Professor Liz Curran explains the differences between UK and Australian legal aid
As a researcher, solicitor, educator, and policy reformer who has spent time in the Australian and United Kingdom (UK) jurisdictions, I have a unique vantage point in examining the differences between the UK and Australian legal aid systems and compare developments both positive and negative.
In the context of the recent strike by criminal barristers over the UK’s legal aid system, I hope my work can inform improvements to ensure people are equal before the law. This is critical to ensure that human rights are protected and to enable recourse and remedies when the fundamental rights of all citizens within a democracy are not accorded. Being open to the innovations and lessons of different jurisdictions, while acknowledging local contexts, can give rich ideas on tackling societies most difficult and challenging problems. As a resident of the UK (having recently taken up a position at Nottingham Law School) I see it as my imperative to ensure good practice, sensible evidence-based policy and funding, and organising of service delivery occurs improving outcomes for people.
The focus of my research and legal practice over many years has been on the people who experience disadvantage. This includes the poor, people with mental health issues or disabilities, victims of family violence or domestic abuse, refugees and asylum seekers, children and people who experience discrimination and so on. Although the barristers’ strike in the criminal sphere has received a lot of attention, there are huge issues with legal aid in a range of civil law matters. Such matters are pivotal for day-to-day survival. In the UK, we have seen the gradual erosion and stripping back of people's ability to seek and receive help with their civil legal problems. This is due to restrictive funding arrangements and increasingly problematic service constraints. While the right to a fair trial and ensuring the safety and security of citizens are important, if the range of other issues the law protects are inaccessible, the law as a protection becomes illusory.
Access to justice
The research is clear. People experiencing disadvantage are disproportionately likely to have substantial and multiple problems, with a sizeable proportion of those people taking no action or facing difficulty in navigating the legal system and support services. This causes stress and anxiety which can lead to poor health outcomes. (Balmer et al. (2006) ‘Worried Sick: The experience of debt problems and their relationship with health, illness and disability’ 5 (1), Social Policy and Society 39). The formal justice system tends in some cases to exacerbate or compound problems. The co-occurrence or clustering of certain legal problems highlights many legal problems and non-legal problems are often meaningfully and integrally connected. (Pleasence et al. (2015), Reshaping Legal Assistance Services: Building on the Evidence Base, Law and Justice Foundation of NSW, Sydney, Australia). All these aspects combine with this poor legal knowledge and poor legal capability. The civil law issues include the right to income support that enables people to pay their bills – including food, educational expenses, utilities and pay their rent. In addition, people should be able to live safely and have a home without threat of inappropriate eviction and risks to life from violent partners. While the law offers community members rights, we see increasingly the UK system has become largely unnavigable, complex, fragmented, and siloed.
The latest research
My recent research evaluations (Curran (2021) ‘From Fragmented to Holistic: Starting the Evidence Base for Client – Centred Practice through Navigation: a report on the research evaluation of the Hammersmith Fulham Law Centre ‘Women’s Crisis Navigator Service Project’ (Pilot); AHRC and Zhao et al, 2022 unpublished) undertaken for UK agencies verify this experience in a range of qualitative interviews which I undertook as part of the commissioned research. This research engaged with law centres, food banks, women's refuges, mental health services, refugee and asylum seeker services, services to young people and so on. It also included community members using the legal system. The impact of covid-19 has worsened the situation. Agencies at the frontline report huge demand, reduced service capability through endless and continuous austerity measures and exhaustion caused by short term, sporadic, and insecure funding. This has caused agencies to close, change how they take referrals, and the service landscape has become even more complex and opaque. It creates a huge impost on front line services due to cumbersome accountabilities and funding bids. This leaves the UK legal aid sector exhausted. The closure of courts and long waiting lists in the UK preceded covid-19, but is now further exacerbated.
Comparing legal aid systems
The legal aid systems in the UK and Australia are vastly different and yet, many of our laws proffer the same protections as we both have common law systems based on the Westminster model. The UK uses the ‘judicare model.’ It consists of the Legal Aid Agency (LAA) that awards the contracts in legal aid matters often with limits on the areas of work the firms or law centres can undertake. The LAA allows only certain kinds of work funded by the government. This means the work set out by the terms of its contracts with legal aid often constrain areas of work firms and law centres can do that is funded. Observing and researching, it makes me conclude this model fragments the service provision from the point of view of the person trying get help.
