‘Going out of scope’: the Big Society and the demise of legal aid

by Joseph Markus

We are witnessing an unparalleled assault on the structures of social welfare in this country. This Tory-led Government appears determined to severely curb the extent to which the state will intervene in, and help with, the lives of those most marginalised and most disadvantaged in day-to-day life.

The ideological ethos behind this move is, ironically, rather similar to the ideological motivations of, for instance, the Labour Party. The idea of the Big Society—of a supportive community—is touted to fill the gap left by the retreat of the Big State. In support of the roll-back, the Government has cited the apparently many and manifest problems of centralisation, public control, and an idolatry of the state at odds with the supreme values of civic conservatism. These rationales are imagined to justify why the Big State is a Bad Thing.

But it never really is that simple.

A prime example of this misguided—and thoroughly acontextual—thinking is the Legal Aid, Sentencing and Punishment of Offenders Bill, last night the subject of votes in the House of Lords (who are doing a fine job, unlike the Commons, of trying to reign in the Government).

Lawyers have traditionally been pretty good when it comes to fulfilling their social responsibility. Both student and experienced lawyers welcome pro bono work, that is, work for the public good. There are significant benefits: that it will make them better lawyers, and that it will make them better people through helping others. And there will always remain a role for pro bono work in a political climate that is hostile to both Government spending and Big State assistance.

However it could never be said that pro bono work can completely fill in the areas that are to go ‘out of scope’ under LASPO.

First it’s important to recall that few lawyers only do pro bono work out of a sense of public duty. There is usually a dual motivation. In fact many of the major city law firms, particularly in a bid to attract work from discerning and socially-conscious clients (often from the US), endeavour to boost their carbon and social profiles through appropriate initiatives. If the profit to effort ratio does not match up, then these lawyers will not be likely to fully support the ex-legal aid sector.

The flip side of that point is the recognition that one of the things the Big State does exceptionally well is uniformity. The state can reach all corners of the country, it can provide uniform coverage for those who need assistance, and, as such, there need not be any gaps. This is because the motive for Government intervention is fundamentally different from the motivation of the private sector. The state can act to advance public goods—equal access to a form of (legal) justice—whereas the private sector is obviously limited by, amongst other things, the profit motive and the need to please shareholders and paymasters.

Slow decline in funding for public legal services will inevitably mean that the best and brightest (of the lawyers) will not go into these lines of work. It simply will no longer be a viable professional trajectory. Similarly with the consolidation of the idea(l) of consumerism and choice in the context of the universities system, student lawyers will, more than anything else, be looking for a return on the £27,000 (or so) investment that they have made in their professional future. Add to that figure the further (mandatory) cost of (private) vocational tuition for all aspiring lawyers, and any incentive to do work for the benefit of people other than yourself quickly fades away. The unfortunate result of this, and of the funding void, will be the loss of accrued personal and institutional expertise in areas as important as employment law, social welfare law, and asylum and immigration law.

Logical extremes are often used at this point in an argument to make a point. This is my extremely logical example.

The future landscape of the legal profession will always be, to some extent, uncertain. However one obvious certainty of the reforms being pushed, slowly and agonisingly, through the House of Lords is that money is going to play an increasingly significant role in the provision of public goods.

The logical extreme is that one day, in many years time, there may only be one type of lawyer with one particular type of expertise: this will be the era of the ‘commercial’ lawyer, who dabbles inexpertly in ‘poor law’ to assuage their conscience and to support their business.

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