Filling the gap: pro bono v legal aid
Lawyers aren't keen on working for free, but they don't want to let vulnerable people go unrepresented either, says Sinead Hayes
Access to legal advice may be all that stands between vulnerable people and injustice. Catastrophic cuts to legal aid have created an era where society’s most vulnerable have nowhere to turn for legal assistance when they need it the most, and the focus on providing free advice has now reached an all-time high.
Historically, pro bono work was undertaken by lawyers so that access to justice prevailed, particularly for members of the public who could not otherwise afford it. Pro bono used to be delivered on an ad hoc basis but we are now seeing a more collaborative approach in providing such services. As the legal climate continues to change, will there be an inevitable increase in pro bono services?
That may be the case, but the reality is that legal aid cuts have had an astronomical effect on access to justice. This cannot continue, nor should legal aid services be replaced by pro bono. ‘Mind the gap: an assessment of unmet legal need in London’, a survey of MPs’ surgeries undertaken by Hogan Lovells and the All-Party Parliamentary Group on Pro Bono, highlights the rising need for free legal assistance, particularly for social housing, homelessness, immigration, and asylum law problems. The resounding message of the report was that pro bono should be seen as an adjunct to, rather than a substitute for, legal aid.
The Law Society’s pro bono charter states the society’s belief that ‘a commitment to access to justice is at the heart of the legal profession and that pro bono work, as one method of achieving this, is an integral part of the working lives of solicitors. Pro bono legal work is always only an adjunct to, and not a substitute for, a proper system of publicly funded legal services.’ It is clear the profession sees pro bono and legal aid as two separate avenues to advance access to justice, but does the government? Do we run the risk of increasing our pro bono services without solving the central problem of decreasing eligibility for legal aid?
Young Legal Aid Lawyers recently polled its members in response to government cuts to legal aid. The poll asked whether lawyers should keep working for free to provide access to justice. Interestingly, the results showed 59 per cent of respondents believed that lawyers should no longer work for free.
In 2012/13, prior to LASPO’s introduction, 724,243 civil law cases were funded by legal aid. In 2015/16 that figure fell to 258,460. YLAL recently took to social media in a further campaign to highlight the harsh realities of the cuts. Many lawyers, charities, and volunteer organisations participated in the discussion by providing a quote about their public duty. As lawyers, it is our public duty to inform society that legal aid cuts prevent people from holding public bodies to account, even though the other party will undoubtedly have legal assistance.
It is the government’s responsibility to ensure access to justice for all, particularly the vulnerable and those who cannot afford to pay for it. However, pro bono is increasingly filling the gaps where this does not happen. Will we end up with a society where the unmet legal need becomes increasingly larger? Will we end up with a ‘postcode lottery’ for access to justice?
YLAL believes that access to justice is a right, not a lottery. We invite the government to substantively review the impact of LASPO on the administration of justice, particularly in the context of escalating use of pro bono services. We believe that pro bono cannot and should not ever be thought of as an appropriate alternative to a properly funded legal aid system.
Sinead Hayes is a solicitor at Irwin Mitchell and a member of Young Legal Aid Lawyers