During the last six weeks I have been concerned with the task of sorting out and reordering the very large quantity of valuable information which has come to Lord Bach’s Accress to Justice Commission in response to its Call for Written Evidence.
It seemed to me unrealistic to attempt to chart the future without understanding something of the past, and in this series of blogs I will be sketching out the history of legal aid in England and Wales since the Legal Aid and Advice Act 1949.
In this endeavour I have drawn very heavily on three books published by the Legal Action Group which are all still available through its online website: Justice, Redressing the balance, written in 1997 by Roger Smith, when he was still director of LAG; The Justice Gap, written in 2009 by Steve Hynes, the new Director of LAG. and the journalist Jon Robins; and Austerity Justice (2012), also written by Steve Hynes. I have also drawn on three volumes in the Hamlyn Lectures series – the State of Justice (Michael Zander, 2000), Judging Civil Justice (Hazel Genn, 2008) and Alan Paterson (Lawyers and the Public Good, 2012). All these books form compulsory reading for anyone studying this subject.
It is not posssible to understand the growth of expenditure on legal aid without appreciating that in England and Wales our form of adversarial system of justice is very much more complex (and much more expensive, as a direct consequence) than the systems of justice in other developed countries. As a former chairman of the Law Commission I know that there has never been any very effective drive to simplify the law, and Parliament has shown no inclination or willingness to do anything other than add year by year to a mass of often fiendishly complicated legislation. And when succesive official reports have recommended some limitation in the scope of the jury system, Parliament has always rejcted the call, without doing anything very much by way of recognising just how expensive this system is when it is used for long, complex trials. These are some of the reasons why it has been ludicrous for ministers, arriving new to the problems, to repeat the mantra that we have the most expensive legal aid system in the world without doing anything much to understand, let alone to try and remedy, the underlying causes.
Professor Paterson observed in 2012 (see p 75 of his book of lectures) that recent research had showed the bulk of the drivers for the increasing cost of legal aid lay outside the control of the legal profession. They included the creation of more and more criminal offences and the passing of more and more legislation wthout proper impact assessments; playing intergovernmental budget games – over VAT on legal fees and increasing court fees – which involved huge payments to the Treasury; and the failure of government agencies (central and local) to fulfil their legal obligations. This final point came up again and again in the evidence we have received on the need for costly tribunal systems in the social welfare field to undo the effect of swathes of bad initial decisions that are made within Government.
The History of Legal Aid
Although access to the courts was recognised as a constitutional right, there was no constitutional right to the provision of legal assistance at public expense if one could not afford a lawyer, although from time to time statutory or quasi-statutory arrangements provided some form of help. For instance, the Court of Requests, established by the Privy Council as a poor man’s small claims court in Tudor and early Stuart times, provided legal help for those who needed it, and in more recent times the Poor Prisoners Defence Act 1903 ensured that legal aid would be paid once it was decided that a prisoner had a defence.
There was also the Poor Man’s Lawyers movement, first established at the end of the nineteenth century at Mansfield House and Toynbee Hall, charitable settlements in East London, which provided pro bono help that stopped short of representation in court. In 1926 one of its founders explicitly recognised the limitations of charity in providing access to justice, saying that it made the rule of law “an anaemic attenuated make-believe which we flash in the eyes of the poor as justice.” A little earlier a committee chaired by Mr Justice Finlay, responding to a witness who had used the analogy of health to argue for a “Legal Hospital System”, expressed the view that while it was the state’s interests for people to be healthy, it was not necessarily in its interest for them to be litigious.
There was always a tradition by which lawyers on occasion provided pro bono services on an ad hoc basis, but this was an unpredictable source of assistance and attracted a strong social stigma because of its explicit link with the concept of pauperism.
During the Second World War the Law Society had had to set up a salaried divorce department because of the non-availability of pro bono lawyers, but it was not anxious to continue this service after the war, and in 1944 the Coalition Government set up the Rushcliffe Committee, chaired by Lord Rushcliffe, a former backbench Conservative MP, to advise it on the way forward.
The Committee reported in 1945, and the post-war Labour Government accepted its recommendations, saying in a White Paper in 1948 that legislation would be introduced
“to provide legal advice for those of slender means and resources, so that no one would be financially unable to prosecute a just and reasonable claim or defend a legal right; and to allow counsel and solicitors to be remunerated for their services.”
Legal aid, however was never one of the four pillars of the new welfare state.
