Guest post by Dr Liz Curran, professor of justice reform and legal innovation at Nottingham Law School. The views in this blog are her own
Curran: Mixed model of provision
Many of us have been breathing a sigh of relief since the successful appeal in the Mazur case [1]. It is also a victory for access to justice enabling under ‘authorised’ legal supervision an array of tasks to be performed by paralegals.
This is critical in the current context in England and Wales, where there are advice deserts, a retreat from legal aid and an attrition of people from the charity sector due to limited pay and resourcing by successive governments. A third of people have unmet legal need.
The current Legal Aid Agency (LAA) model is inherently flawed and it goes beyond mere data breaches [2] – it cannot innovatively respond to increasing challenges.
This was flagged as an issue in the report Regulatory Leadership in Access to Justice [3] by myself and Professors Jane Ching and Jane Jarman (see the Legal Futures news story [4] too).
The LAA is neither strategic nor shaped by an access to justice lens. No amount of further tinkering and injections of funds will work. Legal aid reform is on the government’s agenda but my concern is that it is tinkering around the edges.
It is time to look again at both the provision of civil legal services and the way in which they should be managed.
The current arrangements have not delivered impressive results. Legal aid delivery is decided without direct policy input based on the realities of what is the best form of provision. It is driven by a market model ill-suited to address high levels of unmet need.
In addition, the arrangements for independent decisions on merits are ramshackle, with other scandals waiting to happen.
The approach of the LAA is a significant drain on the public purse; it is known to misdirect people [5], making referral pathways convoluted, leading to referral fatigue and people giving up.
And yet there are proven ways forward. In a policy brief to government, I have suggested it ought to establish an access to justice committee to consider a ‘mixed model’ [6] and a new body that facilitates collaborative service delivery and aligns with achieving broader community outcomes, such as reducing inequality and joining up service delivery.
Led by the courts and legal services minister, the committee should explore a new statutory, independent legal aid entity, called the Community Commission for Legal Aid (CCLA), to replace the LAA.
This should be informed by what works overseas in comparable jurisdictions such as Australia and the recent modest Scottish trial. A similar argument has also been made by Roger Smith and Nick Madge [7].
A mixed-model approach [8] would create a ‘one-stop shop’ for clients, with strong referral pathways for issues beyond legal expertise, such as counselling, identified during client interviews.
It would involve publicly salaried staff, as opposed to charity sector staff, with core funding for information, advice, early intervention, public legal education, case work, advocacy and policy reform.
The idea is to ensure a one-stop shop [9], with strong referrals in areas outside legal expertise. This will minimise clients having to have their legal problems resolved in more than one location or changing personnel too often.
Each develops specific expertise and knowledge about the needs of their client communities. They then work alongside private lawyers benefiting from legal aid.
The mixed model also enables systemic reform [10] to occur, building better systems, laws and their administration but informed by case work, with clients addressing recurring problems at their root.
As a practitioner in such a system for over three decades in Australia, I have experienced both first hand and as an evaluator its power to address the problems that exist in the UK.
It would move us away from the current complex contractual arrangements and hard-to-justify demarcations and siloed operation. These are wasteful, confusing and unhelpful for the most disadvantaged.
Whilst digital innovation will lead to more efficiencies, alone it will never be adequate to address the vast gaps in equality before the law.
There is widespread digital exclusion and low capability, and so a digital approach only works if it addresses barriers and a blended approach is taken.
The role of properly resourced trusted intermediaries (i.e. non-legal supports) working with community lawyers and salaried legal aid lawyers will be critical.
Vulnerable groups risk digital exclusion, so initiatives must be people centred.
The legal aid system is creaking at the seams, and practice as a legal aid lawyer is becoming increasingly unsustainable.
An independent body that operates the legal aid system at arm’s length from government should replace the LAA and action must be taken to address the administrative burdens that plague both the public and providers
Opponents of this idea will have considerable institutional suspicion of creating another quango. But that is not what this is – the CCLA would also provide direct legal services to the community alongside other existing charities such as law centres, while also building a strategic, coherent picture that brings currently siloed service provision into a joined-up, effective collaborative model that drives services to those people currently missing out and excluded.
The CCLA would be positioned to assess why and how things work, with sound consistent evaluation practice embedded. This is important in good policy progress.
My policy brief [11] provides detail on legislative frameworks and how it has and might be established and operationalised, along with the many benefits of a mixed model.
Rather than say ‘no’, let’s look at what is possible with a mixed model of service informed by a solid evidence base and refinements over decades.
Too many people are missing out here with a two-tiered justice system that the current legal aid system engrains. It means equality before the law is a pipedream, when it could be a reality.