t be frightened off by the spectre that there is no money.  There is money there.

 

PART 2: Steve Hynes’ evidence

1.  About LAG

Written Memorandum

LAG was formed in 1972 out of a desire to encourage a more active approach to the delivery of legal services and the role of non-lawyers.  A major concern was the inadequate access to advice for private inner city tenants.  In November 1971, four prominent solicitors called a meeting which was attended by about 80 advisers, lawyers and academics.  The aim was to raise money for an information service and to monitor the delivery of legal services around the country.  This led to the launch of the Legal Action Group.

The Legal Action Group is a self-financing educational charity which aims to provide greater knowledge of the law through its programme of publications and training for lawyers and advisors.  LAG also undertakes policy research on access to justice issues particularly the public funding of legal services. We do not represent providers of legal aid, but are primarily concerned that the public has access to good quality publicly funded legal services.

Oral Commentary

LAFG is a self-financing independent charity.  It sells books and magazines and is now involved with information systems.  It is also concerned with policy-making on access to justice issues.  We do not represent practitioners.   We are primarily concerned with ensuring that the public gets access to legal services.

2.  Decline of legal aid and advice centres

Written Memorandum

Legal aid as a service to the public declined over the last parliament. A tightening of means testing and the bureaucratic hurdles faced by practitioners meant there was a steady decline in the take-up.

The graph above [not reproduced here] shows the fall in the number of acts of assistance under the coalition government.  It shows that they fell from just over 1.4 million acts of assistance in 2009-10 to just over 400,000 four years later.  Acts of assistance describes all of the work carried out under the legal aid scheme.  They include telephone and face to face advice cases, as well as those involving full representation.

 Oral Commentary

2009-2010 saw the peak in terms of matters dealt with by the legal aid system.   There has been a decline since then.   Under the guise of austerity policies, this decline was originally caused by changes in the means test and by the creation of higher hurdles to cross.  This was symptomatic of a downgrading of access to justice in terms of Government policy, and also a downgrading of the resources provided by government to protect the rule of law.   In medieval times the two roles of the nation state were to defend the state and to impose the rule of law.   The rule of law is a fundamental responsibility of the state, but 1 million fewer people have been receiving state-funded legal assistance since LASPO.

Written Memorandum

The biggest area cut from the scope of the legal aid scheme by the Legal Aid Sentencing and Punishment of Offenders (LASPO) Act was private law family, which includes divorce and other matters to do with the breakdown of relationships. The graph above [not reproduced here] shows the decline in private law Children Act procedures covered by legal aid.  In 2012-3 legal aid was provided in 70,000 of these proceedings.  This figure went down to just under 20,000 in 2013-14, and just over 10,000 a year later.  These cases include residence and contact order cases.

Both graphs are based on figures from the Legal Aid Agency and its predecessor the Legal Services Commission.

The reductions in civil legal aid have combined with local government cuts leading to a reduction in the availability of assistance from not for profit advice centres.

The number of centres has reduced from 3,226 in 2005 to 1,462[i].

Oral Commentary

This graph shows the extent to which private law family cases have been taken out of scope.  This has caused knock-on problems in terms of the greater numbers of LIPs in the courts.

The effect of LASPO has been massive. We have moved from 3,226 not for profit advice centres in 2005 to 1,462 in 2015.  And this comes from the government’s own research – although they are very sensitive about it, and their PR people have denied these figures.   Your commission has a role to play in exposing this sensitivity and trying to influence things at a policy-level.

 

3.  Impact of civil legal aid cuts

Written Memorandum

Citizens Advice in their paper, “Towards a business case for legal aid” [10] argues that the state has to pick-up the cost of homelessness, poor health and the other consequences of people not receiving early advice on civil justice problems.  The table below uses the figures from the government’s estimates of the reductions in legal help for social welfare law cases.  These figures are multiplied by the amounts Citizens Advice calculated are saved in other costs to the state by clients obtaining legal aid in their cases.

Category of Law Reduction in legal aid Savings per £1 spent on legal aid Total savings to the state from spending on legal aid
Housing £10m £2.34 £23.4m
Welfare benefits £25m £8.8 £220m
Debt £20m £2.98 £59.6m
Employment £5m £7.13 £35.65m
£60m £338.65m

In total £60m in expenditure on legal aid advice saves the state £338.65m in expenditure on other services. Put another way, one-pound expenditure on legal aid saves the state around six pounds in other spending.

