Brave changes, Lord Irvine, but will they do any good?

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The Independent Culture
THE GOVERNMENT'S White Paper on modernising justice contains only one surprise: its determination, thought to have been largely abandoned, to remove most personal injury cases from the scope of legal aid. This was the proposal which got Lord Irvine's original proposals for improving access to justice off to such a bad start.

As well as facing predictable opposition from the Law Society and the Bar to any cost or fee cutting, he alienated all the main consumer and advice organisations. Their hostile reaction was provoked by the justified fear that the threat to remove legal aid from all civil damages claims, replacing it with ill-considered "no-win, no-fee" agreements, would exclude many legitimate claims by the poorest in the community.

Giving lawyers a direct financial interest in the result of a case was to ask a notoriously cautious profession to join the casino industry. Betting only on certainties or near-certainties would save very little public money, because the cost of successful cases is met by the corporations and insurance companies who pay the damages.

While "no-win, no-fee" has its place, it has little to do with serious reform of our justice system. It should be available for those who want to make such arrangements, but it is no substitute for legal aid. There will be power to bring back classes of cases under legal aid and that should happen as soon as possible.

In recent months, Lord Irvine has shifted the balance of his approach, relying heavily on changes which were already in train before he took office. Rejecting the idea proposed by the Society of Labour Lawyers, since 1968, that a network of neighbourhood law offices, staffed by salaried lawyers and advice workers, should replace the case-by-case funding of private practitioners under the Legal Aid Scheme, he is promoting a compromise position.

Solicitors' firms with significant numbers of legal aid cases have been able, for the last three years, to apply for franchises from the Legal Aid Board. This gives them some financial benefits in return for accepting detailed standards of service and quality control. Many firms have signed up because they have seen a future in which only franchised firms will be able to do legal aid at all.

That future is set out in the White Paper. Firms (and non-lawyer advice agencies) will sell their services under contract to the Legal Aid Board (to be re-named the Legal Services Commission). In contrast to the current franchising system, which does not exclude all qualified solicitors from taking legal aid cases, franchised firms will apparently be the only ones able to do so.

There are big advantages in this scheme. Legal aid lawyers will have to be skilled and efficient. They will have to grow in order to absorb the legal aid work done by the many firms which handle only a tiny number of cases and over whose standards supervision is virtually impossible. The quality of service offered to legal aid clients should become more uniform and of higher quality because there will be economies of scale.

But the Government must say how it is going to avoid the potential disadvantages. Fixed fees and prices will encourage corner-cutting and avoidance of difficult cases and problems. Firms which pride themselves on thorough investigation and preparation of cases will have difficulty in maintaining those standards.

The availability of several thousand firms throughout the country which are able to take on legal aid cases is a huge benefit to the consumer, both in access and choice. If the number of legal aid firms is substantially reduced, access will be diminished when the aim is to extend it. Consumers will only be able to exercise choice in practice if there are enough contracted firms within their reach.

One of the positive aims of the White Paper is to extend the range of resources available for the consumer. These will include the contribution of technology to the spread of knowledge and communication between consumer and service provider. To some degree, a reduction in the number of legal aid firms can be balanced by the greater use of filtering of cases through advice agencies, which can separate those problems which need professional legal skills from those which can be dealt with by other agencies or within the advice agency itself.

The Legal Services Commission will embrace a Community Legal Service and a Criminal Defence Commission. The latter is a new idea and it may be intended to pave the way for a salaried public defender scheme. The White Paper contemplates that criminal legal aid work will be contracted to firms in the same way as much civil work; but that could change, especially as public defender schemes seem to be working in Scotland.

The Community Legal Service was part of the Lord Chancellor's original plan, outlined soon after Labour took office, but it was overshadowed by the furore over the cuts in legal aid and by the "no-win, no-fee" scheme. The plan would have had a better reception if positive proposals for the Community Legal Service had been in the forefront of his proposals, but these were so imprecise that it is not surprising that they took second place.

What we now know from the White Paper is that the Community Legal Service is not an entity; it is a label or kitemark to be attached to a range of services and resources which there is little hope, or perhaps need, of unifying. What is important is that the disparate resources which add up to the public provision of access to legal services should fit together, and between them ensure that every individual with a legal problem can find out easily where to go for help - and then get the help that is needed, regardless of means. It will be a long time before we will know whether modernising justice is doing justice.

The writer is a solicitor and a vice-president of the Society of Labour Lawyers

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