Adam, Zoe and Sarah were law student interns, participating in the WS Society Summer Internship programme during July 2018. This article summarises their research and presentation.
Accessing legal advice and representation can change someone’s life for the better. Under Article 6 of the European Convention of Human Rights, it is fundamental that you have the right to a fair trial. This includes the right to adequate facilities for the preparation of your defence and if you don’t have sufficient means to pay for legal assistance, to be given it free when the interests of justice so require.
Recently, in the upskirting campaign, fronted by Gina Martin, pro bono legal representation allowed her an opportunity to be heard when alternative means where unavailable. This campaign looks likely to change the law in England and Wales serving as an example of how pro bono work can not only positively help the individual, but can have a wider impact on society as a whole.
In England and Wales, the Legal Aid, Sentencing, and Punishment of Offenders Act 2012 (LASPO) aimed to reduce spending by reducing the scope of legal aid provision. A review of LASPO by the Law Society of England and Wales concluded that the cost-saving measures not only denied access to justice to many of those in need but also had a detrimental impact on the court systems by forcing people to act as litigants in person.
A Law Society of Scotland review of legal aid portrayed provision in Scotland in comparatively good health while recognising that significant reform is required in order to to maintain the scope and effectiveness of Scottish legal aid. Legal aid spending in Scotland is determined by demand and not capped by budget as it is in England and Wales. However, spending in Scotland is decreasing and total spending on criminal and civil Legal Aid is still less than 0.5% of the country’s overall public spending. The criminal and civil legal aid spend has fallen from £161 million to £136 million.
“GOVERNMENT POLICY REGARDING PUBLICLY FUNDED LEGAL ASSISTANCE IS DETERMINED LARGELY BY ECONOMIC FACTORS WITH LESS CONSIDERATION GIVEN TO ACCESS TO JUSTICE.
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In Scotland, the Police Station Duty scheme is a prime example of how quickly the wheels can fall off legal aid provision in a climate of austerity. Introduced following the Criminal Justice (Scotland) Act 2016, this legislation gives all suspects detained by police access to legal representation. Previously only those being interviewed by police would have legal representation. This is a fair and reasonable approach to take in terms of our obligations under the European Convention on Human Rights. However, both the Edinburgh and Glasgow Bar Associations and many other solicitors have withdrawn from the scheme citing concerns that the changes will bring about a dramatic increase in the volume and complexity of the workload. Despite this increase in workload, legal aid fees have not increased in line with inflation. Many solicitors are arguing that continuing participation in the scheme is not economically viable.
It is apparent, government policy regarding publicly funded legal assistance is determined largely by economic factors with less consideration given to access to justice. As legal professionals we should always remain vigilant to reduction in legal aid spending and the subsequent impact on access to justice. Can pro bono work go towards making amends for these restrictions in access to justice?
The demand for pro bono legal advice appears to have increased in recent years as the number of people who are ineligible for legal aid but cannot afford legal assistance has risen. Fortunately, an increasing importance on Corporate Social Responsibility has encouraged law firms to up their pro bono hours. But 78% have not made any plans to change their contribution in response to legal aid cuts.
A wide range of organisations partake in pro bono initiatives, from bar association pro bono programs to university legal clinics. With an increase in growth and demand, student law clinics are becoming a cornerstone of free legal assistance in Scotland – they not only provide legal advice and representation pro bono, but they play a role in providing access to justice in a wider sense. Law clinics maximise their ability to provide access to justice through community legal education projects with charities, local schools and prisons, and it has been suggested that they could even “tailor an approach to litigation” to steer the law in a certain way. A clinic could do this by directing their services to certain areas of law or even seeking out cases that have the potential to clarify or adjust the current law.
However, university law clinics are limited in the work they can carry out. Mainly due to practical reasons, i.e. capacity for casework, insurance policies held, student availability, and in some cases the nature of the case is considered. As well as this, a clinic’s own case selection criteria will narrow down its caseload.
So, what is the future for law clinics, law centres and other providers? An idea on the horizon is the utilisation of technology. Simple things like appointment reminders via text and DIY self-help toolkits (such as letter templates) online could save valuable time and resources which could be used more efficiently elsewhere. DIY self-help toolkits have provided extremely successful in the past, and law clinics could develop these further, to include a bigger range. Technology could also lengthen the reach of law clinics to rural areas, offering a “virtual legal service”. This virtual process could be facilitated not only by Skype and video conferencing but through the creation of an app that allows documents to be safely scanned and uploaded. With these tools in place, technology could be the way forward.