According to the government’s impact assessments, which were published with the consultation paper on its proposals which eventually became the LASPO Act, the then planned scope cuts would have a proportionately greater impact on groups protected by anti-discrimination laws.  For example, 63% of legal aid clients with welfare benefits problems have a disability.[11]

LAG argues that it is unacceptable that in a modern democratic state that the poorest and most vulnerable are denied access to advice and representation on their rights.

Oral Commentary

This table shows the savings to the state which the provision of legal aid brings with it.  The knock-on costs must also be added.  The Citizens Advice research marked the start of a very valid argument about the savings made by the expenditure of £1 on legal aid, which was considered by the Justice Committee last year and also in Parliament.

The effects of LASPO on protected groups are often overlooked.   63% of those who need advice on benefits have a disability.  Despite the admission made in the Impact Assessment, we were not successful in reversing the general effect of the LASPO reforms to civil legal aid when they were considered by Parliament.  It is not good enough for a modern democratic government to write off so many poor, vulnerable, protected people by cutting services in this way.   The state has a duty to protect them.  Your Commission should look at the effect of LASPO on these people.

 4. Governance of legal aid

Written Memorandum

LASPO Act incorporated the Legal Services Commission into the Ministry of Justice.  LAG believes this has led to-

  • A downgrading of the importance of access to justice as a priority for the legal aid fund,
  • Potential for interference in independence in decision-making in individual cases,
  • At the very least the potential for the perception of a conflict of interest, as the Head of Legal Aid Casework is also the Director of the Legal Aid Agency.

Oral Commentary

It was Labour which decided to take the control of legal aid away from the Legal Services Commission.  Practitioners did not object at the time.  The administration of legal aid needs to be performed with a degree of independence from the government, but it is now under the direct control of Government.  This has led to the downgrading of the importance of access to justice.  Nobody within the Ministry can say to the Minister that he is degrading access to justice and the rule of law.  There is an extreme risk of interference with independent decision-making.  This is only anecdotal, but politicians do tend to meddle.  There ought to be better checks and balances.   And even if ministers do not in fact interfere with administrative decisions, there can be an equally damaging perception of interference, as the Head of Legal Aid Casework is also the Director of the Legal Aid Agency.

5.  Separating civil and criminal legal aid spending

Written Memorandum

LAG believes that the Justice Secretary’s recent decision on two-tier criminal legal aid contracts should re-open the question of separating the civil legal aid fund.

Separating the funds, we would argue, is also a logical progression from much of the findings of the Low Commission.

The Labour Party should consider the establishment of a separate civil legal aid fund. This could join with other state and charitable resources to create a government sponsored body with the remit of providing access to justice through the provision of advice, representation and public legal education services.

Oral Commentary

It was very heartening to hear Michael Gove’s announcement last week about scrapping the two-tier criminal legal aid contracts.  That had been the result of sheer incompetence by the LAA, and it was shocking to see what happened.   But he was only able to make that decision because LASPO had choked off the supply of legal aided advice.  People were not taking up access to justice because it was uneconomic for lawyers to represent them on legal aid rates.  As a result, there was an underspend in the legal aid budget which in the context of enormous cuts is worrying.  The Justice Committee estimated the underspend at £30 million.   There is an argument as to just how much it is, but either way it was this underspend that provided the wriggle room for Michael Gove.

If there is no separation of funds, criminal legal aid, which is derived from the responsibility of the state to provide equality of arms for the defence in a criminal trial, will always take priority.   There is a tendency to raid the civil legal aid budget because civil legal aid is not seen as an institutional and legal priority.  And bringing criminal legal aid in the High Court and the Crown Court under the one budget also brought a lot of pressures with it.

6. Legal needs survey

Written Memorandum

The creation of the LAA led to the loss of the Legal Services Research Centre and its work which informed access to justice policy.  Its large scale Civil and Social Justice Survey was a particularly informative research project which gave an insight into the extent of civil justice problems and the success or otherwise the public had in resolving these.

LAG would argue that this research should be re-commissioned as there is a gap in the research data on the extent of legal problems and the take-up of legal rights.

Oral Commentary

There are a lot of options for the replacement of the LAA.  One of them would be a new statutory body which brought a number of different funding streams together, including the National Lottery and charitable funding.  The US Legal Aid Board is largely independent of Government, although I would not like to see that model transported here.

