Written by: Alice Forbess
Research from the LSE suggests that access to specialist legal advice may be the first to go if the government goes ahead with the implementation of cuts to civil legal aid, which will eliminate from scope all cases involving social welfare law and most immigration and asylum matters. Whilst general advice may remain available (at least in large metropolitan areas) specialist legal advice and representation will be increasingly hard to find. But what exactly will be lost when access to the formal legal realm is placed out of the reach of the vulnerable people who often need it most?
The 12 month study Welfare, Rights and Law (Alice Forbess and Deborah James, both social anthropologists) documents how two vital London legal advice agencies – Southwark Law Centre and Community Links – plan to adjust to the projected loss of legal aid. In both organisations legal aid accounted for the lion’s share of their budgets.
The two organisations are quite different in ideology and approach and consequently envision different forms of innovation in order to survive the cuts. Southwark Law Centre, a community-managed law centre, remains committed to the ideals of the law centre movement of the 1970s – to make the law available at the grass roots and to use legal methods to fight social exclusion, poverty and injustice. Whilst formerly flourishing law centres in neighbouring boroughs are already running into financial trouble, Southwark has been fortunate enough to secure the support of its local authority, easing its transition to other forms of funding. However, they expect to face severe difficulties in securing funds for the longer term.
Community Links is a charity which has from inception developed its own unique model of community regeneration, a holistic approach which offers a range of activities and options, including legal advice. Initially its advice centre was open door and free to all. It was restricted to using legal means to address problems 15 years ago, when the government commissioned Community Links under the legal aid scheme. As eligibility for legal aid has gradually narrowed, advisers have become increasingly frustrated at the limits imposed by legal aid. ‘You must have a legal problem, otherwise we can’t help you,’ one adviser told a young woman who was seeking to prevent default on her debts. ‘Come back when you have defaulted and we will be able to negotiate on your behalf.’
The task of converting problems into specifically ‘legal’ ones, in line with the Legal Services Commission’s legal aid funding requirements, costs the charity a great deal of money funding posts dedicated to triage (in other words, determining the eligibility of prospective clients), billing and administration, as well as forcing it to turn away many desperate people.
Community Links advice centre managers are ambivalent about the loss of legal aid: on one hand they look forward to being able to create an innovative advice delivery system open to all and based solely on their own experiences of ‘what works’ and commitment to the prevention agenda. On the other hand, whilst they want to prioritise retaining the five specialist solicitors currently on staff, they simply can not guarantee this will be possible.
The trend thus seems to be towards an ‘informalisation’ of advice services as formal legal advice becomes too expensive to provide without legal aid funding. One can already see a differentiation taking place between Community Links and Southwark which is likely to find survival much more difficult precisely because of its commitment to doing specialist legal work.
The government argues that alternative means of dispute resolution will prove a welcome antidote to an excessive tendency to ‘legalise’ problems and rely on litigation to address them. Such ‘informalisation’ is presented as a ‘win, win’ situation, dispensing with cumbersome and unnecessary legal process to focus flexibly on finding a solution.
In family law, mediation is touted as an appropriate route for the vast majority of cases, and in social welfare law the Universal Credit system, to be introduced next year, will replace the current independent mechanism of appeal with an internal one, where the merit of challenges to decisions will be reviewed ‘in-house’ before it can go to an independent arbitrator at the second stage. The many clients with poor language skills or suffering from severe physical or mental disabilities are unlikely to make it to this stage without independent advice. In addition to this, many cases (for instance those of trafficking and torture victims in the UK illegally and seeking to regularise their situation) simply cannot be addressed without access to specialist legal services.
Fundamentally, the law accomplishes something which alternative means of dispute resolution do not: it can reverse enormous power inequalities by temporarily creating a level playing field between vulnerable individuals and powerful actors such as state organisations, and it can issue decisions binding on the powers that be. The loss of access to the formal legal realm, rather than the loss of access to advice as such, is perhaps the gravest consequence of the current cuts.