With pressure mounting on public spending, legal aid is a likely victim of significant cuts. Politicians blame lawyers for inflating demand and increasingly desperate lawyers make pleas for quality and access to justice that are likely to fall on deaf ears. Something, everybody agrees, needs to be done—but nobody can decide what that something might be.
With pressure mounting on public spending, legal aid is a likely victim of significant cuts. Politicians blame lawyers for inflating demand and increasingly desperate lawyers make pleas for quality and access to justice that 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, suggesting it may not be the legal aid system that is broken but the systems that it operates within which need attention. While radical and painful change may be necessary, it offers some hope for the future of equal access to justice. The central premise is that if we spend too much time concentrating on supply—on the cost and accessibility of legal services—we will continue to fail to address underlying systemic problems which structure demand for law. Fail to tackle these and we risk continuing a cycle of decline for legal aid and our justice system more broadly.
Some background. Legal aid spending is no longer criticised on the basis that it is out of control. Indeed, it has declined slightly in real terms since 2003. While there is still work to be done on ensuring that supplier costs remain under control, the LSC has been remarkably successful at controlling supplier costs with, of course, much pain inflicted on the providers. With the LSC’s demise likely after the Magee Review, responsibility for continuing this work will lie more clearly at the Ministry of Justice’s door. Attention has now shifted to our spending more on legal aid than any other country in the world. We are more expensive in absolute and per capita terms but the important questions are: why and what can be done about it?
Much of the why questions are answered by Bowles and Perry’s 2009 study, International comparisons of publicly funded legal services and justice systems. We probably have the best, most generous legal aid system 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. We report more crime, interview more suspects, prosecute more accused, convict more defendants and imprison more of the convicted. This significantly increases the number of cases and the work needed on those cases. On the civil side, higher divorce rates impact significantly on demand for lawyers and care cases drive a large part of the civil legal aid budget.
As well as having more cases, we spend more per case. This extra cost is often attributed to supplier induced demand: that is lawyers doing more work than is strictly necessary. The evidence on this is somewhat contestable but in any event 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. We spend much less on courts than other countries. When Bowles and Perry looked at spending on courts and legal aid together our system ceased to be the most expensive. Reduce spending on legal aid and we will likely have to increase spending on courts.
There are other more subtle factors. Small shifts in the amount of crime prosecuted as serious crime had a dramatic impact on the criminal defence service budget (Cape and Moorhead (2005) Demand Induced Supply? Identifying Cost Drivers in Criminal Defence Work). (See also 155 NLJ 7193, p 1373.) There is greater emphasis on quality assurance in our system which increases cost. There are other structural factors. A GDP double whammy means that our legal aid budget is larger because as a relatively wealthy country, we tend to spend more on public services, but also—because the salary expectations are higher when GDP is higher—services cost more to fund.
Some common solutions
One suggestion is that more salaried services: public defenders and their civil equivalents should reduce costs. Public defenders have been tried in England and Wales but were more expensive (Bridges et al (2007) Evaluation of the Public Defender Service in England and Wales). NFP civil contracts operated on a salaried model: they provided good quality but were expensive. Salaried services do not look like an ideal vehicle for reducing costs in the short term, although these experiments were targeted at the low cost work where efficiency gains were least likely. 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. ADR has its place, but I am sceptical of the cost-benefits particularly on low or moderate cost cases. The research does not show clear costs savings for ADR. Every practitioner knows why this is: most cases settle anyway. To be cost effective, ADR must reduce costs significantly on the cases that would have settled later or gone to trial over and above the extra costs ADR adds 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 is greater reliance on legal expenses insurance. Putting to one side the interesting conflicts between profit making and public interest that this raises, 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 looking distinctly unpromising, what alternatives can be offered? Here I return to my original theme: 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 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 a substantial slice of legal problems and makes them more expensive to resolve is beginning to mount. Such problems often 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 being seen as important signals of the need to improve underlying administrative or legal problems. There is interesting work in Nottingham suggesting that this can lead to the redesign of public services, reducing costs for the “defendant” government agency and reducing costs to the “claimant” legal aid budget (through reduced demand and/or reduced unit costs). Greater thought on using legal aid 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 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. A process of radical change is needed or our legal system will 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?
l 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 are necessary to rescue 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 challenge the assumption that a bilateral adversarial system is best for all issues currently before courts. This means thinking seriously about removing certain work from courts. Robust, well-funded Ombudsman-type services or inquisitorial adjudication may have more to offer for lower cost in certain areas.
l 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.
l The third idea is challenging to any lawyer or judge weaned on the beauties of the common law or any politician who takes pride in a freshly enacted statute. That idea challenges the benefit, effectiveness, even justice, of having such a complex system of substantive law. We ought to give serious consideration to a radical simplification of our laws. Substantive complexity is 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 it is predictable and adaptable to the client’s needs and to changing circumstances.
I do not wish to dismiss that argument out of hand but it is worth considering the opposite possibility. Australian research points in a very different direction (Wright and Ellinghaus 2005, The common law of contracts: Are broad principles better than detailed rules? An empirical investigation). 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.
Professor Richard Moorhead, deputy head Cardiff Law School.
E-mail: MoorheadR@cardiff.ac.uk
