Legal aid and Law Centres are under threat in the UK, along with the principle of equal access to justice. Geoffrey Bindman QC says it's time for the legal profession to dig into their pockets and help meet the gap in state funding. This week's Friday Essay.
It is hardly surprising that legal aid is a target for government cuts alongside every other public service. This should not detract from the fact that we are witnessing a combined assault on the funding of access to justice which threatens the very existence of the rule of law. As well as legal aid cuts, the government has introduced a new costs regime which will reduce the opportunity for claims to be brought on the basis of “no win, no fee”, and local authorities are cutting the funding of legal and advice services.
The law centre movement began in the 1960s as a source of free legal advice and representation. While the bulk of legal services have continued to be provided by privately run solicitors’ offices and barristers’ chambers, there are now 54 law centres in Britain, mainly in the most deprived urban centres. Not only is their legal aid income being slashed; the local government funding on which many of them have relied is being reduced or even withdrawn altogether.
Recently, the Camden Law Centre closed its doors. Every staff member was issued with a redundancy notice and most have left. The management committee said the closure is temporary and the centre has now re-opened with a heavily reduced service and without its former experienced staff. For several weeks clients were left high and dry, without information about their cases and not knowing how to obtain it.
Camden Law Centre first opened its doors in 1973. At the time I was working in a solicitors’ firm in Gray’s Inn but I was also a Camden Labour councillor. Interest was growing in the development of law centres. I had myself been one of the members of the Society of Labour Lawyers who had written a Fabian pamphlet – “Justice for All” – in 1968. It argued for a national network of centres, one of which, in North Kensington, was soon established with charitable funds. Another was proposed in Paddington with local authority support.
A group of local residents campaigned for a centre in Camden. It included a young barrister, Stephen Sedley, later a Lord Justice of Appeal. My fellow councillors and I agreed to provide the funds to establish the Camden Community Law Centre and I was the first chairman of its management committee. We appointed Walter Merricks, a solicitor (later Chief Financial Ombudsman) as director. As the Camden New Journal recently reported, “the Law Centre has provided free legal advice, representation, and a drop-in service to local residents for 40 years.”
During this period the Council continued to give financial support, and provided premises in Kentish Town, close to where the most needy residents live. The centre has also received legal aid income and its staff over the years grew to about 20 – a mixture of solicitors and advice workers. In addition a number of others gave regular voluntary assistance.
While of course neither Camden Council nor the management committee of the Law Centre can be held responsible for the government’s drastic cuts in legal aid (more of which took effect on 1 April), the Council is responsible for withdrawing contracts to provide advice on housing, welfare rights and debt. The management committee failed to secure alternative funding and has been unable to engage its staff in a viable programme of re-organisation. Some of those so abruptly dismissed had worked loyally at the centre for decades, in at least one case for over 30 years.
A new plan to fund justice for all
When legal aid was introduced by the Labour Government in 1949, it was administered by the Law Society with public funds and all solicitors and barristers were encouraged to sign up to it. Obviously this was little more than symbolic for the City and Mayfair firms who served the property owners and business entrepreneurs. Yet there was some recognition that access to justice regardless of means was a duty of the whole legal profession.
The unique status of the profession is often overlooked, or dismissed with cynicism. It is there to uphold the rule of law and the principle of equality before the law. Much of the work of lawyers is the resolution of disputes, whether by negotiation or through the litigation process in courts and tribunals. It is of the essence of conflict resolution that their should be a level playing field. There has to be “equality of arms” between the parties. That is why it is the professional commitment of lawyers (and indeed of government itself) to remove as far as possible any imbalance which denies equal access to justice. In fairness, most of us recognise this. Unfortunately, too many have ignored the need for that commitment to be reinforced by an obligation to contribute financially.
There is another reason why it is fair to expect affluent commercial and property lawyers to make an especially substantial contribution to the cost of legal services for those who cannot afford them. It is these people who are the source of the popular myth that all lawyers are rich. Because it is widely believed that lawyers in general are overpaid, it has become easy for governments to reduce legal aid funding. The public do not complain, as they do when medical services are cut. The annual legal aid budget, even before the recent cuts, amounted to less than the NHS spends in two days.
The legal press in recent years has been able to report on steady growth in the incomes of commercial lawyers. It is now 12 years since Lord Sumption - now a Supreme Court judge but then still practising at the Bar - acknowledged in a letter to the Guardian that he had earned £1.6 million in a single year. Such earnings may well now be commonplace in such circles and the profits of some City solicitors’ firms often exceed £1 million per partner. In 2011 legal services were said to have contributed £20.9 billion to the country’s GDP.
Of course many lawyers, commercial and others, give free ‘pro bono’ legal services to those who cannot afford to pay, and some give grants to law centres. All credit to them but the spare time services of commercial lawyers can never be a proper substitute for the dedicated and skilled advice of lawyers trained and experienced in the problems faced by legal aid and law centre clients. The most useful contribution they can make is to part with their excess earnings. The pain would be mitigated by tax reliefs, at least when subsidising law centres, which are usually charities.
How can this be achieved?
Strenuous efforts have been made in recent years to persuade City law firms and commercial chambers to give money to support law centres and access to justice generally. The Access to Justice Foundation is a worthy initiative which has promoted such fund raising. It supports a scheme, which has been successful in the United States and Commonwealth countries, whereby firms donate unclaimed interest received on client accounts. A few firms have agreed to do this but the sums raised are small because interest rates are low. Similarly, efforts have been made to raise funds by charitable activities such as “the London Legal Walk” led by senior judges. The proceeds of fund raising in the more prosperous quarters of the legal profession have fallen far short of what is needed. More importantly they pale into insignificance when contrasted with what these lawyers could afford without reducing their very high living standards.
It is time for more effective measures. In the early 90s the Law Society appointed some of its members to form a working party on pro bono. I was one of them. I argued for a levy on solicitors of profits above a certain level, I think at the rate of 10%. This could produce several millions today. There were different views among the members and we compromised by recommending a voluntary levy. The Law Society decided to consult some of the large City firms to see if they would support it. Disappointingly, it received a resounding thumbs down. Before the 1997 general election, the Labour shadow minister of justice (now Lord Boateng) supported the idea of a compulsory levy, but in government he was given a different ministerial job and his party did not pursue his proposal. It should now be revived.
To recap, there are two main sources of funding which need to be pursued to maintain the law centres and access to justice. These are public funding, both from central and local government, and funding by private donors, especially the legal profession itself. A third possibility for law centres is to charge fees for their work, or some of it. This has only recently become possible through a relaxation in the regulations that previously prohibited it. Several law centres have apparently embarked on fee-paying work with enthusiasm and there may be limited scope for it. It is bound to be limited unless law centres stray far from their traditional expertise. Personally I would like to see the law centres remain a free public service but in these hard times it may be that this source of income cannot be ignored.
The government and the legal profession both have a duty to keep legal aid and the law centres alive. Government has the greater responsibility and the public has much to lose by their increasing inability to get legal assistance. The withdrawal of funding may indeed be a false economy, thrusting the cost of social dislocation onto other services. However, the attitude of the organised legal profession in the past – that legal services for the disadvantaged are solely a government responsibility – is no longer tenable. The government is entitled to ask for a much greater contribution from the profession.