Save our Plenet

D-Day is upon us. 6 October is, of course, the long-awaited deregulation day for legal services and the most significant step in a liberalisation program set in train by Sir David Clementi's 2003 review, which has been frequently characterised by reference to the City's 'big bang' back in 1986.

Whether it's 'big bang' or 'damp squib' '“ and one suspects the great British public couldn't give two stuffs for 'Tesco law' '“ this new era is being introduced alongside a radical restructuring of the architecture of our 'access to justice' model. Some would call it a demolition job.

The Legal Aid, Sentencing and Punishment of Offenders Bill aims to cut £350m out of the £2.1bn budget through massive reductions in scope '“ clinical negligence, education claims, family cases without domestic violence etc and pretty much all social welfare law will no longer be covered '“ and eligibility. The reforms of the 'no win, no fee' model means scrapping the recoverability principle which both de-incentivises lawyers, and erodes precious damages.

Do the two issues '“ deregulation and access to justice '“ have much in common? Of course, they do. However, if you approach the issue of deregulation through the lens of the legal press you might think that the Legal Services Act 2007 had nothing to do with the experience of clients (good or bad) and was all about making life more difficult for traditional high street lawyers. The rationale for the LSA is to open up the market for the benefit of consumers even if the momentum for change might have been driven by other factors (for example, the solicitors' profession's inability to sort out complaints handling).

There has been talk about the transformative potential of alternative business structures to breathe life into a dying legal aid sector. To many legal aid lawyers that seems far-fetched. News that the country's biggest civil legal aid law firm Duncan Lewis was 'courting' City suitors and 'preparing to be taken over' by a company listed on the FTSE 250 index was greeted with derision. ('What have they got to sell?' sneered one blogger on the Law Society Gazette's blog).

Building legal capability

I believe that the two issues could come together through a reinvigoration of another struggling part of the legal landscape: the public legal education movement. PLE is about prevention and about developing people's own legal capability so that they can deal more effectively with life's problems. In light of the scale of the cuts, ministers should be taking a strategic approach to developing that capability; however, instead they have taken the axe to the budget for PLEnet. But the profession should also begin to take PLE seriously.

The expression 'justice gap', as in the Jures/Solicitors Journal series, refers to 'the increasing section of the public too poor to afford a lawyer and not poor enough to qualify for legal aid'. 'At the heart of any notion of a decent society is not only that we have rights and protections under the law but that we can enforce those rights and rely upon those protections if needed,' says Michael Mansfield QC.

Too much of the 'access to justice' debate is focused on the final stages of the legal process where things have gone so badly wrong that a lawyer is needed. But access to justice isn't just about legal aid nor is about the ability of lawyers to bring cases on behalf of their clients. But, of course, context is everything. The Legal Aid, Sentencing and Punishment of Offenders Bill will scrap legal aid for 'social welfare law' (welfare benefits, employment, debt, most housing and immigration) and private family law including advice on divorce, child custody, and child support. I'd argue that the justice gap also refers to the shocking information gap that faces the newly disenfranchised.

Mass legal exclusion predates the coalition and its predecessor government. It has been well documented that up to two thirds of the public are unaware of their legal rights or of the processes that may be applicable to the resolution of the problems of their everyday lives (Legal Services Research Centre/Plenet 2010).

Where does PLE fit in? It aims to 'work on a number of different fronts to ameliorate the opacity of the legal system by building the legal capability of individuals', write Martin Jones and Lisa Wintersteiger, formerly of Advice Service Alliance which used to run PLEnet and now of a new organisation Law for Life: The Foundation for Public Legal Education. The levels of legal exclusion currently experienced by people are not simply a matter of 'poor law' for people living at the margins. 'Evidence suggests that people from middle and higher income households are also unable to make sense of the law and feel undue reliance on legal advice because of a lack of basic information or self-help support,' they argue. 'Legal professionals are part of a process for gaining access to justice. They are not or rather should not be an arbitrary gatekeeper.'

They argue that the pressing challenges of the current proposed reforms might be 'the catalyst that raises the need for PLE to the fore and gives this issue both political and economic prominence'.

Removing the safety net

Certainly, the legal aid reforms combined with local authority cuts will destablise the already precarious network of the legal not-for-profit sector that provides the first port of call for those looking for help. It's happening now. The Law Centres Federation reckons that as many as 18 of its 56 law centres could shut their doors. Over the summer we saw the closure of the Immigration Advisory Service and Law for All.

Law centres and citizens advice bureaux provide the 'early intervention' safety net for many. Prospective litigants are given a reality check as to the validity of their legal claims, their value plus an understanding of the costs and ordeal of bringing a legal action. If that safety net disappears, many people will flounder, give up on legitimately held rights or else go straight to court.

Litigants in person (often dismissed by lawyers as 'vexatious' or plain bonkers) are about to become much more commonplace. For example, there were 211,000 family cases last year where people received initial advice and assistance under the family 'legal aid' scheme and a further 53,800 cases where they received representation before the courts. All family cases are to be scrapped under the legal aid scheme unless there is evidence of domestic violence. The courts are already struggling and a new generation of DIY lawyers could bring them to a grinding halt.

Dangerous and unreliable

The threat of competition as a result of the deregulation programme has meant that law firms have been galvanised into action: ploughing huge amounts of money on marketing schemes and dreaming up brands to see off competition from retailers, banks and whatever competition is waiting in the wings. The internet, rather than being a useful resource for those in need of legal help, has become too crowded. It is difficult for consumers to navigate and unreliable. It can be a treacherous place for those seeking legal help when law firms and claims companies regard it as a marketing opportunity to trade prospective clients for referral fees.

In Closing the Justice Gap, the first publication in the Justice Gap series, Crispin Passmore, strategy director at the Legal Services Board, argued that 'the collective knowledge of lawyers could be harnessed by pro bono'. Why not? It doesn't seem that difficult.

I am not suggesting that PLE can in any meaningful way fill the justice gap, nor that it is all about online information. It's not. But I would argue that the dearth of reliable online information about legal rights is shocking. There are notable exceptions (Citizens Advice's 'Advice Guide' and Advice Now's 'Living Together') but there is an online advice desert out there.