New thinking

'This isn't a time for faint hearts or cuts, short or otherwise,' exhorts Michael Mansfield QC in Closing the Justice Gap: new thinking on an old problem, a new collection of essays about access to justice published with this week's Solicitors Journal.

He simply doesn't accept that our £2bn legal aid bill must fall prey to the kind of swingeing cuts widely feared in the public services. After all, there's always plenty of money around 'to bail out banks, contemplate new runways, mount Olympic Games, underpin illegal foreign military adventures'. As the never-less-than radical silk puts it: 'Once again the real question is: what kind of world do we really want to live in? The vision of a fair society requires reinvigoration.' That will either be greeted by legal aid lawyers as a rousing call to arms, or a rather wilfully ignoring of the grim realities of public finances in these straightened times.

The idea for Closing the Justice Gap is to bring together 'radical, exciting and innovative ways to reform and improve access to justice'. A tough challenge, as we readily acknowledge. Contributors include campaigning lawyers and leading thinkers in legal aid such as Mansfield, Roger Smith of JUSTICE, Sir Geoffrey Bindman, Steve Hynes of the Legal Action Group and David Harker of Citizens Advice. The book will also be available to download on solicitorsjournal.com.

The collection combines Mansfield-esque idealism with some fairly hard-headed pragmatism. Publicly funded law is in an unhappy place. The last few weeks illustrate vividly how legal aid policy has lost the plot. We have read the National Audit Office's damning report of the Legal Service Commission's financial incompetence.

Sir Ian Magee (following his Ministry of Justice-commissioned review) has just proposed axing the troubled body (or 'transform it into executive agency of the MoJ'). As Michael Zander QC, the emeritus professor of law at the London School of Economics, says in his foreword to our collection: 'The mood is dark. The talk is full of gloom.'

Positive proposals

Happily, our eminent panel of essayists were strictly forbidden from reflecting on present miseries. Instead, they were asked to take part in 'a positive and very different contribution to a debate that's stuck in something of a rut caught between government intransigence (as lawyers and those working in the advice sector might see it) and professional self interest (as non-lawyers and ministers might see it)'.

The idea for this collection came from the experience of writing The Justice Gap: Whatever happened to legal aid (Legal Action Group, May 2009) with LAG's director Steve Hynes. It's much easier to critique the system's failings, far more difficult to come up with positive ideas to reform the system (let alone the 'radical, exciting and innovative ways to reform and improve access to justice').

You can read our own ideas in an updated version of the final chapter of The Justice Gap ('New foundations: coordinated solutions towards a new model') at the end of the collection.

Closing the Justice Gap is about looking forward and generating a debate about how best to improve access to justice. To this end, we (respectfully, obviously) set our distinguished collection of essayists some strict ground rules. We insisted that all contributions must be in the 'client interest', 'forward thinking' and 'positive'. There must be 'no point scoring, no complaining about fees etc.'. We wanted to pre-empt the easy criticism that discussions about access to justice are all about lawyers' pay.

Contributors were then asked to sign up to six 'foundation' principles, as expounded in The Justice Gap:

• Access to justice is the constitutional right of each citizen.
• The right of access to justice applies equally to civil and criminal law.
• The interests of the citizen should determine policy on access to justice issues, not those of the providers of services.
• The constitutional right to be regarded as innocent until proven guilty should be respected as the cardinal principle of criminal law.
• Promoting access to justice requires policies across a range of areas including law reform, education and legal services.
• Proposals for reform must take account of the realistic levels of resources but these should not be seen as a defining policy.

Some contributors were asked to explore particular issues, such as whether legal expenses insurance could make a meaningful contribution to 'access to justice' (Neil Kinsella, Russell Jones & Walker) and how to make sure there is adequate funding in group actions (Peter Todd, Hodge Jones & Allen). Tony Edwards, senior partner at TV Edward, looks at criminal defence.

