Creative thinking

The gradual dwindling of legal aid poses an unprecedented conundrum for the justice system. Publicly funded access to justice has been taken for granted and a whole section of the legal services market has been built around it. Despite the important work carried out by law centres and citizens advice bureaux, the dramatic shrinking of the legal aid budget has created a void which no alternative model has filled. Clients are left unrepresented and firms are struggling to reinvent themselves.

The Master of the Rolls’ speech at LawWorks’ pro bono awards this week is one of those rare moments that reflected on the situation as a whole, in context. It’s still mostly blue sky thinking, but it pulled together a variety of strands that suggest how the void could be filled by combining a number of creative solutions.

Aside from backing the proposed online courts, Sir Terence Etherton’s main – and perhaps quite obvious – suggestion is to beef up the ranks of law clinic advisers. The new recruits, he offered, would be law graduates who had yet to secure a training contract or pupillage.

Inevitably, Sir Terence’s proposal has elicited comments that it would be like allowing NHS reception staff to perform neurosurgery. This is the wrong comparison. We’re happy for blood tests to be carried out by nurses. We should equally accept that, supervised and suitably trained legally qualified junior lawyers are perfectly able to provide advice on routine cases.

Solicitors Journal has had reservations about the provision of legal advice by fresh-faced juniors as a substitute to legal aid. The concern isn’t about their genuine willingness to help, or overall ability, but about whether they are able to provide specialist advice on such sensitive matters as housing and welfare law. But times are changing and so is the way legal needs are articulated.

The advice needed with most low-value legal enquiries primarily involves how to navigate the system, writing appropriate letters, and providing general practical support. The SRA itself has little concern at this stage that this would require additional regulation.

For lawyers, the immediate advantage would be that the training they receive counts towards professional qualification. Legal education providers could also roll this into their curriculum; this would neatly tie in with the SRA’s solicitors qualifying examination. However, we’re not convinced that, as the Master of the Rolls suggested, having allowed junior lawyers to qualify, this would create pressure on price so that legal advice then becomes more affordable. Yet it does touch on the key issue of price as a possible obstacle.

This is where the final pillar of the MR’s outline comes in: could before-the-event legal expenses insurance products fill the gap. Standalone BTE has long been regarded as an alternative to public funding but it has failed to take off in Britain the way it has in Germany. One reason, the MR said, was the lack of joined-up thinking with our costs regime. BTE has worked in Germany, he suggested, because fixed recoverable costs has allowed a ‘symbiotic relationship’ to develop with insurers, so that LEI products are a main litigation funding source. The trouble with standalone LEI policies is that even a nominal fee could still place it out of reach for many – although it could work for SMEs. But before we even get there, fixed recoverable costs raise a number of issues that ought to be resolved first.

More research is needed to assess whether this combined approach could deliver the expected results but we could do worse than giving it serious consideration. Coming from one of our most senior judges, it also conveys the sense that the judiciary will put their weight behind it. And that’s not a bad place to start.

Jean-Yves Gilg is editor-in-chief of Solicitors Journal

jean-yves.gilg@solicitorsjournal.co.uk | @jeanyvesgilg