At the end of April my six years as Chair of the Legal Services Consumer Panel came to an end, and I have passed the baton on to Tom Hayhoe. A good time to reflect, therefore, on what has been achieved in the last six years and what is still to be done. With a heavy heart I have to say that the latter outweighs the former.
It is true that there have been some hard-fought successes. I inherited the delivery of the CMA report on legal services, which found that the legal market was not working well for consumers and made some clear recommendations about the need for transparency and for reviewing the structure of regulation. Some real advances in transparency have been made (though it has felt like pushing water uphill to secure them): consumers are now finding it easier to discover what legal services will cost them and how to compare different providers, and as a result they have become more active and informed in making their choice. The front-line regulators have taken on board the principles of consumer-focused regulation and have vowed to improve their systems and processes in response to our report on this subject. They are beginning to conduct more and better consumer research and engagement, and to monitor and evaluate the impacts of their policies, including on outcomes for different groups of customers. The Legal Services Board and others are looking carefully at the need to ensure consistency and fairness in financial protection for legal service consumers. And, critically, issues about ethical standards in the legal profession, and the widening chasm of unmet legal need, are now recognised as vital subjects for regulators, professional bodies and government to address.
And yet. Even on transparency we are yet to see any evidence of regulators or providers seriously tackling the need to formulate and promulgate useful indicators of quality, though the Legal Services Board have suggested that they might take enforcement action on this if there are insufficient signs of progress by this autumn. If consumers only have clear evidence of price, without anything on quality which enables them to make properly informed comparisons, how can they make sensible choices in a professional services market where quality is so important? Why have the providers not been more pro-active in this field, given that transparency on quality benefits them as much as it does consumers, drives up the revenues of the best and drives ambition to be the best? Where are the discussions on the need to reform the framework for regulation, which were started by the CMA report, and taken forward in some depth by Professor Stephen Mayson’s independent review of the regulation of services? And although we have seen more analysis about the problems of unmet legal need, where are the actions and collaborative discussions taking place to tackle them?
It is no exaggeration to say that we now have a two-tiered legal system: on the one hand a very high quality and financially secure legal sector which is available to commercial organisations and individuals with deep pockets, and on the other a sector characterised by scarcity for those with modest means. As Sue James, CEO of the Legal Action Group articulated in a recent article, for those in the second category there is scarcity of free or affordable legal advice, scarcity of skills and knowledge, scarcity of funding, scarcity of courts, legal aid and of lawyers prepared to take on legal aid cases. The Rule of Law index published by the World Justice Project late last year ranked the UK 45th out of 46 wealthy nations on the accessibility and affordability of civil justice. A scathing audit by the NAO in February reported that civil legal aid fees are, in real terms, half what they were 28 years ago, that the impact of these cuts was not being effectively measured, and that a large proportion of complex legal cases, including 40% of family disputes, were conducted without a single legal representative on either side. The Law Society’s data on legal aid deserts shows that 85% of the population in England and Wales do not have a local provider to help them with welfare benefit issues.
It does not need to be like this. Other developed nations seem to be able to maintain a fairer system, with access to justice more widely spread, and without having to spend vast amounts on taxpayer-funded legal aid. There is no shortage of money in our legal sector, it is just very unevenly apportioned. Individuals in the highly paid firms of solicitors and others across the legal sector do some worthy work in giving pro bono advice, as do those struggling to respond to growing demand in law centres, local Citizens Advice offices and elsewhere, but this is nothing like enough, and importantly these efforts are not sufficiently well coordinated or targeted, given the size and nature of the justice gap. What is needed is a huge effort to integrate the ideas, goodwill and skills of all those with an interest in the legal sector, and to find a new way or ways to provide an affordable range of legal services to those communities and individuals who have legal problems but cannot currently afford to pay to resolve them. These efforts can take advantage of recent technological innovations, including the ability to offer services remotely to hard-to-reach but technology-enabled communities in ways which were not possible a few years ago, freeing up scarce face-to-face resources for those who really need them.
This requires a huge effort of collaboration, involving the Legal Services Board and front-line regulators, the Legal Aid Agency, HMCTS, the Ministry of Justice and other relevant government departments, the Legal Services Ombudsman, the pro bono and advice sector, the professional representative organisations, universities and law schools. Collectively they need to consider how to integrate and simplify their offerings to communities and individuals finding it hard to access legal services, and how new sources of financial support can be identified and accessed, bearing in mind such developments as the growth of collective actions and new forms of litigation funding, and looking at solutions adopted in other jurisdictions. Roger Smith (former head of Justice UK) and Nic Madge (retired judge) have written about their ambition for the creation of a National Legal Service, drawing lessons from the creation of the National Health Service and noting that the rule of law and access to justice should be available to everyone. Tinkering at the edges will not be enough, with recourse to competitions for small pots of public money or to minor adjustments in legal aid fees. A much more ambitious programme, with strong leadership from one of the bodies in the list at the beginning of this paragraph, is what we need if we are to raise the UK above the shameful position of 45th in the rich world’s accessibility and affordability ranking on the rule of law.
Sarah Chambers