History of the Provision of Free Legal Services until 1990
A. Origin of Free Legal Services
The origins of the pro bono publico tradition are obscure. Pound suggests it may have developed from bans on legal representatives accepting fees in ancient Rome and dark-age Europe.
He notes that, as late as the Middle Ages, payment was in the form of a gift.22 It may have been connected with the fact that both the medical and legal professions assumed responsibility for their areas of expertise from the clergy and, with them, charitable responsibility for the poor and the dispossessed.23 There are also suggestions, perhaps more plausible, that the impetus for pro bono services came from the courts rather than lawyers.There is evidence that, by 1300, justices on the Eyre circuits were assigning serjeants to act gratuitously. A Shropshire litigant in 1292 asked the court for the grant of a serjeant ‘so that his right is not lost’.24 This links pro bono publico to the right to
22 Pound (n 1) at 52, 55 and 68.
23 JA Brundage, ‘Legal Aid for the Poor and the Professionalisation of Law in the Middle Ages’ (1988) 9 Journal of Legal History 169.
24 P Brand, The Origins of the English Legal Profession (Oxford, Blackwell Publishers, 1992) at 104. sue in forma pauperis and court assignment of lawyers to act for litigants without a fee. A right to sue in forma pauperis was established by statute in 1495 but probably has earlier origins.[2303] A modern survival of this kind of practice is the dock brief in criminal trials, whereby the judge asks an advocate to appear for an unrepresented defendant.[2304]
The court’s motive for requiring lawyers to act pro bono publico was not necessarily charitable, since corralling lawyers to act for litigants in person helps matters progress more swiftly and efficiently.
Such practices would explain the fact that the literal translation of pro bono publico is ‘for the good of the state’, rather than ‘for the good of the public’ or community, as is often assumed today.[2305]There was no serious consideration of the accessibility of legal services as an issue of policy before the twentieth century. In the sixteenth and seventeenth centuries litigation among all classes was more widespread than at any time until the 1970s. It has been estimated that over 75 per cent of litigants at that time were ‘non-gentlemen’.[2306] Subsequently, judicial discouragement of free representation,[2307] and professional disdain for ‘low grade’ work, caused a decline of pro bono publico. In civil cases, the ancient laws against maintenance, supporting litigation in which one had no legitimate interest, and champerty, sharing damages, discouraged lawyers supporting impoverished litigants.
There was a change of attitude to free work for the poor in the later-Victorian era, when the professional middle class adopted the noblesse oblige traditions of the aristocracy. This was manifest as an ethic of disinterested service and continuing desire to gain distance from work seen as ‘money grubbing’.[2308] By the beginning of the twentieth century, a confused and contradictory case law had evolved to the point where lawyers were reasonably safe acting without expecting payment, provided the proceedings were not frivolous and vexatious.[2309] The volume of free work conducted by the legal profession at this time is not known, but was probably low.
B. The Poor Persons’ Procedure
Attempts to introduce limited legal aid in the early-twentieth century were undermined by the professional bodies’ concern to stamp out ‘a black market in legal aid’ conducted on a ‘commission’ basis.[2310] This was effectively a campaign against contingency-based charging and speculative work by solicitors.
By 1914 working class demands for the right to divorce led to the introduction of the Poor Persons’ Procedure, whereby solicitors and barristers provided their services free.[2311] The demand for assistance led to the establishment of a large office, but, because in some cases solicitors charged expenses, a committee was established to consider the procedure.In 1919, the Lawrence Committee decided to drive out the profiteers and to make the procedure more inaccessible,[2312] but demand continued to exceed the supply of services. The Law Society feared that anything less than a free service might result in officials being appointed to handle cases. A second Lawrence report reaffirmed the principle of free legal service. In fact, it suggested that there was a moral obligation, in return for the monopoly in the practice of law, to offer legal services to those who could not afford to pay, provided this did not place an unnecessary burden on practitioners.[2313] It recommended that the Law Society administer the Poor Persons’ Procedure, which it did from 1926.
Between the World Wars, a gap opened up between the professional elite in the Law Society and practitioners conducting the Poor Persons’ Procedure. Elite solicitors held a conception of public service that eschewed profit and recognised a social obligation to those less fortunate, while many regional solicitors demanded that the scheme be formalised and that payment be made for their work. Meanwhile, the Bar had a relaxed attitude towards the Poor Persons’ Procedure, bordering on indifference. The reason for the Bar’s attitude was possibly because the scheme had marketing potential for independent advocates building a clientele.
Instructions under the Poor Persons’ Scheme enabled barristers to advertise their services to solicitors and potential lay clients attending court. The Bar had objected to the presentation of divorce petitions in the County Courts because they wanted to preserve barristers’ exclusive advocacy rights under the Poor Persons’ Procedure.
