By Rebekah Curtis
LONDON (TrustLaw) - A UK bill due to cut legal aid will limit equal access to justice to the poorest and richest, while hindering the provision of pro bono services where they are needed most, according to the president of The Law Society.
In a written interview with TrustLaw, Lucy Scott-Moncrieff, president of the association representing solicitors in England and Wales, explained how next year’s planned cuts could affect pro bono work.
How would you describe the state of access to justice in Britain?
Under threat. The introduction of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) removes entire categories of law from the scope of legal aid, and effectively restricts equal access to justice to the very poor and the very rich.
Reducing the scope and funding (of legal aid) means that legal advice and representation, particularly in complex cases where it is most necessary, will be unaffordable for many more people other than the very rich – who will be able to pay for it themselves – and... some of the very poor – who in specific areas will still be able to access the limited remaining funding.
How can access to justice be improved?
The Law Society presented a number of detailed options in its Access to Justice Review published in 2010, which were unfortunately not carried forward by the government. The Society is now looking at how it can work with the profession to maintain access to justice when LASPO comes into effect next May, including harnessing technology, unbundling, and supporting new business models.
Concern with improving access to justice should not be the sole responsibility of the legal profession because it is the fundamental basis for the rule of law and civilised society. An area where policy makers could make an important contribution is, for example, through developing people’s legal literacy and capability through public legal education so that they understand their legal rights and responsibilities and are better equipped to anticipate, and avoid, legal difficulties.
What kind of technology could be used, and what would unbundling involve?
Technology could assist... in a number of ways... such as accessing clients through video facilities like Skype and apps for mobile phones, reducing overheads by running a virtual law firm – such as Scott-Moncrieff – and delivering services more efficiently, such as through online systems enabling clients to self-complete documents throughout a standardised process to be reviewed by a solicitor.
Unbundling means helping clients with particular bits of their case that would most need a solicitor’s support rather than taking in (a case) wholesale on a retainer. There are some regulatory issues this raises around the degree of responsibility (of) a solicitor in respect of a case that they haven’t worked on in its entirety – and might therefore be missing important information.
What areas of law require more attention from pro bono?
The obvious focus is areas of law that will be coming out of the scope of legal aid. Areas affected include non-asylum immigration, employment, welfare benefits, clinical negligence apart from birth injury cases, consumer, most education work and most debt work.
They are not being removed because there is any evidence that people currently in receipt can afford to pay for legal advice and representation but because of a political choice, and there is likely to be huge demand for pro bono in these areas.
The market will respond to LASPO and we have yet to see the extent to which affordable legal services will develop in these areas, but there will undoubtedly be more people with legal needs that without pro bono assistance will otherwise be left unmet.
In what ways might the looming cuts in legal aid impact pro bono work in the UK?
They will make it more difficult for pro bono work to be undertaken in the areas where it is most needed. Firstly, the infrastructure through which much pro bono work is supported and enabled will be undermined. With the loss of legal aid contracts, law centres and other not-for-profit advice agencies, through which many solicitors do pro bono work, lose most of their funding, compounding local authority funding cuts and threatening their survival.
Secondly, without public funding and (with) a client base that is extremely unlikely to be able to afford to pay for legal advice, expertise in areas such as social welfare law and debt will be lost. Such expertise is vital in the training and supervision of pro bono lawyers and therefore its loss is a double assault on access to justice.
Meanwhile legal aid lawyers in private practice who undertake a huge amount of pro bono work as a matter of course will find it increasingly difficult to maintain this in the face of further cuts to already very low rates of pay. Clearly this means that at the very point that pro bono is needed – because public funding is not available and clients are unable to afford it – the capacity to provide it will also be significantly reduced.
How can pro bono work fill in gaps after cuts in legal aid?
Pro bono work will not be able to fill in gaps, for all the reasons highlighted above. This warning was loudly and unanimously voiced by the pro bono community and the not-for-profit advice sector in responses to consultations throughout the passage of the bill. The fact is that more will need to be done with less, and this will require pro bono resources to be deployed as strategically as possible, for example by identifying opportunities to litigate that will create the greatest impact.
How can pro bono’s reach be furthered?
Through coordination and focus. It is essential now more than ever that we work together to ensure that need is identified, resources are used efficiently, and the duplication of effort is eradicated. Communication is essential – until we know more about how and where pro bono work is being carried out, the opportunities for referral, joint working, communication and fundraising cannot be exploited.
As lawyers, we all need to think carefully about where we can use our unique legal skills and knowledge to add most value and focus our efforts there. Much has been achieved in recent years with greater efforts to collaborate between lawyers, firms and clearing houses, but we cannot be complacent.
We also need to ensure that every lawyer knows how to obtain pro bono costs orders in civil cases where the winning party is being represented pro bono. This is money that goes directly to the Access to Justice Foundation to fund more pro bono projects across England and Wales, and is funding for justice that must be unlocked. Thousands of pounds are still being overlooked because awareness of these orders in the profession is still not high enough.