It may not be fashionable, but justice for all is still worth the fight, says Geoffrey Bindman
I began my career as a solicitor in 1960 assisting a partner in a commercial practice in Mayfair. While that was my daily occupation, I spent every Monday evening giving free legal advice as what was quaintly called a “poor man’s lawyer”—attached to the Citizens’ Advice Bureau (CAB) in Hampstead. The well-bred volunteer ladies who ran the CAB coped effectively with many of the practical problems brought to them by members of the public. They were the first port of call for many in trouble: tenants with their landlords; employees with employers; the unemployed and the sick with social and health services; spouses with each other; and consumers with suppliers of all kinds. When a need for expert legal advice was identified, the client would be referred to my weekly session.
The range of problems was vast, as was the depth of my inexperience. I pursued my clients’ grievances with as much legal weight as I could muster, knowing that I was mainly addressing those who had full-time and much more senior lawyers on tap. My willing helpers were glad to type my letters, but I could not always check and sign them before the next Monday. Further weeks would elapse before I could consider replies and discuss them with the clients. Speeding up the process by writing or telephoning during office hours would have meant using my employer’s time. It was a hopelessly inefficient way of providing legal assistance. In 1960, legal aid was limited, the Legal Advice Scheme barely operational, and there were no law centres. My pro bono efforts were little more than a sop to my conscience.
over the shop
In 1963, while trying at the same time to keep a foothold in Central London, I started a legal aid practice above a chemist on Kentish Town Road, opposite another CAB—now long gone. By working full-time for people like those I was trying ineffectually to help in Hampstead I thought I could help to provide them with something approaching that equal access to justice which I naively thought the rule of law was all about.
Golden age?
If I sometimes think of those early days as a golden age I am deluding myself. There never was one. Nevertheless, we cherished the optimistic notion that we were travelling in the direction of equal justice, though far from reaching it.
Somewhere along the way since then the aspiration of equal justice was quietly abandoned, as if it had become an impossible dream. Though the Legal Aid and Advice Act in 1949 paralleled the foundation of the NHS, legal aid by contrast has never been a universally available free service. Legal aid lawyers were paid case by case. For each case the client had to complete an application and satisfy a means test and a merits test. Every application had to be decided by a committee of practitioners. It was an expensive scheme to administer but the poor person who overcame the initial hurdles got more or less the same service as the rich; the lawyers retained their independence of government; and there was a roughly level playing field for both parties to a dispute—the vulnerable individual on one side and the corporation or public institution on the other.
Most of the legal profession signed up to the scheme, but because of location, or because they could not offer the particular skills needed by the disadvantage or because their participation in the scheme was no more than a demonstration of moral support, the active legal aid lawyers were always a small minority of the profession as a whole.
Unlike medical services, for which the needs of rich and poor are broadly the same, many legal services are commercial and linked to private profit. Lawyers could carry on making money from these, so it seemed unnecessary to encourage them to do legal aid by “stuffing their mouths with gold” as Aneurin Bevan had to do to persuade the doctors to sign up to the NHS.
It was a scheme which had a sound basis in principle and which seemed workable in practice. It has been steadily undermined and run down by successive governments.
What went wrong? Of course a scheme run by a privileged elite with public money was problematic for ideologues of both left and right: the left distrusted the class-based professions and the right the use of taxpayers’ money for the welfare of the poor.
In Justice for All, published by the Fabian Society in 1968, some of us proposed a scheme to reduce the role of the private profession: a body of salaried lawyers, publicly funded, working through a network of law centres across the country. Since then some 50 have indeed been established, funded partly by local authorities and partly by legal aid and small government grants, but there has never been sufficient political will to expand them into a national legal service with a career structure capable of matching private practice.
Death by contract
In the 1990s, the government began to espouse the “contract culture”. Employment was replaced by insecurity. The New Labour government of 1997 applied the idea to legal aid. Contracted firms were to be the major resource of a spanking new Community Legal Service. Sadly, a good idea never got off the ground. It was soon revealed as a cynical exercise in cost cutting. It has been progressively undermined by underfunding and over bureaucratisation by the Legal Services Commission quango, which replaced the simpler and user-friendly Law Society-run management.
Two further blows have hastened the demise of legal aid.
First, excluding personal injuries and virtually all other damages cases-for the sake of saving £27m per annum—consigning them to “no win, no fee”, threatens a centuries-old reputation for integrity and disinterested advice; it has robbed legal aid of an important component and a source of income, putting profit into the hands of insurance companies instead of the legal aid fund. Second, the reforms inspired by Carter have already driven away many of the most experienced legal aid lawyers and will relegate legal aid to a marginal resource for limited help for some of those living at or below the minimum wage. The title of the Carter report, Legal Aid—A Market-Based Approach to Reform, could hardly proclaim more plainly the moral bankruptcy of its aspirations.
The grand vision of the Attlee government in 1949 has been dissipated by its successors. How it can be restored is a challenge which I hope to address in a future article.