Under the Legal Aid and Advice Act 1949 legal aid was to be available in all courts and tribunals where lawyers normally appeared for private clients. Eligibility should be extended to those of “small or moderate means”, and above a free limit there should be a sliding scale of contributions.
There should be a test of merit: for civil cases they should be judged on a basis similar to that applied to private clients. Legal aid was to be funded by the state, but administered by the Law Society. The Lord Chancellor was to be the responsible minister, assisted by an advisory committee. Means investigations were to be undertaken by the National Assistance Board. Barristers and solicitors should receive adequate remuneration.
The essence of the system established by this Act was that if a citizen with a legal problem could establish that he/she qualified for legal aid under the means test and the merits test, he/she had an entitlement to legal aid. There was an annual budget approved by Parliament, but if the budget was exceeded, a supplementary grant was always obtained. This applied to both civil and criminal legal aid.
The history of legal aid since then can be conveniently divided into six periods:
(1) 1945-1970. The foundation of legal aid. The emergence of the first challenge to its structure through the law centre movement.
(2) 1970-1986. The opening of the first law centre in North Kensington. This period witnessed the absorption by the private profession of the law centre threat.
(3) 1986-1997. Lord Hailsham, as Lord Chancellor, initiated the first intended cuts to civil legal aid eligibility. The Conservative Government began to prioritise the restraint of the legal aid budget in the face of unprecedented rises in cost. A Consultation Paper was published in 1995 and a White Paper in 1996. The Labour Party, which won the 1997 election, had a looser commitment to future policies, but it was determined to live within the Conservative party’s spending estimates.
(4) 1997-2005. The Access to Justice Act 1999 created a new Community Legal Service and a Criminal Defence Service. The former represented an attempt to plan the provision of poverty legal services through Community Legal Service Partnerships, but this ambitious project had failed by 2005 when new policies had to be adopted. The latter created a structure for the provision of criminal legal aid, which was continuing to increase in cost at an exponential rate. It also saw the absorption of criminal legal aid in the Crown Court and the higher courts into the mainstream legal aid budget.
(5) 2005-2010. The legal aid budget had now been brought more or less under control at a figure of £2.1 billion, but Community Legal Advice Centres (or Networks), a new venture, were showing no signs of becoming firmly established, and there was a long-running dispute between the Government and the legal profession over the former’s desire to introduce arrangements for competitive tendering for legal aid contracts.
(6) 2010-2016. The austerity policies of the new Coalition Government required significant cuts to be made to the legal aid budget. The Legal Aid, Sentencing and Punishment of Offenders Act 2012 made very substantial changes to the arrangements for civil and family legal aid, introducing for the first time the concept that legal aid would only be available for those legal topics which came within the scope of the new statutory scheme. Lawyers’ fees were reduced, and the dispute about the appropriateness of competitive tendering in the criminal courts continued to rumble on.
In considering how to replace the Law Society’s salaried divorce department with a statutory scheme of legal aid and advice with more ambitious credentials the Rushcliffe Committee rejected a service by salaried lawyers oriented towards the particular needs of the poor, an idea put forward by the Haldane Society, under which legal aid would be based in a thousand of the new Citizens Advice Bureaux. It also rejected an idea by the Poor Man’s Lawyers’ Association, which would have given priority to Rent Act disputes, workmen’s compensation claims, small claims and hire purchase disputes.
Divorce work in the High Court was to be the first target of the new scheme, and there would then be a gradual extension of the scheme into other areas of civil work. In the early 1960s legal aid was available in the county courts and in the magistrates’ courts. Criminal legal aid expanded in the 1960s, particularly after a committee chaired by Mr Justice Widgery had identified with clarity in 1966 the principles on which legal aid should be available to those charged with criminal offences in magistrates’ courts. The administration of criminal legal aid in the Crown Court and also in the higher courts was until quite recently under the control of those courts.
By 1970 overall legal aid expenditure was still low. There had been an annual rate of expansion of over 50% in terms of costs, but the scheme was still overwhelmingly concerned with the consequences of divorce and other matrimonial problems. Social welfare law was largely ignored. A 1969 survey of legal aid certificates in Birmingham revealed 86% family; 9% personal injury, and 5% others.
In 1969-1970 the Advisory Committee said that greater attention should be given to the needs of people appearing before tribunals. It called for some form of ancillary legal services. This was the time of the radical lawyers’ movement in the USA, which supported the civil rights movement in the 1950s and 1960s and led to the acceptance of legal services as an integral part of President Johnson’s “war against poverty”.