With the abolition of the Legal Services Commission the legal needs survey, a very important piece of research, was cut and much of that vital work was lost.   Research can still be drawn from the last survey, but without this kind of comprehensive and up to date survey, policy makers have no idea of the number of problems of accessing justice.  There is an enormous lack of take-up of legal rights but our culture is such that people feel they have no redress.

Finally, LAG would like to see the repeal of LASPO and its replacement by a new Access to Justice Act.

 

PART 3:  Lord Low and Steve Hynes’ answers to questions posed by Commissioners

SH

CLACs and CLANs provide an illustration of one of the problems with the Legal Services Commission and much of Government at that time[12].  Contracts for legal aid were put into a pot with local government grants for advice services, and people were invited to tender.  The primary problem with them were that they were just a mechanism – the voluntary sector in particular felt threatened and believed they could lose out.  If a company like A4E won the tender, there would be no potential for bringing up other sources of funding such as the Big Lottery or trusts like Barings and others.   That was the downside.

Law Centres have always emphasised the importance of local provision of legal services, with local governance by local people with local contacts.

There is also a problem of conflicts of interest if you have exclusively local funding.  Local authorities fund the advice service, but particularly in the field of civil and employment law there is the potential to take them to court.  This illustrates the tensions that exist if law centre services are funded locally.

There is a strong argument in favour of a national scheme which is able to join up local and other sources of funding.  The independence of the advice services must be guaranteed.

CL:

I don’t know much about CLACs and CLANs, but what has come across to me is the value of integration or collaboration in providing services locally.  One can achieve economies as a result of that kind of collaboration.  One of the best examples we talked about in our first report was in Sheffield, where at least 12 organisations work as an integrated advice service under the leadership of the CAB.  It has three in-house solicitors.  In the past none of the 15 or 16 small organisations involved in the new scheme had access to that kind of considerable in-house legal resource.  But it is all very much under the banner of Citizens Advice, who have a tendency to dominate.  Others feel a bit pushed out.  There is a bit of tension there.

Contracts need to be organised in such a way that there is more equality of recognition amongst the smaller organisations.  Sheffield is a very good illustration of integrating advice services at a local level in a collaborative way.

Comments by Commissioners:

This would be an updated version of a Community Legal Service Partnership.  A planning partnership manager had a local advice strategy which was partly delivered by the Legal Services Commission, partly by the local authority and partly by local advice agencies.

Although the tender arrangements were unsatisfactory, CLACs seemed to provide pretty solid advice centres in big urban areas.  They got pretty wide publicity, and their premises were OK.  They were relatively successful for the punters, the clients and the people who worked there.  But one problem was that other advice centres had their noses put out of joint: they felt left out with no role to play.  This is a problem for Government when it puts a wide social service scheme in place.   It can’t always take account of all who may be left out and don’t get the work they would otherwise have got.

SH:

There are both local and national rivalries, and sometimes Government must perform the role of ensuring they work together better.   In Kirklees and Derby there have been mergers between law centres and CABx.   Citizens Advice collaborates with local advice services.

CLACs were established in areas which were already well served.  They were a good concept, but they reconfigured services in areas where there were good services already.  In Leicester the creation of a CLAC led to the closure of a very good law centre[13].  There was also a reduction of services in Manchester when a CLAC was introduced.  CLACs didn’t provide any additional services.  Local politicians used them for their own local priorities, often to make savings by reducing services.

Comments by Commissioners

Within Citizens Advice we favoured the concept of CLANs as opposed to CLACs.

The Sheffield situation was imposed by the local authority in the same way that CLACs and CLANs were imposed.  People in Sheffield did not want that solution.  One of the big problems today lies in local authority cuts.  As soon as that money goes, there will be problems, as happened in Derby.  In Derby people came together prior to the creation of the CLAC, in anticipation of that policy.  This did not happen in Manchester.  Although they were before my time, I have read a lot of reviews and evaluations of the Community Legal Service Partnerships[14].  They seemed to be a concept which could be adapted successfully elsewhere.

It is attractive when Nfp agencies get together.  What can be done now?  How do you get clients who need legal advice in a civil matter quickly to the place where they can receive it?  Currently there are a lot of people who are unable to find out where they can get the help they need, even though legal ad is still available.  There may be 5 to 7 local agencies, none of which can help, but they are unable to help in different ways.

