Legal Aid is in Crisis: We Must Act

Thank you all for joining us. My name is Oliver Sullivan, and I am the editor for Lawyer Monthly. I hardly think Robert needs an introduction, but I am sure he could give us a brilliant one anyway.

I am not so sure about that, but I just wanted to say, it is such a gift for us to be alongside one another here. I failed to realise until I came into this conference space just how much of a thirst there would be for connections, and especially as a legal community. Although a lot of people are moving to at-home work, one of the things you cannot replicate, especially in challenging cases, is to have the range of both professional and lived experiences alongside one another in chambers.

As a short introduction, I am a barrister. I practice at 2 Hare Court, which is in many respects the most established public criminal chambers, although most of our work is regulatory and international law, which was – by the time I accidentally stopped being a barrister – the chief arena of my practice. And then in a rather odd meeting, having prosecuted cases internationally and advised governments, I found myself coming back to Croydon to defend in a case. That is to say nothing about Croydon or how I ended up in television or how depressed I was about the law, but I think we can all agree the architecture could be improved.

I ended up writing scripts. It was a spare-time hobby. I went to sell one to a woman at ITV who looked at it, and the best thing to say is that she gave it her aggressively undivided indifference. I think she thought it was the worst thing she had ever read. As I am a defence lawyer in this country, and completely undeterred by a difficult response, I went back to Croydon, sent her an email, thought nothing of it, took another brief and came back to the idea of a TV court. It normally takes years and years of various developments to produce something like this, and of course, you can imagine that various focus groups were involved. This one was just put onto television in three months.

I practice at 2 Hare Court, which is in many respects the most established public criminal chambers

So we then move on. I was prosecuting a case in Jersey and I arrived in court with a TV crew with my name on it. We have now done 2,000 cases involving civil disputes, and from there, gifted privilege after privilege, I have had a range of extraordinary opportunities including how to dance on Strictly Come Dancing and, just this morning, presenting Good Morning Britain for the first time. But perhaps the richest gift of all has been to give a platform to the causes I care about. This includes documentaries about human rights issues, such as one with the BBC that will hopefully come next year about the conflict between Israel and Palestine, and having a column both in the Sun and the Evening Standard where I answer questions – and have done for six years – for people who have the least access to legal aid, with no access to power. That, I think, has been the richest privilege of all.

That brings us neatly onto the topic of our talk, which is the legal aid crisis in the UK. It would be a bit remiss to begin this talk without first defining exactly what legal aid is and who it is meant for.

You know, there is a legal aid crisis. We as a legal community are – and when you think about it, it is quite ironic – shockingly bad advocates for ourselves as a legal community. We are really bad at making the case for lawyers. I want to set that up as a sort of overarching headline.

So as people will be aware, legal aid was originally instigated because it was understood that democracy is meaningless unless everyone has access to justice. In criminal aid, that meant that it was a complete given that you would not be given just any lawyer, but equal and opposite firepower to the capacity the state had to bring a prosecution against you. I think this is something worth reflecting on when people are perhaps a little bit sceptical about the implications of the European Convention – the Human Rights Act, as it became. What that meant was that you were guaranteed equality of arms. That meant, of course, that anybody confronted by a criminal allegation would be entitled to a defence, means-tested or not.

We as a legal community are … shockingly bad advocates for ourselves as a legal community.

That became increasingly difficult to defend when people named had money. But the reality of the situation was that it was understood that you could not have a fair trial without that guarantee – that our legal landscape demands, requires and expects that in order to ensure any kind of fairness, it cannot be dependent on the capacity for an individual to pay.

So, when you are talking about losing somebody’s liberty, that is criminal legal aid. And again, it seems to me that that is a very straightforward case to make, but we as a legal community, for a variety of reasons which no doubt we will come onto, make a case badly.

In civil legal aid, again, the pot used to be large. In other words, there was a broad landscape of civil legal aid available to a broad range of people. Now, it was not the case that anybody could just go and get civil legal aid, either for family disputes or for housing matters. This was not some sort of bonanza. it was never means-tested in the way it is now. You could go into it and find out in rich detail about how this has eroded over time, but the reality is that we went from a position where the powerless, or those who had the least access to network – which is the critical currency in getting a problem resolved – would have access to a lawyer, usually at first instance with one letter that could solve that particular problem, to the reverse. To use an example, in family law you may now have a toxic breakup where there are a range of issues – violence, for example – towards one of the spouses, usually the female spouse: no legal aid.

I have become an ambassador for Shelter, and I can tell you personally the number of cases where access to a lawyer at first instance would have resolved somebody’s problem, when they are living not just in bad housing but in housing which is in breach of every conceivable regulation imaginable. Special educational needs is another area of absolute critical importance that is now beyond the reaches not of some people, but of most people, and that is completely scandalous.

