LawWorks has continued to work on a range of policy issues during the pandemic, and relevant consultations and inquiries - recent submissions and responses have included the Legal Services Board’s strategy, the review of the Human Rights Act, and the Government’s Green Paper on Procurement.
In a context of Government activity and unprecedented change, it can be challenging for a small charity like LawWorks to know where to prioritise our policy focus to develop a distinct policy voice for pro bono. Our test for what areas of policy, consultations and legislative issues (Parliamentary Bills etc) to engage with is guided by their relevance to pro bono and access to justice. Strategically, where can our voice add most value? What type of policy changes that we can work towards will have the most impact?
Legal Services Board
Pro bono does not work in a vacuum, so relevant legal sector debates about legal aid, and the future of the whole legal services market are at the top of our priorities. In December 2020, the Legal Services Board (LSB) published its “State of Legal Services 2020 report”. Firstly it focuses on legal need: 3.6 million adults in England and Wales are reported to have an unmet legal need involving a dispute every year, and over 1 in 3 adults (36%) have low confidence that they could achieve a fair and positive outcome when faced with a legal problem. The report also reflects on 10 years of regulation; it finds that within our internationally respected jurisdiction, there is much to celebrate with wider consumer choice, more varied business models and strong and steady economic growth driven by a successful corporate sector. However, it also questions whether the sector meets the needs of all and concludes that legal services are out of reach for large parts of society, including BAME communities, people with disabilities, younger people, those on lower incomes and people with a low level of education.
Our response to the LSB’s business strategy and business plan challenges the LSB and regulators to give greater attention to issues concerning pro bono and its important contribution to enabling access to justice, including how regulatory frameworks might better support legal professionals undertaking pro bono work, and the incentives and barriers. As well as sharing ideas about how the LSB can support access to justice, including encouraging and facilitating innovation in models of practice, products and technology, our response highlights the important role for Public Legal Education (PLE), and raises specific regulatory issues that can impact pro bono, such as section 15 of the Legal Services Act 2007 (LSA), and also the intersection between the LSA regimes and other regulators of non-profit services . The LSA itself has come under increasing scrutiny since the report of the Competition and Markets Authority on legal services, and subsequently the Mayson report, which questions whether the professions’ “reserved activities” are an effective method for drawing the boundary between regulated and unregulated services (see our submissions).
Procurement and pro bono
Another big strategic issue is legal services procurement. Our response to the Government’s Green Paper on public sector procurement brings to attention the possibilities of structuring a positive link between social value, Corporate Social Responsibility, and pro bono within a procurement context. Citing models in Australia, Ireland and Scotland we ask how the procurement process could be used to build in positive incentives for legal services suppliers to encourage lawyers to participate in pro bono work. Putting social value and sustainability at the heart of public procurement could also help to re-design legal aid contracts to better meet the needs of that market.
Comprehensive Spending Review
An overarching concern during the pandemic and beyond is how to make access to justice a more central consideration for Government. In autumn 2020, LawWorks co-ordinated a submission to the Treasury’s Comprehensive Spending Review on behalf of the Litigants in Person Support Strategy. The submission focuses on the positive impact that investment across a range of legal support, information and advice can make, and the demonstrable economic and social value of this support. Whilst there have been some positive signs that the Government is willing to put more resource into this sector, for example through the Community Justice Fund, it is a case that needs to be continually made and strengthened. In particular, the sustainability of the legal aid market has been steadily eroded over many years – this is now the subject of a Westminster Inquiry organised by the Legal Aid Practitioners Group.
Administrative law and Human Rights
A focus on access to justice is needed to make the rule of law real and effective, from people being able to identity legal problems and understand their rights (“legal capability”), to having effective sources of information, advice and support, including being able to pursue legal remedies in courts and tribunals and other redress procedures with assistance if required. Two developments which give cause for concern are the Government’s approach to judicial review and human rights, both the subject of separate reviews. LawWorks provided a submission last year to the Independent Review of Administrative Law, and more recently to the Independent Review of the Human Rights Act
Legal and advice sector roundtable
We continue to engage with relevant inquiries into the courts, legal aid and access to justice (examples have included written and oral evidence to the Justice Select Committee, and the House of Lords) and to work with colleagues on the All Party Parliamentary Group on Pro Bono and Public Legal Education – a big welcome to new co-chairs Laura Farris and Christina Rees. The Legal and Advice Sector Roundtable also provides a valuable forum developing collective insight and voice, and engagement with justice bodies.
Opportunities for change
Whilst long term advocacy on these issues can sometimes be an uphill struggle, positive policy outcomes are possible – for example crucial reforms to provide legal protection and support for survivors of domestic abuse and violence have been progressed on an all-party basis and will shortly be on the statute book. In 2020, LawWorks and the LIPSS partners supported calls for change with a parliamentary briefing on this and other family law issues. Upcoming opportunities to advocate for positive change include the civil legal aid means-test review, and further developments from the Ministry of Justice’s Legal Support Action Plan to refocus on the value of early legal support and advice (know as “ELSA) whether through community services, digital platforms or other channels. In contributing to these, LawWorks continues to maintain that pro bono should add value to, and never be an alternative for, publicly funded provision.