Plugging the gap

So it's 'Happy birthday' then. Sixty years ago this week, on 30 July 1949, the Legal Advice and Assistance Act was granted Royal Assent with the promise that anyone who needed legal advice would be able to have access to it.

Whether there is much to celebrate among the beleaguered troops that comprise the publicly-funded sector of the profession is pretty questionable. 'Legal aid should be available in those types of case in which lawyers normally represented private individual clients,' wrote Lord Rushcliffe in his 1945 report. But at no point has the reality of the publicly-funded legal sector ever matched those noble aspirations laid down in the Rushcliffe report.

In legal aid's first 1949 incarnation, 'access to justice' was seen as a fundamental right along the lines of the right to a decent education or free healthcare. Rushcliffe, a former barrister, set the bar high: 'Legal aid should not be limited to those people 'normally classed as poor' but should include those of 'small or moderate means'.'

The legal aid vacuum

Where are we today? The Legal Action Group defines 'the justice' gap as the legal aid vacuum occupied by an increasing section of society that is neither sufficiently impoverished to qualify for legal aid nor can they afford a lawyer. In legal aid's first year, eight out of ten people were eligible for publicly-funded legal advice. New Labour came into power in 1997 with a promise: a 'comprehensive' new Community Legal Service. At that point, just over half (52 per cent) could access publicly-funded legal help. Twelve years on, less than one in three clients are now eligible for publicly-funded legal advice (29 per cent). And so, using eligibility as a measure, New Labour has failed to deliver on their pledge. If legal aid is a pillar of the welfare state, if it hasn't quite disappeared into a vapour of dust then it's crumbling pretty fast '“ certainly, the civil scheme.

However, the government spends £2bn of taxpayers' money a year on publicly-funded legal advice. That sum represents, as one legal aid minister after another has pointed out, a greater per head spend on legal aid than anywhere else in the world. Yes, that's a significant investment, but it wouldn't keep the NHS going for a fortnight.

It's easy to list the failings of today's legal aid system '“ less easy to recommend answers. One of the reasons why ministers have been able to foist such poorly thought-out schemes like best value tendering in crime has been a lack of credible solutions advanced by that loose coalition of practitioners and campaigners that can be called the access to justice lobby.

'Technical and remote'

There has also been a failure to make the case as to the value of publicly-funded law in our society. Jonathan Freedland in The Guardian hit the nail squarely on the head when in 2006 he wrote that ministers enjoyed 'a powerful advantage taking on what is surely the most friendless wing of the welfare state. Unlike schools or hospitals, legal aid seems technical and remote to all but those who've had to use it.'

Over the course of this year, LAG has been talking to ordinary people '“ including those who have lost their jobs and homes in the so called credit crunch '“ about what access to justice means to them.

There are no quick fixes to the problems that beset legal aid in the 21st century but LAG attempts to provide some solutions. In fact, in LAG's latest report, 'The Justice Gap', we have come up with 20 'proposals and possible solutions'. We start with a call for a declaration as to what society should expect from a publicly-funded legal system.

We argue that legal aid policy has lost the plot '“ and will continue to do so unless providers of legally-aided services, policy makers, and administrators of the scheme can sign up to common principles. So, we begin with a call on them to sign up to six 'foundation' principles, namely that:

• access to justice is the constitutional right of each citizen (Rushcliffe wanted legal aid to be available in cases 'in which lawyers normally represented private individual clients');
• access to justice applies equally to civil and criminal law (and so civil isn't the poor relation surviving on the change from the criminal system);
• the interests of the citizen should determine policy (i.e. not providers);
• the constitutional right to be regarded as innocent until proved guilty should be respected as a cardinal principle of criminal law;
• promoting access to justice requires policies across a range of areas including law reform, education and legal services; and
• proposals for reform must take account of the realistic levels of resources but these should not be seen as defining policy.

As a result of the policy vacuum that surrounds legal aid, we must consider the future of the Legal Services Commission. The commission's reinvention as a stripped down 'procurement agency' means that it has absolved itself of the wider responsibility for promoting 'access to justice' and taking the initiative on policy ideas. The LSC has become a service delivery agency for the Ministry of Justice. Legal aid urgently needs a strong non-government advocate.

We need a legal aid system that is inclusive '“ one that deals with the widespread perception that the law, and the enforcement of legal rights, is a luxury that the majority of us on modest means can't afford. We propose as a starting point a free service for all, providing basic information and advice on civil law through a national telephone advice service and without a means test. This needs to be supported by comprehensive legal materials available online and in print form. Such a service is there in skeleton form through Citizens Advice's fledgling telephone advice line and online advice guide and the LSC's Community Legal Advice (formally Community Legal Service Direct). There needs to be a structured and coherent approach to public legal education addressing the dearth of decent reliable information about legal and consumer rights on the internet.

We don't anticipate any government will increase the budget for legal aid. So tough calls are going to have to be made and the future of legal help might well have to be looked at '“ both what it covers and how effective it is in resolving problems.

LEI insurance

We connect this proposed new universal service to the untapped potential for legal expenses insurance to help plug the justice gap. At present LEI insurance policies make a tiny but useful contribution to access to justice despite the fact that just under half of us have policies in our household or motor policies on the UK.

The problem with LEI is that most of us are oblivious both to its existence and its usefulness. Contrast this with Germany where some 45 per cent of the population is covered by legal expenses insurance and it is much more relied upon. There are obvious cultural differences '“ the idea of protecting yourself against legal risk is apparently firmly entrenched in the German psyche. Germans buy LEI to insure against the legal risks, whereas in the UK it's often given away with other insurance policies.

If ministers were to encourage a greater take-up of LEI, in partnership with the insurance industry, and work on common standards it could become a significant component in enabling people to have legal redress. We suggest LEI could be re-branded. What about 'private legal aid'? Such an idea might be anathema to some readers understandably uneasy with offloading the responsibilities of the state on the private sector.

Putting aside those issues, there are practical problems. The greater acceptance of LEI would, of course, drive up premiums '“ currently an affordable £20. Then there are referral fees. Now the ban on such payments has been lifted, some insurers take their £20 premium and also make £600 flogging claims on to lawyers. It is an unseemly 'win-win' deal run for the insurance industry which the consumer doesn't know about.

If transparency can be achieved, then some of those funds should be diverted back to the accident victims '“ perhaps through the kind of service we have outlined.

This private sector solution could be integrated with the publicly-funded legal advice sector. So, for example, insurer-funded helplines could link with this new comprehensive telephone advice service. That could field all calls, provide generalist help and then refer callers on for further specialist advice through the publicly-funded sector, their union or insurer.

We are not advocating expanding generalist advice at the expense of specialist advice. Quite the opposite; a new universal service could free up the network of specialist providers to undertake detailed casework.

The Access to Justice Audit is a Legal Action Group project interviewing ordinary people about their experiences of legal advice and the law (see www.lag.org.uk). Since February, Jon Robins has been talking to people in courts, citizens' advice bureaux, law centres and solicitors' firms around the country.

You can also watch a series of short films by Jon and Guardian video producer Shehani Fernando based on the research at www.guardian.co.uk/money/series/the-justice-gap