Rethinking access to justice

‘City’s aid sought for post-LASPO project,’ announced the Law Society earlier this month. Apparently, Chancery Lane is seeking the backing of City firms for (in its words) ‘a high-profile initiative aimed at helping high street practices and their clients meet the challenges posed by legal aid cuts’. The Society’s vice-president Lucy Scott-Moncrieff discusses the group’s response to the Legal Aid, Sentencing and Punishment of Offenders Act (LASPO).


Time for a rethink
Post-LASPO and following its Sound off for Justice campaign, will legal aid drop from the Society’s radar? Scott-Moncrieff who becomes the Society’s president in June, insists that won’t be the case. ‘The spotlight is on “access to justice”. It is an integral par of the rule of law – and we are all for the rule of law. It’s a standing item on our agenda.’ Scott-Moncrieff, a legal aid lawyer and managing partner of Scott-Moncrieff & Associates LLP, describes the Sound off campaign as ‘high profile and having had some positive results – even though it hasn’t changed as much of LASPO as we’d have hoped’.

Scott-Moncrieff talks about the ‘need to rethink the “access to justice settlement” that we have all existed within for several decades at least’. As a trustee of LawWorks, she says she is aware ‘that the City is really careful not to tread on other solicitors’ toes’.

The Law Society appears to be ready to rethink the old pro bono mantra – i.e., it is ‘an adjunct to, not a replacement for’ legal aid. She describes relationship between legal aid firms, the not-for-profit sector and pro bono community as ‘like a mosaic where things touch up against each other without any overlap and merging’. ‘But, because of the legal aid cuts, that is going to have to be rethought,’ she adds.

‘We want to get the City involved. Many are committed to social welfare law either through their corporate social responsibility agenda or simply because that is because it is what they want to do. We are trying to think of ways they can use their skills and resources and deep pockets to engage in strategic litigation.’

Thinking strategically
Chancery Lane is hoping to secure funding from the philanthropic sector and help from City firms to develop ‘a strategic litigation function that will ­monitor and challenge LASPO’s implementation’.

What does that mean? Scott-Moncrieff has two different types of strategic litigation in mind. Firstly, ‘keeping a very close eye on the workings of LASPO to make sure that it is being implemented properly’. ‘The general consensus is there is no part of LASPO that is judicially reviewable on the face of the Bill,’ she says. ‘But obviously if things aren’t working as they are meant to be – and if people aren’t getting access to justice – then that is something that can be acted upon.’

The second example of ‘strategic litigation’ relates to that part of the social welfare law scheme that holds public bodies to account for ‘allegedly poor decision-making’. ‘That situation is only going to get worse. People aren’t going to be able to challenge decisions through legal aid [because of the cuts] and public bodies are going to be under great pressure because of the austerity program.’

Chancery Lane is exploring the possibility that –in Scott-Moncrieff’s words – ‘a City firm could work together with local agencies and local firms to hold a particular public body to account’  – by way of an example, she cites Lewisham housing department. ‘Any lawyers engaged with advising or helping people with housing problems in Lewisham – or unable to advise or help – can send information to the City firm which will be able to analyse, research and identify whether the local authority is complying with its public duties and therefore hold them to account.’

And what about the rest of the country? The solicitor says they aren’t just thinking about involving City firms but large commercial firms in the regions as well. ‘We have mainly been talking to firms on the City because they are the ones that come to our pro bono meetings,’ she says.

Scott-Moncrieff reckons that such an approach could be ‘a very good symbiosis’ between private practice, the advice sector and City. ‘You can imagine a situation where a large firm might carry out an analysis that might suggest a public body is failing in its duty. If push came to shove and it was necessary to litigate then it could go back down to legal aid firm.’

Reconfiguring legal aid practice
The project isn’t just about LASPO, but also relates to that other higly controversial landmark legislation which promises to radically shake up the profession, the Legal Services Act 2007 and in particular the introduction of alternative business structures (ABSs). ‘At the Law Society we consider small firms, local firms, as an incredibly important part of legal service provision,’ Scott-Moncrieff says. ‘It is important that we don’t lose those firms. It is important that they don’t get hoovered up into larger and more commoditised organizations.’

Consequently, the Society wants to promote the discussion of ideas about surviving increased competition from new market entrants. In particular practical ideas about – as Scott-Moncrieff puts it – ‘lowering overheads; ways of reconfiguring services so that they are more affordable; [and] persuading people who would normally not go to a solicitor that solicitors can help and be user-friendly.’

ABSs can be an opportunity not just a threat to law firms – even cash-strapped legal aid firms. She cites the model of community interest companies as ‘the kind of reconfiguration might allow firms to access other sources of funding for example charitable grants’. A CIC is relatively new corporate structure designed for social enterprises that want to use profits for the public good and both Rochdale and Islington Law Centres are setting up as CICs – as reported on LegalVoice HERE and HERE.

‘This is not about Law Society policy but it is about capturing the inventiveness of the profession and its ingenuity.’

Scott-Moncrieff’s own firm, SCOMO, is a ‘virtual’ firm with its 60 fee-earners who are all self-employed consultants who either work from home or from their own offices. They must bring into the firm a minimum of £30,000 annually and from that SCOMO keeps 30% to cover the costs of running the business – see HERE. ‘We are able to pay our fee earners 70% of what they bring in  – that’s about double what lawyers get paid in other firms,’ she says.

Challenging complacency
Lucy Scott-Moncrieff denies that there is a danger of more calls on the City’s largesse being spread to thin to the detriment of, for example, the legal advice sector. What about the Law Centre Federation proposal that £25 should be added to practising certificate fees to help Law Centres survive LASPO? ‘I’m not sure there will be much appetite for it,’ she says; adding that it might raise enough funds to recruit an extra member of staff for every Law Centre. ‘That is great, but it’s not going to replace legal aid either. Something more fundamental needs to be done. We need to challenge the complacency that allows so many poor decisions to be made. We have to do more to help the majority of people who are subject to poor decision-making.’


About Jon Robins

Jon is a journalist and has written about the law and justice for the national papers and specialist press for more than 15 years. Jon is a visiting journalism lecturer at Winchester University, a visiting senior fellow in access to justice at the University of Lincoln and patron of Hackney Community Law Centre. He has won the Bar Council’s legal reporter of the year award twice (2015 and 2005). Jon is editor and co-founder of LegalVoice