Q+A-How will UK legal-aid cuts affect access to justice?

By Rebekah Curtis

LONDON (TrustLaw) - Time dedicated to pro bono legal work is likely to be increasingly important in the UK due to government spending cuts, but it can never substitute for legal aid, the London-based Access to Justice Foundation says.

Its CEO, Ruth Daniel, spoke to TrustLaw about the foundation’s work, how government cuts in legal aid might affect pro bono, and the state of access to justice in the UK:

Why was the Access to Justice Foundation set up?

The foundation was established in 2008 by the Law Society, Bar Council and Chartered Institute of Legal Executives, working with the advice sector, in order to increase access to justice for the most vulnerable in society. We do this by raising funds from pro bono legal costs and other sources, and distributing those funds to pro bono and advice agencies throughout the country in order to support the provision of free legal advice.

Where do the foundation’s funds come from, and how are they distributed?

The foundation is the prescribed recipient of pro bono costs under section 194 of the Legal Services Act 2007, which means that whenever a pro bono costs order is made by the court, the money has to be paid to the foundation. Before 2008, a party represented by pro bono lawyers could not obtain costs against the other side.

We also raise funds through other campaigns such as the “It’s Not Just Peanuts” campaign. This campaign targets client funds that lie dormant in solicitors’ client accounts when the client can no longer be traced.

The foundation takes a strategic approach to the distribution of funds so that valuable resources can be targeted where they are most needed. Our work is national in scope, and we work closely with a network of seven Legal Support Trusts around England and Wales.

The funds are distributed to organisations that really make a difference to people’s lives. We have provided financial support to numerous important strategic projects and charitable organisations, including AdviceUK, the Bar Pro Bono Unit, Citizens Advice, the Environmental Law Foundation, CILEx Pro Bono, Law Centres Federation and LawWorks.

How do pro bono costs work?

Pro bono costs are just like ordinary costs but where a party received free legal advice. (They) can be ordered by the court or included in settlements if a civil case is won with pro bono legal assistance. The costs cover any period when free representation was provided and may apply even if only one of the lawyers acted for free (i.e. you can also seek normal costs for the fee-paid work). The amount is based on what a paying client would recover.

The costs must be paid to the Access to Justice Foundation. Unpaid pro bono costs can be enforced like a normal costs award, either by the winning party or by the foundation itself. Pro bono costs can be awarded in the County Court, the High Court and the Court of Appeal Civil Division. The Supreme Court will be able to award pro bono costs from April 2013 onwards.

Although the number of pro bono costs awards has been increasing over time, there is still a lot of unfulfilled potential for orders to be made. Pro bono costs not only raise much needed funds for the advice sector, but also help level the playing field between clients who can afford legal representation and those who cannot, as well as encouraging settlement of cases.

We need to increase awareness in order to ensure pro bono costs are requested wherever possible and thus secure valuable funds for the pro bono sector. If a client receives free legal advice and wins their case, the losing party should not get away without a costs order. Seeking an order for pro bono costs is simple but we offer additional guidance for solicitors, advocates and advice agencies at: http://www.accesstojusticefoundation.org.uk/funds-in/pro-bono-costs/

 Has there been a rise in pro bono work in the UK?

This is difficult to say as there are no official statistics, and lawyers who undertake pro bono work tend to be modest about it. The Law Society published some research on the subject in the 2011 Pro Bono Yearbook that found that almost half of all solicitors in private practice had undertaken pro bono work in the previous 12 months, with an estimated value of 518 million pounds. This figure does not include pro bono work of solicitors in the employed sector, barristers, legal executives or law students.  It therefore seems there is an impressive amount of pro bono work done in the UK. 

How would you describe the state of access to justice in the UK?

The main debate centres on government cuts to funding for services which provide access to justice via legal aid and the free legal advice sector. The most recent catalyst to this debate is the Legal Aid, Sentencing and Punishment of Offenders Act 2010 (LASPO) which will inflict 350 million pounds of cutbacks on the annual legal aid budget of 2.2 billion pounds.

The Law Society accuses the cutbacks of ‘false economy’, and Lord Bach (William Bach, former Labour justice secretary) has said that the cuts are "not just bad but actually wicked". The passage of LASPO into law despite 14 rejections by the House of Lords indicates the depth of the controversy.

It is not yet entirely clear what the extent of the effect of the cuts in government funding will be. In the majority of practice areas, the worst effects will take time to manifest themselves. Although the principle of access to justice remains, the ranks of those who are granted it may well be thinned.

How might next year’s cuts in legal aid impact pro bono work?

Although pro bono can never be a substitute for legal aid, the cuts in government spending mean that the willingness of legal professionals to donate their time to pro bono work is likely to be increasingly important as demand for free legal advice may well increase.

However, as the impact of the cuts in government spending on the advice sector is as yet unclear, so the impact on pro bono work is unclear. Law centres and other advice centres are a key source of pro bono clients. If they close, then this may limit the work that pro bono lawyers are able to do.

Do people in need generally know how to access pro bono support?

Many pro bono clients are referred from legal advice clinics, law shops and local Citizens Advice Bureaus (CABs), or are private clients who are no longer able to pay for legal fees towards the end of their litigation. This illustrates the important role of legal advice agencies in their local communities, and why it is crucial to keep law clinics and CABs open and running.

Another point of access for those in need is the National Pro Bono Centre, which houses the legal profession’s national clearing houses for pro bono work. The centre has helped to provide a central resource for those seeking pro bono support, making it easier for those people to receive help.