SH:

You have to design a system which creates incentives for both private solicitors and Nfps to network.  People don’t have the time to network in the way they used to.

There is a need for much greater public legal education.  A cultural change is needed.  People don’t talk about a rights-based culture any more.  There has to be a culture of rights and responsibilities, but we are losing that.   People don’t articulate their problems in the same way.  We encountered problems in establishing a law centre in Wales, where the problems have been compounded by this change in culture.  There is an assumption that people will access digital services and use them, but ongoing research among students has shown that although people are looking up information, they don’t take the next step of obtaining the legal advice they need, even by self-help.  You have to put in place the legal education that is now needed.  There is a lot of misery out there that is caused by people not getting the legal advice they need.

CL:

There will always be people who will need help in relation to information that is provided online, but it is easier to recognise the problem than to know how to solve it.

If services are integrated, it should be easier for people to access the advice they need.  There needs to be good publicity for single access points, telephone helplines, Internet addresses and so on.

In Sheffield the solution was imposed by a local authority which had the funding.  I think that this imposition was a good thing.  On the whole I am in favour of uniformity and streamlined solutions.  In Sheffield beneficial things happened which would never have happened through the individual agencies working on their own.  I favour consistency, not least from the point of view of recognisability.

It may not be the same model in every detail in every place.  In every area the model for collaboration and integration will be affected by local circumstances, personalities and geography.  There is a need for flexibility.

A Commissioner: In Sheffield the local authority told all the agencies they had to form part of the new scheme.  The policy framework was set, but it was left to the agencies, using their local knowledge, to decide how to implement the policy.  There comes a time when Government has to say that something has to be done, but it should leave it to the people on the ground to decide how it should be done.

SH

The Citizenship Foundation’s work has led to a strand of policy work in developing public legal education in schools.  They are at the head of the curve in understanding its importance.

Too much in the Government’s £750 million access to justice policy is being steered towards the needs of the courts, the reform of the courts, and the creation of virtual courts.  But these solutions are only for those who have access to the courts already.  LIPs, although a nuisance for judges and a problem for the court system, are just the top of a very large iceberg.   Most people don’t access the courts at all.

Advice and legal services haven’t embraced new technology.  There is no incentive for small and medium-sized solicitors’ firms to alter the way they do business.  IT will alter the scene, and it will also provide opportunities in terms of unbundling different elements of legal provision.  Housing law affords a very good intermediary type of triage, which has great potential if advice centres and the profession can be incentivised to take it up.  But it won’t do away with the need for local legal advice.

CL:

Compulsory public legal education in schools should certainly be tried.  This is easier said than done.  It is difficult to get anything new into the National Curriculum.  This is important, however, and we must try harder.

SH:

Wales has distinct problems around access to justice.  Outside Cardiff and Swansea local government doesn’t have the same arrangements for funding local advice services that English local authorities have.   In the private sector solicitors are dependent on a concentration of clients in their own specialist areas.  Outside the big cities there are mixed practices, but they are under threat due to the legal aid cuts and wider competition.  The sparse populations in the Welsh valleys don’t make things easy for legal practices to flourish there.

The financial viability of publishing a book on Welsh law or Welsh community care law is questionable.  This is a very practical problem in a small jurisdiction developing its own distinctive laws and its own language.   Promulgating the law presents problems.

Solicitors need to be trained to study Welsh law, and this is not really commercially viable.  There will be a need for Welsh Assembly intervention in terms of a legal education policy for Wales.  Devolution creates a lot of problems for Wales.  Scotland is larger and it has possessed its own justice system for much longer.

A Commissioner: A lot of work was done over 10 years ago by the Civil Justice Council on public legal education, involving the Citizenship Foundation and the National Curriculum.  There were major difficulties because teachers were expected to deliver legal courses (for example, on human rights issues) law in addition to their normal teaching tasks: this presents problems.  It might be worth revisiting that work

CLACs were a prime example of a complex solution imposed on existing advice regimes.  Organically, advice agencies and solicitors find ways of meeting local market need, but this is done away with when a single contracting model is imposed.

The hybrid formula may be something we should look at.  How important is it to differentiate between advice (which may amount to not much more than a cup of tea and a biscuit) and legal advice?

One of the major difficulties within City Challenge (or the New Deal for Communities which replaced it) was that local authorities might be tempted to use the funds for other purposes.