I have become an ambassador for Shelter, and I can tell you personally the number of cases where access to a lawyer at first instance would have resolved somebody’s problem

What I often wonder is, if you have a problem, who in your firm could you get in touch with that would be able to assist you, that could act as an advocate on your behalf, that could know the law? Could you, for example, come up with the money to pay that person? For most people, and it bears infinite repetition, that is simply not the case. We, then, as a legal community, need to ask ourselves a very challenging question: what does it say about access to justice? What does it say about those individuals?

Yes, there are a number of corporations and various law firms who are responding, but I am afraid to say it is nothing but scratching the surface of a very, very deep problem. Again, I hope you will forgive me for repeating it; we as lawyers need to make the case for why it really, really matters. Not just the straightforward principle case, but the economic case too: the amount of court time that is wasted. Judges will tell you this; even good research from the Department of Justice will tell you this now, as we do now have a slightly more on-side chancellor in the form of Dominic Raab, or so it seems to me. The reality is that where people do not have access to law, it is uneconomic, it is unfair, and it is an affront to our basic principles of having access to justice.

Looking at statistics, it is rather damning. The UK is now ranked 79th in the world in terms of accessibility and affordability of civil justice as of 2020. Specifically, around six million adults in the UK face a situation in which they have a need to address a particular legal dispute and are unable to do so.

That is a really interesting statistic. I used to prosecute cases of financial corruption – we were obsessed by those statistics of “how corrupt you are”, which really depended on the external criteria that they applied over the government. Imagine if we sat here as a community and said that, when it came to being the cleanest government, we ranked 79th in the world. That would be a matter of national scandal.

To go back to what you touched on earlier, you said that lawyers make poor advocates for legal aid, or they do not they have the necessary skills or drive to push for it harder. How do you feel things could be improved in this area?

That is a good question. I do not think they are poor advocates for legal aid, and forgive me if I put it that way. I think lawyers are poor advocates for being lawyers. And I understand why. After a period of time working as a professional – it certainly happened to me after 15 years or so – if you are a criminal lawyer, you are used to the usual question: how do you defend people when you know they are guilty? There is an obvious and easy answer to that question: everybody is entitled to a fair hearing, and so on and so forth. But I think as a profession, whatever aspect of the law you are in, be it as a solicitor, a legal executive or a barrister, for too long we have been in retreat. We have failed to remember how important what we do is.

I understand that that sort of rot has set in for some time. There is that joke, “What do you call a thousand lawyers at the bottom of the sea? A good start.” But I do not think we have ever lost the social currency as lawyers, regardless of what part of our community you occupy. What I think we have done is allowed ourselves to become part of a conversation which has forgotten our pride in what we do. In other words, when you say to somebody or you meet somebody and they say what do you do, and you say, “I am a lawyer”, you can feel very often that kind of sense of apology. It happens across the board. And that might be because it has been pretty exhausting, or the work may be repetitious, or whatever it is. But if you are a personal injury lawyer, for instance, there should not be any apology there. What you do is critical.

I sat down with a group of personal injury lawyers from a large firm in Manchester, Fletchers. Listening to the stories of what they do, as they take somebody who has been critically injured from the beginning of their journey over three or four years, they become critical members of that person’s family. They do not just problem-solve; they provide that long-term legal resolution that, but for them, that person would not have. And that is true in so many instances.

No, I do not think it is a panacea, but I do think as a legal community it is always worth remembering – in case you have forgotten – that what each and every one of you do, what we do as a legal community, really, really does matter. Whatever you do and wherever you do it, you provide individuals and people the right that they are fundamentally entitled to, which is the right to access to justice. Without you they would not have it. And if you leave with nothing else, I ask you never to shrug when somebody asks, “What do you do”. You should be proud to be a lawyer.

Of course, you have seen a lot of this first-hand through your pro bono work. You have seen the need for greater legal aid in this country.

Yes, but it was not just working alongside that law firm. When I first started answering questions in the Sun, I received a lot of criticism. People were quite sceptical, and they have their own reasons for that, but I have always been quite proud of it. because the mailbag has by and large been from people who have not had access to a lawyer, and they are asking first-instance questions. What has been interesting over that half decade or more has been to see how that mailbag has grown and also the types of questions that we are getting. We started off with parking and so on and so forth. What has happened now is that, each week as the questions are triaged for me, we are dealing with questions about concerns over custody. We are dealing especially with questions like “I think my child has learning challenges and they are entitled to some sort of state benefit. I do not know what that is and the school are not helping. Can you?”

This is one of the largest areas of legal aid, special educational needs.

Exactly. Same, of course, with housing. It is interesting with the special educational needs provision, because that really is something that we can reach for as lawyers to have a good quality example of outcomes depending and consequent on your privilege. It is just the tragic fact that if you are somebody who has access to that network and can pay for a lawyer, you can consequently muscle the relevant counsel, the relevant education or department – whoever it is you are talking to, because it is an incredibly complex landscape – if you can navigate that with that sort of legal assistance, and you can do that in time, the outcome for your child is wholly different from somebody who lacks that privilege. We are talking about a child’s life. That should never, ever, be dependent on your capacity to pay for that access. Often it can be resolved with really limited money and effort.

