This piece argues that those interested in access to justice have to move beyond seeing legal aid as the problem and look more fundamentally at the nature of law and legal institutions. We need to consider radical redesign of dispute resolution processes, not simply the tacking on of ADR and we should to consider radical simplification and codification of substantive law.
In the context of broader pressures on public spending, legal aid is an attractive victim for politicians making cuts. Lawyers are seen as inflating demand for, and cost of, their services and the typical legal aid client is a less sympathetic recipient of public funding than (say) an NHS patient or a needy school child. The cuts are beginning to bite with police station work and private family law cases being the first targets and other cuts are to be announced shortly if the Ministry of Justice is to make the “efficiency savings! expected of it. In the face of this, the increasingly desperate professions and legal advice sector make pleas for quality and access to justice which are likely to fall on deaf ears. Something, everybody agrees, needs to be done – but nobody can decide what that something might be.
This article seeks to shift the focus of that debate. It suggests that it may not be the legal aid system that is broken but the systems that it operates within which need attention. It suggests solutions which are radical and painful but offer some hope for the future of equal access to justice. Such change is only likely to bear significant fruit in the medium and long term but fail to plan ahead and we risk continuing a cycle of decline for legal aid and our justice system more broadly. The central premise is that we spend too much time focusing on issues of supply in thinking about the costs of legal aid and not enough focusing on issues of demand. If we spend all our energy concentrating on supply – on the cost and accessibility of legal services – we will continue to fail to address underlying systemic problems which beset our justice system.
What do I mean? Well it is a little noticed but important fact that legal aid expenditure is under control and has been for some time. Spending on both the criminal and non-criminal components of legal aid in England & Wales (E&W) had declined slightly in real terms since 2003/04 (Bowles and Perry 2009). Legal aid spending is no longer criticised on the basis that it is out of control. Whilst there is still work to be done on ensuring that supplier costs remain under control, especially at the upper end of the market, the LSC has been remarkably successful at controlling supplier costs with, of course, much pain inflicted on the providers.
The justification for legal aid costs has now shifted to comparing our system with others. In particular, it is claimed we spend more in absolute and per capita terms on legal aid than any other country in the World. Whilst one can cavil at the precision of such comparisons, there is a significant element of truth in this claim. We are more expensive but the important question to answer is: why is this so? and then, what can be done about it?
There are a raft of explanations identified in the Bowles and Perry study as to why our system is the most expensive. We have the best, most generous legal aid system. For all that it is a system that is showing increasing signs of strain, it is a system that is only matched by Scotland and to a lesser extent the Netherlands. But we also have a system that has to cope with much more demand for its services. Put simply we have more cases, particularly in crime. As a country we report more crime to the police and they interview more suspects, prosecute more accused, convict more defendants and imprison more convicts. This has a significant impact on the number of cases and the work that needs to be done on those cases. On the civil side, divorce rates are higher here impacting significantly on the number of family cases. Care cases drive such a significant part of the legal aid budget that our civil legal aid spend is substantially driven by the number of care cases and the legal resources that must be expended on them. We also have more generous eligibility and scope. For currently, probably unavoidable reasons (see below) there is less legal expenses insurance than in some other jurisdictions.
As well as having more cases, we spend more per case. This extra cost is often attributed to supplier induced demand: the idea that lawyers do more work than is strictly necessary. The evidence on this is somewhat contestable: lawyers respond to incentives – charging more than they otherwise could when incentives allow – but there is also evidence that this impacts positively on the quality of services. In any event, and crucially, supplier induced demand is only part of the story. There are a range of other factors which go some way to explaining why our system is more expensive. One, again identified by Bowles and Perry, is that we spend much less on courts than other countries. They suggest that if we take the spend on courts and legal aid together our system ceases to be the most expensive. There are other more subtle factors. There has been a small shift in the amount of crime prosecuted as serious crime which has had a dramatic impact on the Criminal Defence Service budget (Cape and Moorhead). There is the extent of work which is demanded in child care cases. And there is greater emphasis on quality in our system: the LSC has pioneered quality assurance in legal aid and this has very likely had an impact on costs per cases. There are also other structural factors, the GDP double whammy, in particular. This suggests that our legal aid budget is larger because we are (relatively speaking) a wealthy country and so feel we should spend more on our public services, but also – because the salary expectations of the general population generally (or the legal profession in particular) are higher than in other countries such services cost more to fund. Another structural issue, on the supply side, is that we have relatively low levels of salaried provision.
Some common solutions
The last point hints at one of the common solutions offered for the legal aid crisis. It is suggested that more salaried services: public defenders and their civil equivalents should reduce costs. However, Public defenders have been tried in England and Wales. They were found to be of good quality but more expensive (Bridges et al, 2007). The NFP sector operated contracts on a salary style model in civil legal help: they provided good quality but were expensive. On that evidence salaried services do not look like an ideal vehicle for reducing costs in the short term, although that may have been because salaried services were targeted at the low cost work of high street practices where, it might be surmised, profit margins were narrowest. Salaried services which looked towards the ‘higher end’ work might stand more chance of making costs savings, although one would also expect vigorous critique of any such proposals from the Bar and others.
Another suggestion often made is more ADR or more compulsory ADR. I do not subscribe to the view that compulsory ADR necessarily involves a breach of anyone’s human rights, but I do raise a degree of caution about the cost-benefits of ADR particularly on low or moderate cost cases. The research evidence does not tend to show clear costs savings for ADR. Every practitioner knows why this is: most cases settle anyway. For ADR to be cost effective it must reduce costs significantly on the cases that would have settled later or gone to trial over but for ADR and above the extra costs added to the cases that would have settled anyway. Too often the benefits of ADR are compared with the costs of trial: it is generally a false comparison.