How do we ensure quality in these advice outlets? Advice agencies tended to sit on problems (often writing letters without identifying a legal problem), when it might be easy for a lawyer to find a legal solution.  There is a need for cross-education and cross-training.

CL:

Our conception is to bring together the advice services within a community, with access to specialist advice or representation when it is needed.  It is difficult to draw a sharp demarcation line between advice and legal advice:  they shade into one another.  Within an agency, different people may have different skills.  Lawyers need to be aware of advice-giving skills, and advice workers need to know when to refer an issue to a lawyer.

I agree that there are dangers if funds are not ring-fenced.   Ring-fencing is often difficult to set up.  Creating a duty on local authorities to give appropriate advice might provide them with an incentive not to allow money to trickle away to other purposes, but this may not be welcome to local authorities.  If we are serious about the need to provide advice, there must either be the creation of a statutory duty to provide it or ring-fencing.

We have tried to get the notion of the importance of advice services into the conception of these combined authorities that are to make up the northern powerhouse.   We want to get into the Prime Minister’s £140 million programme for the regeneration of deteriorated estates.  The importance of creating advice services needs to be fully taken on board when the programmes are being formulated.  But we also need to find other ways of advancing the policy.

SH:

You will probably never get a satisfactory answer about the difference between advice services and legal advice.   It is a grey area.   Nfps are sometimes guilty of claiming to do more than they can deliver, and some of them are downgrading their commitment to what I would characterise as legal services.

New services are now emerging, a development which LAG supports – paralegals, emerging Internet services etc.  Consumers need a guarantee of quality.  There used to be a unifying Quality Mark for legal aid in the advice sector and the legal sector.  There must be professional accountability for advisory services and indemnity insurance.   60% of advice agencies now don’t have indemnity insurance.

Local authorities possess the potential for a conflict of interest, but Government policy is gradually to reduce their ability to fund non-statutory services, so that by 2020 they will no longer have the capacity to fund them.   In London, in particular, local authorities have statutory responsibilities under the homelessness legislation, but there is not the supply of homes available to enable them to comply with their statutory duties.  The law is unenforceable, for lack of resources.   It is a very grim prospect over the next 4 years.

Increasingly local government will be used as an Aunt Sally by central government.  Governments give local authorities duties, but not the means to deliver them.  They are willing to blame another public sector service, but they do not give it the means to fulfil its responsibilities.

Private sector provision of local legal services is now under threat.  Legal aid funding re-established the practices of High Street solicitors after the war.  Access to justice was provided to ordinary members of the public.  This has been lost.  In contrast, conglomerates will cherry-pick where they are able to make money (personal injuries, clinical negligence or conveyancing, for example).

Governments should take a role in ensuring that public sector provision (in the form of law centres and others) functions as well as the private sector.  Small independent firms create checks and balances within the state.

Other Commissioners:

The Green Form scheme preceded CLACs and CLANs.  This should be explored again, I think.  Advice was delivered by a solicitor’s business, which provided good quality advice.  Anecdotally, I know of two solicitors who found it impossible to work within a CLAC where there were so many clients to see for 15-minute slots every day.

A topic like law affects every single aspect of our life.   It is not discussed among 15- and 16- year olds.  A citizenship module within the National Curriculum could provide teaching on the rule of law, the role of Government, and rights and responsibilities, between the ages of 10-11 and 15-16. 

There should be contracts to provide advice/ assistance to law centres, with specialist solicitors and counsel playing a trouble-shooting role to some degree.    The fixed fee £200 legal advice and assistance scheme still exists in some areas.

The Law Centres Federation also produced a cost-benefit analysis on legal aid provision.  Their costings showed what was actually paid on a case.

SH:

Mediation has to be underpinned by independent legal advice for it to work.  It is not a total panacea, as some politicians would wish.

By 2020 or 2025 we will have lost a whole cadre of specialist legal advisers.

The Citizens Advice and LCF research was quick and dirty.  There is a need for proper research by economists around cost-benefit analysis because it would be possible to prove definitively what the Citizens Advice research says.

CL:

We shouldn’t see public legal education as just a school activity.  It should be provided throughout life.  Teaching on rights and responsibilities is important.

[1] Tackling the advice deficit: A strategy for access to advice and legal support on social welfare law in England and Wales (January 2014).

[2] Getting it right in social welfare law: The Low Commission’s follow-up report (March 2015).