If you leave with nothing else, I ask you never to shrug when somebody asks, “What do you do”. You should be proud to be a lawyer.

I would like to go back to what you were saying about why lawyers ought to be proud for making such a difference in individuals’ lives. Looking at the wider issue, then, of legal aid in this country and how it has now become so restricted in access as to create entire legal aid deserts – areas of the country where there is no legal aid provider – what would you suggest we do to address this?

Well, we need to be innovative. One of the privileges of doing Judge Rinder, other than the technical law, has been to learn and to hear the lived experiences of people outside of London, and from a range of complex backgrounds. Precisely as you say, there are whole areas of our country where, for millions of people within a broad range of communities, of every complexion, there are legal aid deserts. And what those communities have in common is exactly as you suggest: that lack of access to power. We need to be innovative in this way.

Firstly. it is not just about funding. It seems to me that some firms are doing it – Slaughter and May, and various others as well. They are growing their pro bono departments. But they only get referrals, and they have a number of criteria before they take certain cases. It certainly seems to me that, as part of one of the seats that you do as a trainee solicitor, there should be a paid requirement for you to do pro bono work, precisely because a lot of the advice that you can give is about telling somebody they do not have a legal case. That in and of itself is a critical starting point, and it is just the opportunity to help somebody that lacks the capacity to touch the face of power. That is the first thing.

One of the privileges of doing Judge Rinder, other than the technical law, has been to learn and to hear the lived experiences of people outside of London, and from a range of complex backgrounds.

Secondly, it seems to me that, again, it should be a requirement to train at the bar, but it needs to be funded alongside those firms. There should be a part of your capacity to continue to work and to continue to be regulated, alongside which there should be some element of doing pro bono, and it should be proportionate to the outcome that you have as a firm as part of our giving back as a community. Now, I want to be clear: lots of firms are doing that work. But where there are deserts, we need to be pressuring and finding funding wherever we can to go to those places and make sure they have that advice. The good news is that when you speak to MPs of both sides – of course they are politicians, so they are not going to be honest with you – but when you make this case, they will agree. All of them.

In fact, it was recently found by the bi-partisan Westminster Commission on Legal Aid that there is a greater need to address legal aid deserts by training and recruiting more pro bono solicitors.

Yes. And it makes people better lawyers as well. I think that really matters. My wonderful mentoree, who I am so proud of, just got pupillage. One of the things that she did is that she spent a good portion of her time leading up to her pupillage applications doing as much pro bono work as possible. Nowadays, especially with young trainees, they often get ring-fenced into high-profile work or high-value work; they specialise extremely early on. But when I first started doing legal aid at the turn of the century, what that meant was that I would be doing five cases in the morning and two trials in the afternoon. So those threads of humanity that weave themselves into the tapestry of your experience, the range of complex problems that you meet, the interface with client groups that have their own nuanced issues from across a range of communities, make you a much better problem solver and lawyer. Above all else they compel you to find language that can turn complex problems into readily available answers that an ordinary person can understand. If you as a lawyer are not able to communicate the law so that everybody can understand, then you are a bad lawyer.

That is another of the key issues of the legal aid crisis: how do we attract more young lawyers to pro bono work, away from potentially more high-profile cases? How do we sell pro bono work to them?

 

Well, by making it easier and better for them to do. I do not criticise the young people – I have had to rethink the advice I give to some, and I hate it. If you look at my chambers, there might be 400 applicants and three places, and the amount of debt that our students are in… it is completely indefensible. The way we attract young lawyers to do work is by saying “We, as a corporate community, are going to support you in that work”. We make it a requirement, as I say, of getting pupillage in the first place or getting a training contract. We make the training colleges work alongside us as they sometimes do, not just encouraging people to volunteer. It seems to me that they could be and should be (and in some places they already are) volunteering within those colleges as well.

If you as a lawyer are not able to communicate the law so that everybody can understand, then you are a bad lawyer.

But young people are not necessarily the answer. They need great role models. They need people in firms that have got well-funded pro bono units. Where the mission of leaving university should be to say: “Look, I am prepared to forego a reasonable amount of salary, but I still need to have the capacity to live in London.” Anybody who is a legal aid lawyer does not make a lot of money. And again, the reason why I say we are bad advocates is because for too long we have allowed the media to rob us of what is the fundamental truth: yes, some barristers and corporate and commercial lawyers get a lot of money. But those who practice legal aid and do free work do not make a lot of money. They do it for the passion, they do it for the love, they do it for the calling, because they believe that there is no value in the law unless it is available for everybody. And so it seems to me that we attract young people by reminding them that they can still have a mission to do this work and still live a reasonable lifestyle, and we need a range of solutions from our government and our corporate community in order to enable and assist that.