The Inquiry
1. Access to justice is a basic right. The
UK National Action Plan on Social Exclusion[1]
recognises this by giving access to justice similar priority to
healthcare and education. The legal aid system is a vital element
of the strategy to prevent members of the public from suffering
social exclusion. Without a strong civil legal aid system to ensure
that members of the public can obtain legal services when they
need them there would be widespread denial of access to justice.
2. Legal aid spending occupies almost two thirds
of the Department for Constitutional Affairs' budget. This fact
alone justifies a close inquiry by us on the way in which the
system operates. There was a further reason for the inquiry: many
informed commentators have raised serious concerns about the workings
of the civil legal aid system since the reforms in 1999. There
was a good deal of evidence, much of it anecdotal, about the shortcomings
of the system. We were concerned that a loss of practitioners
who are willing to do legal aid work might lead to a serious decline
in the ability of the system to provide access to justice, especially
for those who are most vulnerable and whose need for competent
legal advice is often greatest. The Citizens' Advice Bureau Report
"Geography of advice", published in February 2004, while
praising recent reforms, identified serious problems which had
to be addressed for the Community Legal Service (CLS) to be sustainable.
That report concluded:
"Advice deserts are opening up, and the infrastructure
of the CLS is underdeveloped and unsustainable. Fragmentation
and desertification are posing serious challenges to the long-term
viability of the CLS, and providers are being discouraged and
demoralised by the deadweight of unnecessary bureaucracy".[2]
3. We realised that there was a pressing need to
inquire into these issues. We decided to focus on: the extent
to which advice deserts existed; whether solicitors and barristers
were leaving legal aid work; and the shortcomings in the organisation
of the system—in particular the arrangements for auditing
accounts and whether the "matter starts" system[3]
was over restrictive. We were concerned about the impact of these
issues on recruitment into the profession to do legal aid work.
4. The particular questions which we posed at the
start of the inquiry when calling for written evidence were:
— What
evidence is there of the emergence of 'advice deserts'?
— How can the Department for Constitutional
Affairs and the Legal Services Commission provide incentives for
legal aid practitioners to continue legally aided work?
— Is the perception that legal practitioners
are moving out of legally aided work correct?
— Can the requirement for legal aid be
reduced by the resolution of some legal issues on a more informal
basis, through the Citizens' Advice Bureaux, long distance services
or otherwise?
— Would a salaried service or the provision
of law centres be viable solutions to lack of provision, either
in areas without sufficient practitioners or elsewhere?
— What would be the comparative funding
costs of a salaried service?
5. We took evidence from the witnesses listed on
page 48. In addition to the formal evidence, we relied on important
research commissioned by the Government, "Causes of Action:
Civil law and Social Justice", which provided a wide range
of up-to-date evidence about the potential obstacles in the way
of members of the public in their search for access to justice.[4]
During the course of our inquiry, the Government published significant
pieces of research on the financial impact on the legal profession
of the current system of providing civil legal aid, one by Matrix
and two by Frontier Economics.[5]
The LSC has also published work on quality and access under contracting.[6]
6. We are grateful to our two specialist advisers
during the inquiry: Professor Hazel Genn, CBE, University College,
London, and Mr Richard Moorhead, of Cardiff University.
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