In the Society of Labour Lawyers’ pamphlet Justice for All (December 1968) Michael Zander described the work of the US neighbourhood law firms in the United States. In this country community-based groups were now springing up, and community action involved experiments with the use of the law to back its campaigns. At about the same time Conservative Lawyers published a pamphlet called Rough Justice which called for more planning of legal services, together with grants for solicitors to set up practices in poorer areas.
The first law centre was opened in North Kensington on 17th July 1970. Its lawyers worked with the Notting Hill Residents’ Association. Its aim was to provide
“a first rate solicitors’ service for the people of the North Kensington community; a service which is easily accessible, not intimidating, to which people could turn as they would to the family doctor – or, as someone who could afford it, to the family solicitor.”
In answer to this initiative the Legal Aid Advisory Committee advocated the creation of a new and flexible legal advice service, whose beneficiaries would be the private profession. Law centres, it thought, should be transferred to the direct control of the Law Society.
Legal Aid expanded throughout this period both in its range of schemes and in expenditure. A new Green Form scheme was introduced for advice and assistance on any matter of English law on the basis of a simplified test of income and expenditure, which was carried out by the solicitor.
Duty solicitor schemes in magistrates’ courts were gradually expanded, and they became statutory in 1984. Duty schemes for advice in police stations, as per the Police and Criminal Evidence Act 1984 (PACE), were introduced two years later.
At the beginning of this period legal aid had constituted a very minor source of income for the legal profession. By 1975-76, however, it constituted 7% of the total fees earned by solicitors, rising to 11% ten years later. 30% of the Bar’s income came from legal aid in 1977 (20% of it from criminal legal aid), when the Royal Commission on Legal Services pointed to the Bar’s dependence on legal aid as a source of income. During the 1970s the number of those practising at the Bar roughly doubled, while the size of the solicitors’ profession increased by 50%.
The causes of the increase in legal aid expenditure included a massive increase in criminal work, with legal representation for criminal cases in magistrates’ courts now being the norm: there was an increase from 20% in 1969 to over 80% in 1986 in the number of defendants represented on legal aid in indictable offences in the magistrates’ courts.
There was also a soaring divorce rate, rising from 4 in 1,000 marriages in 1968, to 9 in 1,000 three years later, and just under 13 in 1,000 in 1986. Legal aid was not available for the divorce itself from 1977 onwards, but the number of ancillary applications relating to maintenance and children continued to rise, as did the number of women seeking protection from domestic violence.
Eligibility for legal aid originally included 80% of the population. In 1973 the figure was 40%, but by 1979 it had increased to 79%. It retained this level in the early 1980s before falling during the rest of that decade.
The introduction of the Green Form scheme had originally been advocated by the Law Society for the purposes of the social welfare law work pioneered by law centres, but in fact over 50% of the Green Form bills in 1985-86 related to personal injury, crime and family matters. There was a growth in the number of Green Forms in social welfare law from 27,000 (1975-76) to 172,000 (1985-86), but as a percentage of the total number of all green form bills the increase in social welfare law advice increased from only 11% to 17%.
The numbers of law centres steadily increased, first in London, and then in the provinces as well. The Law Society hoped to control them by setting conditions on the waiver of professional rules on advertising and sharing fees. In its report for 1973-74 it attacked law centres for stirring up political and quasi-political confrontations. Lord Elwyn-Jones, the Lord Chancellor, then brokered an accommodation whereby law centres could not compete with private practices in traditional areas such as adult crime, matrimonial work, personal injury, probate and conveyancing. The Law Society would then grant the necessary permissions. In 1979 the Law Society told the Royal Commission on Legal Services that law centres were not a threat: indeed, they generated work for private practices.
During the 1970s, in spite of their steady growth, there were danger signals for law centres over their financial viability, and in 1975 Central Government funding was made available for eight law centres which were in financial difficulties. So far as the advice sector was concerned, CABx were established during the Second World War, but they were then neglected. In the 1970s, however, they increasingly found favour with local authorities, and their numbers doubled from 473 in 1966 to 869 20 years later. The volume of inquiries more than quadrupled (from 1.3 million to 6.8 million). Several hundred independent advice centres were also set up and there was a gradual development of local authority-funded specialist advice services, some provided by the local authority and some voluntary, mainly for housing, social security and debt.