“TECHNOLOGY COULD BE THE WAY FORWARD”
New legislation that allows recovery of expenses where representation is pro bono received Royal Assent on 5 June this year. Prior to this, a party to an action where the other side is represented pro bono would have escaped the ‘expenses follow success’ rule. This Act will change pro bono work in civil cases massively: by levelling the playing field and making the process fairer, parties may be more inclined to negotiate or settle, whereas they would not be before, as now a pro bono expense order will be looming. More positively, these orders could generate funds for future pro bono activity, and taking on pro bono work would be more rewarding, as not only have you devoted time and energy into the case, but a part of the expenses recovered from the case would be ploughed back into the pro bono field.
Section 9 of the new act states that the expenses awarded will go to a Scottish Charity chosen by the Lord President of the Court of Session. This charity must have the aim of improving access to justice in respect of civil proceedings. As of yet, there has been no charity designated, so there is likely to be further discussion on this.
“PERHAPS THE PROBLEM IS THAT PRO BONO IS NOT A PROFESSIONAL OBLIGATION, BUT MORE A MORAL OBLIGATION?”
In response to growing restrictions on access to justice, discussions have arisen on whether mandatory measures will combat the problem.
It has been argued that a mandatory provision should be introduced compelling solicitors to partake in pro bono work, as they are the only ones with the legal expertise and specialised knowledge, so the duty is theirs. However, it feels that this justification is somewhat weak. The 'Public Assets' theory, seeks to provide a firmer justification, suggesting that a solicitor has a duty to give back to the community in return for the ‘publicly created’ statutory rights they benefit from. But, where does this duty end? In Scotland, where university is publicly funded, it could be argued that even a solicitor's legal knowledge or any professionals knowledge is, in part, a 'publicly created asset'. The grey area of the link between the need of society for legal advice and the duty of solicitors, that seems to be assumed by those who support mandatory pro bono, seems to be what makes it hard to present a solid justification for it.
Further concerns over mandatory pro bono are that it is unfair to expect hard working lawyers to work for free, and also that the quality of service may be poorer. This could be down to a lack of expertise in the areas of law most common to legal aid/pro bono cases, or a lack of passion and engagement with the case, as the lawyer is forced to take it on. Regarding the first concern, pro bono simply means undertaking professional work for free, meaning that lawyers of any expertise can help in some way, this point was argued by Alexander Forger, a former President of the New York Legal Aid Society in the ABA Journal. Despite these criticisms mandatory pro bono is in place in other countries.
Perhaps the problem is that pro bono is not a professional obligation but a moral obligation?
The idea of mandatory pro bono for lawyers raises the question of whether pro bono work should be a mandatory part of a law degree, either as preparation or as an alternative. By making pro bono work a part of the degree more people would be involved and that with mean more people would be helped. It would provide practical experience for students along with a clinical legal education which would be greatly beneficial to them and may encourage them to continue pro bono work once qualified. Ryan Whelan, the founder of the Aberdeen Law Project (ALP) who went on to work pro bono during the recent upskirting campaign is a prime example of this. However, there are concerns that mandatory clinic work would change the setup of the clinics and, as can be seen from Malcolm Combe's survey at ALP, students are also worried about the subjective nature the marking of clinic work would need to take. The same survey also rebuts the argument that student's priority in the clinic must be social justice or a poorer service will be given. Considering the excellent work that university law clinics already do, this seems like a good approach to bridging the gap.
Another suggestion for tackling the access to justice gap is the introduction of a levy on law firms, the money from which would go towards legal aid provisions. In 2015 Michael Gove, the Justice Secretary at the time, suggested that 1% be taken from the top 100 corporate law firms' profits. This idea was heavily criticised by many lawyers and firms as many were already involved in pro bono work, plus they felt that it was the responsibility of the
Government to fund legal aids as it was them who had cut funding in the first place. There is every likelihood that putting a tax on law firms would simply lead to them increasing their fees, in turn widening the access to justice gap.
Despite the calls for more mandatory provisions to aid pro bono work, there are arguments that if we simply reformed our current system of pro bono, then voluntary pro bono could work much more effectively. Esther Lardent, a pro bono specialist, took this view, opposing Forger in the aforementioned article, believing that voluntary pro bono programmes are not reaching their full potential due to lacking in administration resources. If pro bono in Scotland was more regulated and there was one organisation in charge perhaps we would have a more comprehensive and successful programme which could rival any mandatory system and help more people.
Overall, pro bono work has a positive impact on access to justice. As mentioned before, pro bono work plays a massive factor personally and socially when it comes to accessing justice. And the recent upskirting campaign illustrates this.
Pro bono work should be encouraged amongst qualified solicitors as well as students, as we have a valuable skill-set, and are in a privileged position to help those in need. Making pro bono work mandatory would inevitably fill the gap, however we don’t believe that this is the best way forward. Pro bono work should be adjunct to, not a replacement for, Legal Aid.