Roger Smith and Nic Madge are both eminent legal minds, but they couldn’t have more different dispositions. When I meet Madge, a former judge, in the lounge of a hotel by the Thames, he is quietly spoken and carefully weighs each word as though presiding over a trial. Smith, on the other hand—a visiting professor of law at London South Bank University and former director of charity JUSTICE—is full of energy and erupts into laughter several times during our conversation. We are talking about the pair’s radical proposal for a new National Legal Service. Smith has the next general election on his mind.
Two veterans of the legal aid system, both Smith and Madge are former solicitors—they were frontline fighters in the battle for justice for those who couldn’t afford legal representation. Dealing with everyday issues such as landlord and tenant disputes or tribunal cases related to benefits for their clients, the work of civil legal aid lawyers couldn’t have higher stakes—a home may be on the line, or the sense of safety that comes from obtaining an injunction against an abusive partner. Today, Smith and Madge are dismayed to find the system in the worst state they’ve ever seen it.
Since 2012, the legal aid budget has seen swingeing cuts. Cuts to criminal legal aid have recently been in the headlines, after the barristers who provide free or affordable advice and representation to people in the criminal justice system went on strike. Their action, over real-terms cuts to their pay of an average of 28 per cent since 2006, has ended after a 15 per cent pay offer from the government. But another crisis—the evisceration of civil legal aid, which provides people with advice on issues including housing, debt and social welfare—has attracted less media attention.
According to the Law Society, there were almost a million civil legal aid advice cases opened between 2010 and 2011, whereas between 2021 and 2022 there were just 130,000. The number of not-for-profit organisations providing civil legal aid has fallen by 59 per cent and the number of people attending court unrepresented has trebled. “This is a dire time, a horrible time, I’ve never known a time worse,” Smith tells me over the phone. “But, actually, there are some opportunities here to reconfigure the system in a better-structured way.”
Legal aid was introduced in 1949 by the Attlee government. It is organised, Smith tells me, around “the basic notion” that “you would subsidise the poor to have the lawyers that the rich had.” According to Madge, legal aid fundamentally changed society, as people became aware of their rights—and the fact they had access to lawyers that could help to enforce them—throughout the 1960s and 1970s. “Shops realised they couldn’t get away with selling dodgy goods because they’d get sued. Builders realised that they had to do proper work or they’d be sued. Landlords realised that they couldn’t evict tenants illegally because they’d be sued. Employers realised that they couldn’t sack people unfairly because they’d go to tribunals.”
In 2010, before the cuts introduced by the Legal Aid, Sentencing and Punishment of Offenders Act 2012, “you could credibly argue that our legal aid was the best in the world,” wrote Smith earlier this year. There was a national network of private solicitors paid by the state to provide legal advice and assistance on almost all areas of civil law. I wonder, then, if the scheme was so successful when properly funded, why Smith and Madge are not simply campaigning for a return to pre-2010 levels of funding? “The government should recognise the need to reverse the 2012 cuts and to raise expenditure on legal aid to the maximum level possible,” they write in the blog post launching their report. They also acknowledge that “we have to explore what might be done with only limited increases in government expenditure.”
The evisceration of civil legal aid has attracted little media attention
Smith believes that our model of civil legal aid, though great when it was properly funded, had two defects. “Number one, it was undoubtedly the most expensive scheme in the world, because it was using private-practice providers to deliver public services,” he says. Number two, the scheme is “very lawyer orientated and very, very focused on the end of the system of litigation, rather than on giving people information up front and early settlement of cases.”
The pair want to replace the civil legal aid system as we know it with a “comprehensive network of integrated levels of assistance—each potentially separate but commonly branded as part of a new National Legal Service—that progressively assist people to enforce rights, resolve problems and settle disputes. That will range from the basic provision of information through access to self-help tools where appropriate to individualised legal advice and representation.”
Their proposed service would include advice providers such as Citizens Advice and charities such as the Child Poverty Action Group, as well as law centres and legal aid firms under The National Legal Service brand. “What we’re arguing for,” says Smith “is a fundamental shift in the concept of legal aid… from funding lawyers for poor people to providing information for everybody and helping with the resolution of disputes in the most appropriate way.” They have some unusual ideas for potential funding, including implementing “a levy on the better-paid members of the legal profession”—an idea first floated by Michael Gove when he was lord chancellor in 2015.
I question both Smith and Madge on whether they think it is plausible that lawyers at city firms will be willing to cough up for a legal aid system, and whether it is their responsibility to do so. “Every lawyer in the major city firms benefits from the fact that others of their comrades are out there in the field working long hours for low money. I would say that the interests of the profession as a whole would justify a degree of internal redistribution,” Smith tells me. According to Madge, it is not just about highfalutin principles but also about reputation: “Think about the press that the city firms get—how often do you hear about fat cat lawyers? There is nothing wrong with lawyers earning good money. There’s nothing wrong with city firms making large profits. But if their reputation is improved by them saying, ‘we are putting money back into the system,’ then that’s good.”
Landlords realised that they couldn’t evict tenants illegally because they’d be sued
What do other members of the civil legal aid sector make of Smith and Madge’s proposals? “If we are to promote the view that legal services are public services, then we must also be prepared to make the argument for funding them as such, through general taxation. After all, the NHS is not funded by a levy on Bupa,” writes Joseph Summers, a research assistant at Public Law Project. He also questions whether a National Legal Service would create issues of trust with clients: “When vulnerable service users are attacked by the home secretary as ‘holding values at odds with our country’, it is vital that providers can present themselves as independent to earn clients’ trust. Government-backed branding might challenge this,” he writes. However, Madge is emphatic that “We do not advocate a nationalised legal service. It’s fundamentally important that all legal providers maintain independence, are free of political control, free of political influence.”
Chris Minnoch is chief executive officer of the Legal Aid Practitioners Group. “What Roger and Nic are trying to do with their proposal, and I am sure they wouldn’t mind me saying this, is generate debate and discussion about how we restore legal aid, or access to free legal services more generally, to their rightful place at the heart of a properly funded justice system,” he says.
I ask whether the members of his organisation would be willing to work for a National Legal Service, as proposed by Smith and Madge. “We have asked a number of our members that very question. The answer has invariably been that there simply isn’t enough detail in the proposal to know how it might work on the ground, or how integrated the services and providers would be. Practitioners have therefore told us that this is a useful starting point for a developing conversation, but they won’t be drawn on whether it is a good idea or whether they might consider becoming part of it in the future.
“They are, however, all unanimous behind the need for change—potentially quite radical change—and grateful to Roger and Nic for putting so much thought into a potential solution.”
