Social justice on the margins: the future of the not for profit sector as providers of legal advice in England and Wales

Abstract

The Legal Aid, Sentencing and Punishment of Offenders Act (LASPO) has been described by many commentators as a dramatic curtailment of access to justice which is likely to impact disproportionately on marginalised groups and individuals. This paper seeks to set LASPO in its historical context; it is viewed as a radical development, but nevertheless one that is consistent with the policy discourses of responsibilisation and consumerism dominant since at least the 1990s. The paper uses research into the experience of the not for profit sector's involvement in legally aided welfare advice to frame this perspective. Key findings include the extent to which respondents (both managers and front line workers) felt that while Legal Services Commission funding had transformed organisational practices and ethos, the implementation of LASPO and the austerity programme represented a critical watershed for the sector and its capacity to fulfil what front line workers in particular felt was their ‘mission’.

Keywords:

• NFP sector
• legal aid
• responsibilisation
• access to justice
• Big Society

Notes

 1. In fact the NFP sector began engaging in legal advice work in the early 1970s. In addition to the long established CABx and emerging Law Centre movement, new agencies began to spring up. This development was part of a more general burgeoning of the advice sector, and was largely funded by grants from local authorities, whose role had similarly expanded at this time. CABx led the move to employ a small number of lawyers to support its lay workforce, and in the mid-1980s, following a proposal to a government Efficiency Scrutiny that significant savings would be made by transferring legal advice to the NFP advice sector, contemplated bidding for this work. The idea was dropped in part because of opposition to the idea from within the CAB (Smith 2011, p. 12).

 2. Since conditional entitlement is fundamental to the neo-liberal project, the move to these changes in benefits was initiated by the Thatcher government, and since then has been progressively extended and intensified. The manner in which all claimants of Incapacity Benefit have been re-tested – described by Levitas (2012, p. 323) as both incompetent and brutal – exemplifies the increasingly punitive and complex administration of benefits.

 3. Giddens (1990) and Beck (1992) see the increasing individualisation of responsibility for success and/or failure as inherent in late modernity. This focus constructs success as the result of an individual rather than in any way the result of structural positioning. Eekelar (1991) points out how the principles of ‘responsibilisation, noted by Garland (2001) in relation to responses to the “crime control complex” of late modernity, are equally evident in moves to promote parental responsibility as being pre-eminently an individual responsibility thus absolving the state from a wider duty of care’

 4. See, for instance, Ilcan and Basok (2004). Collins and Mayer describe how, during the 1980s and 1990s, neo-liberal philosophies and practices peaked with the introduction of the Family Support Act in 1988 (Reagan Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA) (Clinton) in 1996.

 5. The term judicare is a North American one, and is based on the idea that access to justice meant that lawyers' services should be available to everyone so that ‘no one will be financially unable to prosecute a just and reasonable claim or defend a legal right and counsel and solicitors (would be) remunerated for their services’ (Lord Chancellor 1948, cited in Smith 1997, p. 13).

 6. Marshall (1950), one of the visionaries of the welfare state, argued that post-war socialised citizenship had initiated a transformation of the formulaic equality of liberal legalism into a more responsive and policy oriented form of law and lawyering (Sommerlad 2004) which he hoped would be fully realised in the tribunal system. It has been argued that, even had this vision been fully realised, the problems inherent in a capitalist legal system – such as the dichotomy between legal and social justice and the resulting individualisation and de-politicisation of systemic problems – would have remained (see, e.g., Abel 1985).

 7. LAG had long been critical of the fact that any High Street General Practitioner was allowed to deliver legally aided services whether or not they had specialist expertise in the client's legal need and without any effective external scrutiny; they therefore advocated greater control over legally aided services through a scheme which resembled franchising (LAG 1992; and see Hansen 1992).

 8. Exemplified by the description of legal aid clients as ‘state funded rottweillers’ by Gary Streeter, Conservative Under Secretary of State at the Lord Chancellors Department, quoted in: ‘Streeter confirms legally aided litigants are rottweillers’ (1996) New Law Journal 1378.

