The Government needs to take the lead in setting out a structure for civil legal aid, argues Roger Smith

‘Embrace the ambiguity and the flexibility’ of the Community Legal Service (CLS), proclaims the Legal Services Commission in its recent consultation on the CLS’s future. What is more, ‘the absence of a specific definition of the CLS, or of a single body which is the CLS, provides scope for each participant to attach their own definition and objectives to the CLS’.


The consultation has some good ideas but at the level of strategic thinking it enters Alice in Wonderland – the CLS means whatever you say. This will not wash. We need clarity, ownership and direction.


The commission begins with a handicap. The CLS, as enacted by the Access to Justice Act 1999, is incoherent. This is not surprising. Ministers at the time conceived it on little more than the back of a fag packet in the mid-1990s. It seems that senior officials at the then Legal Aid Board were happy to encourage the idea – it allowed them to shift money into some innovative not-for-profit agencies. Lord Irvine appears, like most Lord Chancellors, not to have taken much of a personal interest in the detail of legal aid, preferring instead to leave that to his trusty minions, although it took the bulk of his department’s money.


Little more than half a decade later, the commission deserves some sympathy for having to make some sense of it all. It tries a little sleight of hand, arguing that it funds only specific services of a wider CLS, of which it is but part and of which it is but custodian.


This fits the funding – the commission is, as it reports, only a minority funder of the advice sector. However, it does not fit the legislation. For example, section 4(4) of the Act puts various duties on ‘every person who exercises any function relating to the Community Legal Service’. The commission’s argument would require every other funder of advice and legal services – whether private, personal or public – to be bound by this statutory duty, whether or not the commission was involved. This is nonsense. Even the commission is reduced to arguing that the CLS is a ’virtual’ organisation’ and ‘not highly visible’. Better to say it is virtually invisible and totally incomprehensible.


The commission is standing up as a patsy for the Department for Constitutional Affairs (DCA). As a government department, it really should have dealt with these matters – they are above the competence of the commission. Unless we are clear about the purpose and structure of what was once called civil legal aid, ultimately we will lose it.


We need to distinguish community legal and advice sets of services (CLASS) from the community legal service. This CLASS needs to be led by those funding it – the kind of ‘stakeholder’ group that, to be fair, the commission suggests. The CLASS needs a lead government department, and funding for advice services should be shifted to the DCA. CLASS should have a discrete secretariat. This could be seconded from the commission or the department.


The commission should make a clear division of responsibility between the ‘legal’ element of the services and information/general advice. There are implications to this – it would be logical to pass over to the CLASS that part of its budget that relates to ‘general information’ or general advice to operate on a subcontracted basis.


The result should be a clear budget for a community legal service – for lawyers and non-lawyers working within a legal environment. The commission displays a good division of the tripartite services that it should consequently fund:


  • Human and fundamental public law rights (for example, child care, asylum);


  • Private law ‘civil’ rights (family, criminal negligence); and


  • Welfare rights (or, in the contemporary circumlocution that avoids the dangerous concept of citizens’ entitlement, services ‘to redress problems which contribute to social exclusion’).



    • We need to build up from this division what lawyers can best deliver to help people with these problems. In this process, we might note with approval – but get remarkably little practical help from – the commission’s belief that services should be ‘client-focused and accessible, independent, cost-effective and co-ordinated and quality-assured’.


    Human and civil rights require lawyers at the ‘hard’ end. They do not need to be private practitioners but most of the specialists currently are. Policy-making should begin with the clients. What legal services do they need and, as importantly, what levels of financial eligibility are reasonable? The problem at the moment is that financial eligibility is being cut without any rationale but saving money.


    Providers and their representatives are apt to enter a conspiracy of silence on this issue. In relation to welfare rights, the commission again actually has the right answer – move towards law centres. In Canada, the state of Ontario provides the model for a national network of such centres delivering welfare rights through lawyers and non-lawyers working within an overall legal environment.


    Civil legal aid began with a clear vision– ‘to provide legal advice for those of slender means and resources so that no-one will be financially unable to prosecute a just and reasonable claim or defend a legal right’. With a bit of definition on ‘legal advice’, should we not accept that this remains a simple and understandable mission statement for the CLS?


    Roger Smith is director of the human rights campaigning group Justice