There were a few small experiments in the employment of lawyers in the advice sector. A combined CAB and law centre was established in Paddington in 1973, and another in Hackney in 1976. Community lawyers (who gave advice and also trained legal advisers) were employed by CABx in North Kensington, Lewisham and Waltham Forest. By 1977 ten CABx employed lawyers, and the National Association of Citizens’ Advice Bureaux (NACAB) resolved to develop more posts. They developed the idea of “resource lawyers” who would assist the overwhelmingly lay workforce of the bureaux.
The Royal Commission on Legal Services (1976-79) recommended no great changes. It appeared to be almost hostile to law centres and salaried lawyers’ services. It considered that the time had come to move from a period of experiment to one of consolidation. It was in favour of continuity, the orderly development of services, adequate resources, and proper administrative and financial control. Law Centres shoud be transposed into more manageable and better managed citizens’ law centres.
The Commission also adopted a conservative line in relation to CABx. It said the division of function between the CAB service’s paralegal work and the use of professional lawyers was now on a sensible and practical basis, and it should stay that way. CABx should not build up teams of lawyers to give legal advice to individuals.
When the Conservative Government came to power in 1979, it continued the existing funding support for the eight law centres, but said that in general law centres should be funded by local authorities in future. Until 1982 the Department of the Environment had funded many new law centres and other advice centres through its Urban Aid programme. Ater 1982 local government was increasingly the major funder of agencies giving advice in the social welfare law field. Conservative local authorities, however, were largely reluctant to fund law centres. As a result, financially secure law centres were increasingly to be found in Labour areas throughout the 1980s and 1990s. Law centres were never a large enough force to dominate the mainstream of publicly funded services. They survived in relatively small numbers on the periphery of things, and in general attracted very low levels of local government funding.
Local authorities tended to be more greatly impressed by the claims of advice agencies, whose numbers and funding increased massively. Under Ken Livingstone the GLC produced a positive flood of funding for advice agencies providing advice in general and welfare benefits work. In the 1970s there had been periods when a degree of rivalry between law centres and the advice sector was apparent, but in the following decade it looked as if the two sectors had embarked on different courses.
From the 1980s onwards the rising cost to the taxpayer of the legal aid budget became increasingly a matter of political concern. By 1986, total payments under all forms of legal aid were £419 million, and the net cost to the Exchequer (when client contributions and other costs recovered had been taken into account) was £342 million. The cost of criminal legal aid was now well over 50% of the total budget. The share of criminal legal aid in the magistrates’ courts had doubled since 1969-70. It was now 25% of all legal aid costs. In February 1986 there was the first major cut to entitlements. Dependants’ additions were slashed by 17%.
In 1986 the Cabinet Office’s Efficiency Scrutiny of Legal Aid laid the ground for the transfer of legal aid administration from the Law Society to a new Legal Aid Board [LAB]. This was a technical and overdue recognition of the proper roles of government and the professions, but it was also a defining moment, and it saw the beginning of a new era. In December 1988 Steve Orchard, who had spent his whole working life in the service of the courts, was appointed the first chief executive of the LAB, a post he held for the next 15 years.
The Third Period (1986-97)
The increase in cost of the legal aid scheme
The legal aid debate since the mid-1980s was increasingly dominated by its cost. In 1985-86 the total cost was £319 million, and this had risen to £1.4 billion by 1995-96 (civil – including family – £675 million; criminal £530 million; advice and assistance £272 million). In the decade between 1986-87 and 1995-96 the average annual increase in expenditure was 16%: in three years (1990-91, 1991-92 and 1992-93) the annual rise was 20% (in 1991-92 it was almost one third). These rises far outstripped the number of bills paid. One cause of the increase, though a minor contributor to the total picture, was the greater involvement of solicitors in advice/assistance work, especially social welfare law.
|Green form advice – bills paid||980,507||1,531,972|
|Social welfare green form advice||356,272||744,936|
There was a disproportionate increase in immigration/ nationality and welfare benefit matters because of
(a) greater tightening up of immigration legislation and greater sophistication by lawyers in response; and
(b) the fact that a lot of firms hired welfare benefit workers from the voluntary sector. The quality and depth of the advice they provided is unknown.
Cuts in eligibility
Lord Mackay (who was Lord Chancellor between 1987 and 1997) made cuts in eligibility and decided to move towards standard fees. As a result, by the mid-1990s the increase in the total number of cases was more or less equivalent to the increase in total cost. Criminal legal aid was more or less protected.