 9. Over the course of New Labour's time in office more and more public services were contracted out to the NFP sector, doubling government spending on it to £11 billion a year (HM Government 2009, p. 6). The policy reflected the enthusiasm for communitarianism and hence for the sector's contribution to civic cohesion, yet, at the same time, stigmatisation of the sector's clients and increasingly interventionist regulation combined to undermine its original values and morale (see, e.g., Morris and Atkinson 2003 for discussion of the negative impact on the independence and governance of the sector as a whole)

10. Thus Labour MP Frank Field has argued that ‘even if the money were available to lift all children out of income poverty in the short term, it is far from clear that this move would in itself close the achievement gap’ (2010).

11. This intensification of conditionality was supported by the increasingly authoritarian aspect of New Labour's communitarian thinking, for instance the emphasis in policy debates on the need for claimant responsibility (White 2000) and endorsement of the neo-liberal refrain that ‘benefits trap people into a lifetime of dependency’ (DWP 2006). The clear objective was a system where virtually everyone claiming benefit and not in work should have personalised support for a return to work, backed by compulsory work-related activity and sanctions. Hence the Welfare Reform Act 2007 which introduced the employment and support allowance (ESA), a tougher medical test and increased engagement with personal advisers and work-related activity. The Welfare Reform Act 2009 aimed further to increase conditionality by enacting the 2008 review of conditionality (Gregg 2008) which separated claimants into a work-ready group; a progression to work group; and a no-conditionality group.

12. There is an extensive literature on how neo-liberalism commodifies social welfare and social justice and generally, approaching the human relationships involved in terms of supply and demand (see, for example, Dominelli 1999 and Connell et al. 2009).

13. See Defourny and Nyssens (2010), Hemmings (2011), Emejulu and Bassel (2013) for evidence of the same development in the NFP sector generally, both in the UK and internationally.

14. Blond summarised the ‘project of radical transformative conservatism’ as ‘nothing less than the restoration and creation of human association’ (2010).

15. This position forms part of a wider re-conceptualisation of the ideological basis for the state's engagement in other private civil law matters (Vogel 2008).

16. Our respondents' predictions which we discuss below that LASPO would have a devastating impact on the sector are already being confirmed; see for instance the survey conducted by Byrom (2013).

17. Examples agencies gave of these different ‘pots’ included the Financial Inclusion Fund; Big Lottery; EHRC; Lord Chancellor's grant; Local Authority grants. The Advice UK survey (December 2010) http://www.adviceuk.org.uk/projects-and-resources found that 89.5% of its members experiencing major cuts.

18. For the sector as a whole (not just engaged in legal advice), it is estimated that the austerity programme entails £4.5 billion spending cuts (Ellison 2011).

19. For this strand of the Conservative party it is not just the NFP sector which brings value but also the for profit sector. In the House of Commons debates over the Big Society, Tesco was cited by MP Christopher Chope as an example of the For Profit sector creating social capital.

20. The concept of Social Enterprise has been articulated by Hurd and Maude as follows: ‘a strategy to grow the social investment market giving charities and social enterprises access to new potentially multi billion pound capital… cornerstone of the social investment market attracting more investment from wealthy individuals, charitable foundations and ultimately socially responsible everyday savers in social ISAs and pension funds’ (14/2/11 cited in House of Commons Justice Committee, p. 50). In practice, as Dufourny and Nyssens note, in the UK this formulation tends to place an emphasis on a business model (rather than the cooperative model embraced more commonly in continental Europe 2010).

21. These demands chime with the vision for improving access to justice offered by Susskind who recommends that legal service providers embrace technology, commoditise services, become entrepreneurial, and market driven (Susskind 2012, p. 11); see too Ellison and Flint (2010).

22. LSC influence was enhanced through service level agreements as well as cost and compliance auditing (Sanderson and Sommerlad 2011).

23. The claim by the sector to deliver a better quality service than private practice is supported by the Moorhead et al. (2001) study of quality.

24. In other parts of the sector (unconnected with legal services) contracts have increasingly been given to the ‘big hitters’ (Davies 2011, p. 643).

25. Again the Coalition policy builds on the model of responsibilisation developed by New Labour,. It is a policy which is encapsulated in Susskind's proposals to enhance access to justice: ‘citizens themselves must be appropriately empowered, so they can take care of some legal affairs on their own and work more productively with those who advise them …’ (2012, p. 11).