A third suggestion, hinted at above, is greater reliance on Legal Expenses Insurance. As de facto, privately funded legal aid schemes, legal expenses insurance raises some interesting conflicts between profit making and public interest, but let us put those to one side. Most commentary on legal expenses insurance agrees that until our legal system is cheaper and more predictable, legal expenses insurance is unlikely to work.
With the standard solutions to our problems looking distinctly unpromising, what alternatives can be offered? It is here that I return to my original theme: the idea that we need to think more broadly about where the pressures in the system come from and what forces drive up legal costs.
The first idea, and not a novel one, is that we need to look much more closely at polluter pays principles in legal aid expenditure. The financial services sector is, as we are often and painfully reminded, central to the health of our economy but it also manages to externalise at least some of its costs. It is dependent on the court system to enforce obligations and security and, as any debt advisor can tell you, debt advice is an important safeguard against sharp practice, including the harassment of debtors who can’t pay rather than won’t pay. More significantly perhaps, is the expenditure on prosecuting and defending fraud. Some attribution of those expenses to root causes may ameliorate some of the pressures facing the legal aid budget
Another issue of concern is the extent to which Local and National Government are the generators of legal problems. Evidence that it is government, in all its guises, that generates legal problems and makes them more expensive to resolve is beginning to mount. Such problems appear often to simply derive from poor quality administration and could be tackled at a strategic level with sufficient foresight and resources. Here legal aid might be seen as part of the solution rather than part of the problem with legal aid cases and the costs expended on those cases being important drivers towards improving the administration of justice throughout government. There is interesting work in Nottingham suggesting that such a focus can lead to the redesign of public services in a way that reduces costs for the ‘defendant’ government agency and reduces the costs to the ‘claimant’ legal aid budget (through reduced demand and/or reduced unit costs). Greater thought on how legal aid could be used to generate systems thinking and drive such change is one of the few opportunities within the current system for generating cost reduction and improvement in client welfare.
I do not believe that such reforms will be enough in themselves. A commitment to equal access to justice (or something close to equal) requires that we consider radically the design of our main justice frameworks.
At its simplest, I would reduce my first idea to eight words: not alternative dispute resolution but changed dispute resolution. We need to
reconsider, on the basis of clear principles but also practical judgments as to what is achievable, how we would redesign the justice system to meet the challenges posed. Such a process of radical change is not easily executed, but the way the legal system is currently operating we can expect it either to fall into disuse or to be the province of the hyper-wealthy, biggish business and litigants in person only. We are, in all likelihood, more than part way to this outcome in any event. How might we reverse this trend or make it less invidious?
One approach would be to engage in a radical simplification of process. This is an idea so often stated and so little realised it suffices to emphasise that this needs looking at in a genuinely radical and open-minded fashion. To be sure, there would be trade-offs between quality of justice and simplicity but such trade-offs may be worth it if it rescues courts from increased irrelevance. Complexity does not secure the accuracy of justice it secures the denial of justice for all but the few. We should also think seriously about removing certain work from courts and challenging the assumption that a bilateral adversarial system is best for all the issues before it. Robust, well-funded Ombudsman-type services or inquisitorial adjudication may have more to offer for lower cost in certain areas.
A second idea worthy of significant attention is the idea that if you cannot remove disadvantage, perhaps consideration should be given to removing advantage. This is done in some foreign tribunals, which suggest lawyers (or other representatives) can be banned where they lead to inappropriate inequality of arms.
The third idea is the most challenging to any lawyer or judge weaned on the beauties of the common law or any politician who sees in each freshly enacted Statute a symbol of their own capacity to deliver change. That idea is to challenge the benefit, effectiveness, even justice, of having such a complex system of substantive law. We ought to, I believe, give serious consideration to radical simplification of our laws. Many of the features of common and statute law that make it such an engaging puzzle for many lawyers make it a massive barrier to access to justice. It is tempting to suggest that common law’s complexity is part of its strength. It may be complex, so the argument goes, but in the hands of an expert lawyer it is predictable and adaptable to the clients needs and to changing circumstances. I do not wish to dismiss that argument out of hand but it is worth considering the opposite possibility. A intriguing piece of Australian research points in a very different direction (Wright and Ellinghaus 2005). Using simulations, they compared the application of common law and a commercial code to see which was more predictable, more accurate (in ensuring those applying the law reached the correct decisions according to the Court of Appeal), more efficient and fair (as perceived by those applying the law and a panel of non-lawyers). As one would expect, a simpler codified approach was cheaper and quicker, but it was also fairer, more predictable and more accurate. The study was small and I would expect any fair minded reader to wonder at the extent to which it would apply in other contexts but I would also expect them to wonder about the benefits that might come from having dramatically simpler law both in terms of making it more accessible, less expensive and even – potentially – fairer.
This article first appeared in the New Law Journal in March 2010.
Bowles and Perry (2009) International comparisons of publicly funded legal services and justice systems, http://www.justice.gov.uk/about/docs/comparison-public-fund-legal-services-justice-systems.pdf
Bridges, Cape, Moorhead and Sherr (2007) Evaluation of the Public Defender Service in England and Wales , The Stationery Office, London
Cape and Moorhead (2005) Demand Induced Supply? Identifying Cost Drivers in Criminal Defence Work http://www.lsrc.org.uk/publications/camocrim.pdf
M. Ellinghaus and E. Wright, ‘The common law of contracts: Are broad principles better than detailed rules? An empirical investigation’ (2005) 11 Texas Wesleyan Law Review, 399-420. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=771204