Pro bono – filling the gap?

Paul Yates

‘Pro Bono Legal Work is always only an adjunct to, and not a substitute for,
a proper system of publicly funded legal services.’

So runs ‘the mantra’ of the UK pro bono community, enshrined in the joint pro bono protocol and recited at every opportunity by those who work in the sector.

The mantra sits in direct conflict with an awkward question which is being raised with increasing frequency (most recently at a Question Time event as part of this year’s National pro bono week): how should pro bono most effectively help to plug the gap left by recent cuts to legal aid (See HERE and HERE)?

The question itself is rightly controversial. The pro bono sector has generally been at pains to make clear – not least to the government in response to its legal aid consultation – that pro bono is in no position to ‘fill the gap’.

But the argument about whether or not the pro bono community sticks to its mantra misses the point. Regardless of what our policy position is on the proper role of pro bono, it is a fact that pro bono cannot in practice fill a meaningful part of the growing access-to-justice gap left by legal aid cuts. The firms with real expertise in the relevant areas of social welfare law (immigration, welfare benefits, housing, debt, and so on) already do a substantial amount of pro bono work (although they typically do not call it that) and have little or no capacity to do more; the large commercial firms generally lack expertise in these areas of law.

(Indeed, because of this expertise mismatch, most commercial firms operating social welfare law pro bono projects work in partnership with advice agencies who have the relevant specialisms to train and supervise – and sometimes insure – their volunteers. An unintended consequence of the legal cuts is therefore that, as not-for-profit advice agencies continue to shrink and close, there will be less opportunity – not more – for commercial pro bono lawyers to volunteer in areas of social welfare law.)

But if pro bono cannot make meaningful inroads into the provision of legal services to those who were previously helped through legal aid, it might yet have another part to play in filling the gap.

I suggest that, where pro bono does venture tentatively into areas (such as immigration or welfare benefits) in which publicly funded legal help was previously available, one objective of any new project should be to gather evidence to make the case in the future for the re-introduction of legal aid in these areas.

The focus of such evidence-gathering should be on the long-term impact on public spending across the range of public bodies potentially affected by the outcomes of early advice or legal representation. For example, we might seek consent from 100 people who are helped on a particular project, and 100 who are not, for a researcher to contact them in 6, 12 and 24 months to ask them about how their situation has developed (including any call they have made on public funds, be that from DWP, a local authority, the NHS, or elsewhere).

So-called “advice deserts” are becoming an increasing concern. As well as thinking of ways to mitigate this problem, however, we should also pounce on the resulting statistical opportunities to compare outcomes in an area of the country where a pro bono project exists with a “control” in an area where there is none. In other words, as well as spreading out the limited resource ever more thinly across the country, we should also consider focusing effort in particular geographical areas, to showcase and evidence the long-term impact of proper end-to-end advice and representation. In any event pro bono cannot hope to do this other than in a few isolated areas.

Where possible such research should be independently commissioned, perhaps involving an academic institution, and might be funded by a range of stakeholders in the sector, including the commercial law firms involved in the relevant areas (who will usually be working in partnership with a specialist advice agency).

I am not suggesting any such increase in legal aid is conceivable at the moment. It may even be unlikely to happen during the next parliament, despite some encouraging comments from the shadow Justice minister. But at some point, perhaps in less austere times, we need to be in a position to make the case as forcefully as possible – and to a government of any hue – that it pays to invest public funds in proper expert legal help across the range of social welfare law. And pro bono can play a part in starting to gather that evidence now. In the area of social welfare law, pro bono lawyers should be aspiring to put themselves out of a job.

Pro bono in England and Wales is at a cross-roads, but so is our justice system. It is true that our pro bono sector has much to learn from jurisdictions like the US and Australia, in which civil legal aid is barely available and well-structured pro bono practices have for some time been operating in areas like asylum and immigration which in the UK are still generally off-limits. But we must not lose sight of where we want to end up. In continental Europe pro bono by contrast is in its infancy, and it is no coincidence that in these jurisdictions civil legal aid – to pay for proper expert legal help – is much more comprehensively available. We should learn from jurisdictions in which pro bono work is most effectively organised, but we should always keep in mind where we would rather be a poor person with a legal problem.

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