Under the cuts to civil legal advice eligibility, the contributory levels of qualification were totally removed, and the scheme was reduced to bedrock eligibility at income support rates.
Civil legal aid eligibility was also in the firing line. This table shows the percentage of households eligible for civil legal aid on income grounds:
Legal aid became increasingly available only to those whose income was at the lowest levels, together with those who had to pay contributions at higher rates for longer periods. By 1996-97 7.5% of all those who were offered legal aid were liable for contributions at an annual rate of more than £500.
Law centres and nfp advice agencies
There was a total of 56 law centres in 1986, and 53 in England and Wales alone in 1997. The increase in green form payment to both law centres and nfp agencies employing lawyers is shown in this table:
|Green form payments||1990-91||1996-97|
|Law Centres||£1 million||£1.8 million|
|Advice agencies employing lawyers||£202,000||£1.9 million|
The LAB also dispensed about £2 million to agencies which did not employ lawyers, as part of a pilot project. Although law centres received £2.1 million out of £2.4 million in 1990-1, five years later they received a much smaller share (£3.7 million out of £8.2 million) of the money paid to all not for profit [nfp] organisations. Law centres gave high priority to serving ethnic minority communities, but they were dwarfed by the number of advice agencies.
In 1995-96 900 organisations were members of the Federation of Independent Advice Centres. Within the CAB service there were over 700 separate bureaux (and over 1,000 outlets). CABx dealt with 6.5 million problems brought to them by 3.5 million people. The strength of the advice sector here meant that we had no network of centrally funded law centres as in Ontario and Australia. The national Government grant to NACAB was £12 million. In contrast the LAB grant to the Law Centres Federation was £67,000.
In order to improve the quality of provision, the LAB created a system of legal aid franchises in which a firm’s performance would be measured by agreed quality levels in return for receiving benefits in the way the LAB treated them. In its 1991-92 report it set out three major areas in which quality could be measured. Adequate performance was required, as gauged by visits which included a measurement of performance in three separate areas:
- General management – measured by the Law Society’s Practice Management Standard;
- Competence at form filling – easily measured;
- Work done for clients: files were picked at random, and a non-lawyer would assign a standard score, measured against a standard list.
This approach went some way towards developing a credible system for assessing the quality of legal aid firms’ advice that was previously absent. The LAB revisited the practice of peer review and found it prohibitively expensive.
The introduction of a cap to legal aid expenditure
In July 1995 Lord Mackay responded to pressure from the Treasury in a Green Paper which outlined radical proposals for altering the existing legal aid scheme. By far the most important was the proposal that legal aid expenditure should be capped or subject to a ceiling. A fierce critical reaction followed.
In July 1996 Lord Mackay’s White Paper broadly confirmed the plans he had outlined the previous year.
As at April 1997, 1,740 offices (out of 12,000 who were paid for legal aid work) had a franchise in at least one area of work. The LAB said its target was 2,500. They conducted two pilot programmes in the use of nfp agencies. The first, which provided grants to law centres etc. to explore various alternative methods of delivering services, did not produce any practical long term results. The second, however, which examined whether advice agencies could deliver legal advice, as recommended by the Cabinet Office’s 1986 Efficiency Scrutiny, deliver legal advice, was claimed to be great success. However, more than a third of the people interviewed by the 42 pilot agencies were ineligible for legal aid, and the agencies undertook relatively low level advice. Only a few did more than this.
This third period in the history of legal aid ended with the election of the Labour Government in 1997.
 In CJ Sansom’s novel Revelation, set in 1543, the hero Matthew Shardlake was one of two barristers appointed to plead before the Court of Requests in support of poor men’s pleas. He was promoted to serjeant at the time of his appointment.
 FCG Gurney Chapman, Justice and the Poor in England (1926) p 21.
 These were: the NHS; universal housing; state security (benefits); and universal education.
 Crown Court cases and criminal cases in the higher courts were not included in the legal aid budget until April 2003.
 This term included landlord & tenant, immigration, welfare benefits, consumer law, debt, and employment cases.
 He became chief executive of the Legal Services Commission when it replaced the Legal Aid Board in 2000.
 There was some abuse of the Green Form system. For instance, a solicitor was jailed for five years in 2000 for defrauding the LAB of £2.5 million.
 Legal Aid – Targeting Need (Cm 2854, 1995).
 Striking the Balance, Cm 3305 (1996).