By contrast, the ‘mixed model in Australia is funded under a National Partnership Agreement negotiated with all levels of government, Legal Aid Commissions (LACs) and community legal centres. It is ‘mixed’ in the sense that private firms provide legal aid services alongside publicly funded salaried legal aid and legal centres. LACs, while funding private firms for legal aid work, have their own publicly funded salaried in-house legal aid lawyers who conduct case work, information, and advice alongside public legal education, undertaking law reform based on what they see on the ground. This gives them routine experience into the lives of the disadvantaged clients who are their remit. Side-by-side community legal centres (CLCs) are publicly funded to provide information, advice, casework, law reform and legal education. They are not circumscribed in areas of work but can assist one client with multiple legal problems. They are supported by specialist CLCs such as the Consumer Action Law Centre, Social Security Rights Victoria and Jobwatch.
Like the UK’s sector, the Australian sector is poorly resourced and underfunded and they likewise suffer the vagaries of short-term funding and having to supplement funding from philanthropy. The key difference is its more flexible model enables holistic legal service delivery, joining-up with other non -legal services to whom people are likely to turn to for help due to trusted relationships. These approaches are making a difference in Australia. Also, the ability to engage in strategic problem solving (Curran (2021), Policy Research, Submission Writing and Advocacy for Change’ Better Law for a Better World: New Approaches to Law Practice and Education (Routledge UK, Oxford), Chapter 12, 203-204, 207- 209) and earlier intervention rather than allowing people to end up in crisis, makes sense as Susskind (Susskind R (2008) ‘Access to Justice’ The End of Lawyers? Ch7, Oxford University Press, Oxford) has noted in the UK context.
The UK LAA, in my view, acts as a contracting board or contract manager. Its criteria are largely set by civil servants, with very little contact with service realities on the ground which both the lawyers and clients have to navigate. By having an overly bureaucratic structure, it takes resources away from the frontline.
In Australia, the ‘legal assistance sector’ (LAS) is broader than just legal aid and is described as a mix of publicly funded legal agencies working side by side with the private legal sector. The difference between Australia’s model and the UK is, in Australia there is flexibility in legal work that can be undertaken by the LAS. As the delivery model not only includes the provision of advice, information, ongoing casework assistance and representation, but also includes the provision of ‘community development’, ‘community legal education’ and law reform, it means real change can happen in terms of legal capacity and system improvement and service innovation. Over the past decade, there has been a willingness to participate and learn from evaluation and feedback. This desire to learn and innovate, in my view, flows from having such a mixed model. The private and public legal assistance sector respect what each has to offer and the expertise of the LAS in working with disadvantaged clients is valued with private firms participating in professional development offered by LAS.
While not perfect, the LAS landscape in Australia enables innovation, collaboration, and opportunity to try different things - despite the funding landscape - with work arounds and ethical legal professionalism (Curran L (2017) ‘Multi-disciplinary Practice Health Justice Partnerships–Working ethically to ensure reach to the most in need’, 26 Nottingham Law Journal 11). It has seen a burgeoning of multidisciplinary practices (Curran (2022) 'Going deeper' - the Invisible Hurdles stage III research evaluation final report. Nottingham Law School and Curran Consulting: Enhancing Justice & Human Rights; Curran L (2020) 'Getting out of Debt: The Road to Recovery for Victim Survivors of Family Violence' ANU and Consumer Action Law Centre) and collaborations for change that have been evaluated as making a difference in people’s lives. There can be a siege mentality that comes from recent events in the UK. My hope is dialogue and new ways of having a positive impact will flow as we work together to bring innovative practice and research to light.
Professor Liz Curran is associate Professor in clinical legal education and school research impact lead with Nottingham Law School, Nottingham Trent University and expert adviser on the Law Council of Australia’s Justice Project: ntu.ac.uk/staff-profiles/law/liz-curranTags:
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