New visions

Other contributors roam more freely, taking on the kind of big themes that rarely surface in the 'access to justice' debate. For example, Laura Janes, founder of the Young Legal Aid Lawyers, in her contribution ('What are legal aid lawyers for?') reflects that it is 'easy to confuse access to justice with access to a lawyer. Surely access to justice functions at its best when lawyers and courts are not required?' She argues for 'a culture in which everyone is imbued with a high regard for the rule of law. This includes eradicating the culture of disrespect for the law as a cost-cutting measure by state agents.'

Roger Smith offers a ten-point plan to overhaul 'poverty law', as he renames social welfare law. His vision is for a national poverty law centre with individual centres bidding for contracts run by the not-for-profit sector. Smith proposes a dedicated fund ('roughly £150m') supplemented by costs from the losing party ('another £20m or so'). Staff would be paid rates 'equivalent to those applying in a comparable public service', such as the CPS.

Crispin Passmore was head of strategy at the Legal Services Commission and, as such, architect of the LSC's CLACs (community legal advice centres) initiative. His contribution might also make uncomfortable reading. Passmore (writing in a personal capacity) reckons that cuts to the £2bn budget of 'anything from five to 25 per cent' are 'impossible to rule out'. 'So there can be no 'invest-to-save' solution. Budget cuts are needed now. Many will argue that we must be honest; saving £500m can only be achieved through huge cuts to scope or eligibility. But there is a choice'¦'

Passmore, now strategy director at the new arch regulator the Legal Services Board, is an advocate for the revitalising possibilities of competition. 'The Legal Services Act 2007 offers a new way forward where legal aid is just one purchaser within a newly dynamic market: government freed from regulatory functions can focus on its role as commissioner of services and to meet its priorities can exercise its purchasing power freely.' Passmore also argues that legal aid needs to find new funding streams 'in a world of low income tax'. He floats the idea of a levy on lawyers '“ £100 a lawyer would raise £15m per annum and a structured levy on firms averaging £5,000 per firm could raise £60m. 'As the legal services market grows so the income from a levy will grow ensuring that the poorest share in improving access to justice from a better regulated market.'

Intriguingly, the levy idea is explored by Geoffrey Bindman, the former chairman of the Society of Labour Lawyers, in his controversial critique of pro bono. He explores the fine line between that movement and legal aid. The official line is that pro bono is an adjunct to, not a substitute for, legal aid.

Bindman advances what he calls 'the ethical case' for every solicitor to support legal aid. He calls for a levy on City firms (rather like the idea of the Robin Hood tax for bankers) to support legal aid. 'In 1949 the price paid by the legal profession for avoiding the imposition of a National Legal Service was its commitment as a profession to manage legal aid. Lawyers whose clients can afford to pay for their services have largely turned their backs on it.'

Of course, we are within weeks of the possibility of a new government. So what, dare you ask, might the Tories do with legal aid? 'We definitely cannot go on as we are,' writes shadow justice minister Henry Bellingham; adding that his party plan to look into changes in legal aid delivery as well as 'radical ideas aimed at bringing money into legal aid'. Some of the ideas explored elsewhere in the collection are currently being considered by his policy team, such as the CLAF and co-opting the interest on client accounts. The Tories have been looking at the French CARPA (Caisse des Réglements Pécunaires des Avocats) scheme, where solicitors' client money is pooled interest generating accounts underwritten by the government. 'If we win the election, we intend to put in place a formal legal aid review,' Bellingham writes. In the world of legal aid there is nothing certain '“ except perhaps the prospect of another review.

Legal aid is a small but vital backwater of our public services that rarely engages the interests of voters. Lawyers and advisers on the frontline know how important 'access to justice' is, as do those who have had to turn to them for help because they have lost the roof over their heads or been made redundant. But, for many, the issues '“ if they are thought about at all '“ are written off as technical, remote and all about lawyers' pay. We hope this collection makes a positive contribution to reframing the 'access to justice' debate so that it becomes of greater relevance to ordinary people.

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