[3] Survey of not for profit legal advice providers in England & Wales (MoJ, Dec 2015).

[4] The Low Commission, Getting it Right Report, March 2015.

[5] Social Welfare Advice Services – A Review for the Low Commission (May 2014)

[6] “We will develop a strategy that will deliver advice and legal support to help people with everyday problems like personal debt and social welfare issues, working across government and involving not for profit agencies.”

[7] See House of Lords Hansard, 10th June 2015.

[8] Lord Faulks QC said: “The Liberal Democrat manifesto contains a number of wise things, including the suggestion that we…”  He then quoted the first 25 words of the extract in Note 6 above verbatim before adding “I entirely agree with that.”

[9] The Role of Advice Services in Health Outcomes: Evidence Review and Mapping Study (ASA & Low Commission) (June 2015).

[10] Towards a business case for legal aid. (Citizens Advice July 2010).

[11] Legal Aid Reform: scope changes, MoJ Impact Assessment No 028

[12] In July 2005 a Legal Services Commission consultation paper tried to address the issue of co-ordinating services more effectively, so as to be better able to tackle the clusters of problems which clients faced.  It proposed joint tenders with local authorities for social welfare law and family law services: Community Legal Advice Centres (CLACs).  The LSC was to take a more centralist role in controlling how advice was provided and who should provide it.  In rural areas there would be Community Legal Advice Networks (CLANs), not CLACs.

In early 2009 there were CLACs in Gateshead, Leicester, Derby and Portsmouth.  By 2010 the LSC aimed to open CLACs in Barking & Dagenham, Cardiff, East Riding, Gloucestershire, Hull Manchester, Stockport, Sunderland, Wakefield and West Sussex.  The LSC then closed the list, and it was never re-opened.

[13] There was then a discussion of the factors that led to the Leicester Law Centre closing.

[14] Reference was made by another Commissioner to a report written for the Advice Services Alliance.

[i] Article from The Brief (Times Law) pub 23rd December 2015:

Pinning down precisely how many not-for-profit (Nfp) legal advice centres there are in the UK and what they do is a difficult exercise.

There is an eclectic mix of providers and lack of overall planning in the sector. A survey of centres in England and Wales, published by the Ministry of Justice last week makes a decent stab at providing the sort of detailed information that has so far been lacking for policymakers, but in doing so it reveals some uncomfortable facts for both the government and legal advisers themselves.

The researchers identified some 1,462 Nfp legal advice centres, a finding that is given a prominent position in the report’s summary. Included are Citizens Advice outlets, Law Centres and those aimed at specific client groups, such as the elderly.

But buried away in the body of the report is a statistic showing that there were an estimated 3,226 centres in 2005. That means that the number of centres has declined by more than 50 per cent in ten years – but maybe the researchers were too concerned about upsetting their political masters to draw such a conclusion.

The report does state that 54 per cent of those surveyed said that they were forced to make big changes to their services as a result of the civil legal aid cuts. In April 2013, the government slashed £89 million in the legal aid available for welfare benefits, debt and housing cases. That was the bread and butter work of most of the advice centres in the survey and it is no surprise that so many have closed or reduced in scope in recent years.

A glaring omission from the report is a geographical analysis of the locations where advice services are available. Legal aid and other cuts have exacerbated the trend for many, especially the larger agencies, to be located in urban areas, leaving swathes of the country without coverage. Telephone and internet services are all well and good for the connected and literate, but not for many of the poorest people that these advice centres serve.

In the UK’s relatively deregulated legal services market, anyone can set up as a legal adviser, unless advising on immigration law or undertaking an activity reserved by statute for legal professionals, primarily court representation and the conduct of litigation.

Despite the lack of formal regulation, the public is entitled to expect good quality advice and redress when things go wrong. But two findings in the report are concerning. Nearly a quarter of providers do not have one of the commonly held quality marks for advice services and 6 per cent have no professional indemnity insurance.

These issues must be dealt with for the sake of clients and to prevent government from stepping in. Rather than choosing to ignore politically inconvenient statistics, ministers need to identify gaps in provision and work with the advice sector to plan and co-ordinate services. It is to be hoped that the MoJ report will spark that action.

 

 

 

 

 

5 thoughts on “The new Access to Justice Commission: Update 3 [revised] (Lord Low & Steve Hynes’ evidence)

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