It also objected to poor persons’ cases being concentrated on specific days, apparently because the barristers would not then have a wider audience.[2314]While the Bar favoured the Poor Persons’ Procedure continuing to be free, solicitors’ resistance, and demands for payment, particularly in Wales, laid the ground for the Rushcliffe Committee in 1945. This recommended the creation of a legal aid scheme.[2315] The Law Society was aware that managing legal aid would reduce its independence from the state. In the period after the Second World War in which the welfare state was built, the Law Society resisted the establishment of state-employed, salaried lawyers. It decided to accept responsibility for the Legal Aid Scheme out of fear that something worse might be imposed.[2316]
C. The Growth of the Advice Sector
The Legal Aid Scheme, as the Law Society feared, changed the legal profession’s relationship with, and attitude to, low paying work. Accepting responsibility for ‘poor persons’ law’, and doing it for profit, challenged the established ethos of doing what was seen as ‘honourable’ work. It also put the profession in potential conflict with the voluntary advice sector.
The Law Society was adamant that legal aid should not support advice bureaux, and the London centres only survived with support from the London County Council.[2317] This ambivalence was reflected in restrictions imposed on solicitors working as volunteers for advice centres. The rationale for this restriction was that doing free work amounted to advertising and the unfair attraction of business.[2318]
By the 1960s various gaps in legal aid provision were partly filled by advice agencies and Law Centres. This was particularly the case in employment and other tribunals that did not award lawyers’ costs. The ‘sympathetic lay advice’ became more specialised and expert.[2319] Then, as now, advice agencies tended to provide high level advice to low income groups on social security, housing, family and consumer law.
These areas all potentially competed with local solicitors.Solicitors’ anxiety about competition with the advice sector was allayed when they saw that it provided points of access and screened out weak or unprofitable cases.[2320] Solicitors often worked without payment in advice centres in evening sessions. This may have been partly because it was a good way of identifying cases suitable for them to handle with assistance from legal aid. By 1977 an agreement had been reached that, provided they did not encroach on areas such as personal injury and crime, the Law Society would grant waivers to solicitors working in Law Centres from certain practice rules.
A 1986 survey by the Advice Services Alliance recorded that, nation-wide, there were 896 Citizens’ Advice Bureaux service points, 354 generalist, independent advice services, 142 generalist advice agencies serving specific groups, for example, young people, 55 independent housing advice service points, 25 money advice service points and 14 immigration advice service points.[2321] Advice agencies had become important players in delivering local legal provision.[2322] In 1988, the Marre Report, referring to the spread of advice agencies, acknowledged that ‘[i]t is no longer possible to consider only the two branches of the legal profession when considering the supply of legal services’.[2323] The success of the advice sector had an apparent impact on the distribution of civil legal aid. Green form bills for areas of ‘social welfare’ law for 1975-76 were £27,000 or 11 per cent of the total. By 1994-95 this had risen to £468,000, or 30 per cent of the total.
D. The Decline of Legal Aid since the 1990s
From the late-1980s, government tried to reduce the legal aid budget by raising the eligibility threshold.[2324] A working party chaired by Lord Justice Otton in 1995 noted that, in March 1995 alone, there were 4258 litigants in person in actions in the High Court, an increase from one in ten to one in three since 1989/90.[2325] They absorbed disproportionate court time and were less successful than represented parties.
This was both a considerable burden on the courts and evidence of a decline in access to justice, which was becoming a political issue. The Law Society now represented a profession swollen in numbers supported by legal aid revenues. Espousing access to law as a right, it launched a campaign against legal aid cuts.The government, criticised from all sides, actively considered ways of addressing the problem. The Thatcher Government’s strategy had been to force reforms that might reduce the legal profession’s market control. The Labour Government opted for encouraging the advice sector to compete with lawyers, building upon what had become recognised as superior expertise in many areas of welfare law.
By the 1980s, advice agencies of various kinds offered sophisticated and, in areas such as welfare benefits, highly specialist legal advice. Their legal surgeries often ran free sessions staffed by local solicitors, barristers and students. The sector was thriving. It was no surprise when advice agencies became a cornerstone of the government’s plan for a Community Legal Service or were invited to bid for legal aid franchises. This policy was accompanied by a political campaign against lawyers, criticising them for encouraging litigation, for charging high fees and for not doing enough free work.
From the 1990s the scope of legal aid declined dramatically. This began with reduced eligibility and continued with removal of categories of case from legal aid altogether. The process may be complete with the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO 2012), which came into force from April 2013. This aims to cut £350 million per annum form the £2 billion legal aid budget. For these reasons the Bill was highly controversial. It was defeated 14 times in the House of Lords, and ultimately passed only after a tied vote.
The Act imposes further limits on case type, eligibility and the kind of intervention available. Legal aid is no longer automatically available for divorce and child custody disputes, personal injury and some clinical negligence cases, employment and education law, immigration cases where the person is not detained, some debt, housing and benefit issues.[2326] Family matters may be funded where abuse is involved. Some categories of case may be suitable for lawyer-funded fee agreements but, overall, the changes are expected to exacerbate significantly levels of unmet legal need. A spokesman for the Ministry of Justice said that ‘[l]egal aid will continue to be provided to those who most need it, such as where domestic violence is involved, where life or liberty is at stake or people risk losing their home’.[2327]
V.