That’s disinterestedness, not uninterestedness, should anybody who went to school after about 1990 be reading this. Does nobody really read Kant any more? But, in a rather dismal demonstration of the trope of irony, this is likely to be an outright rant on the virtues of disinterest.
While most of us were focussed on the immediate effects of the Civil Legal Aid reforms on the financial viability of the private legal aid firms and the not-for-profit sector, there is another aspect which threatens not so much the viability as the foundational values of practice in the area. It has certainly not gone unnoticed, but perhaps had fewer headlines and caused fewer concerns. What is worrying is that the evidence that this will be a bad thing is not projective, but already with us.
I’m not talking about the evidence that the fixed fee legal helps have already pushed people into cherry picking simple matters, worrying though that is. It is rather a question of the current and future funding of advice work.
The LSC’s reforms are supposedly focussed on increasing access to advice. To that end, CLACS and CLANS are proposed – centres or networks that have a virtual monopoly on legal aid funded advice provision in the area. The idea being that clients who usually have a plurality of problems can have the full range addressed – or at least receive advice on them – in one place. This, in itself, is not a bad idea.
But CLACS and, to some extent, CLANS are supposed to receive funding from a range of sources, not least (not at all least) local authorities. For example the (as yet failed to be established) Leicester CLAC or the (on hold for years at best) Cornwall CLAN. Why is this a bad idea? Why should a decently funded ‘holistic’ advice provision be objectionable?
The answer can be found in part in a simple swap of near synonyms. In place of ‘advice’ try ‘assistance’. (In fact, this should be adopted by the LSC – in place of acts of advice, record acts of assistance). Assistance means aid in resolving or mitigating the problems. Advice merely means being told what the problems are and, at best, what the advisee might do about it themselves. It is a question of action over information.
In a few recent posts on his blog, Housed has expressed his frustrations with being a CLS funded housing advisor in a CAB. The specific source of the frustration has been that the management of the CAB, which receives local authority funding, has been reluctant to support litigation against the local authority as landlord or housing provider. (See here, and comments here, for example).
As far as I can tell, there is no suggestion that the LA has ever leant on or threatened the CAB in terms of funding in any way. There is no suggestion that the funding was given conditions or limitations. But, but, but…
Where a local authority is a major funder, it is inescapably the case that an advice provider, at least at its management level, will have relations with the local authority in mind; they will always be concerned with the attitude of the local authority to them. This will inevitably filter down, in one form or another, to the frontline. It will shape the actions the body will support or encourage, although not necessarily consciously or as a matter of policy at all.
I should be clear that some LA funded bodies can and do avoid or mitigate this pressure, but that does not mean that it will not always be there. For this reason, I don’t think that Housed’s experience is in any way an isolated or extreme example.
The principle of legal aid funding used to be to enable people to obtain independent legal advice and assistance. Note the independent. I want to be clear – advice without the will to back it up with wholehearted assistance where it is needed is next to meaningless. For those in the greatest need, improved access to advice is often a nonsense unless they can also access legal assistance that is unaffected by any other consideration. After all, very often where legal action is needed, it will be against the local authority in one manifestation or another.
The great and saving merit of private legal aid solicitors (and non-LA funded not-for-profits) is that we are disinterested. We have no interest in bringing or not bringing an action against a local authority beyond the merits of the case itself. We also have no fear or concern in bringing such a case. We are in principle, and to date in fact, beholden to nobody. We are in principle, and to date in fact, free to consider a case on its merits without any back of the mind niggles about pissing off a local authority funder or losing the favour of the local bigwigs. Our greatest virtue (apart from being bloody good lawyers) is that we genuinely don’t give a toss what the landlord/benefit provider/housing authority/local councillor thinks of us, or what financial levers they might otherwise bring to bear.
To anybody wishing to raise an objection at this point, of course this does not mean we are disinterested in any specific case we are engaged in. Our job is to represent the client’s interest. And, of course, if it is a case where costs may be obtained against the opponent, we have a direct financial interest ourselves – albeit one that the CPR (and LSC merits based funding) ensures is pretty closely tied to the merits of the client’s case.
The truly terrifying prospect, which is already with us, is that ‘advice’ replaces, rather than augments, ‘assistance’. That LA funding, whilst apparently arms-length, weighs on the mind of the advice provider and shapes, however unconsciously, what they will do for the client.
If this funding format is extended to whole regions, supplanting and replacing the independent sector, then frankly, God help any clients with a difficult case against the local authority.
We in the private/independent sector do, of course, have one huge interest; one which is not ours alone. That interest is that the LSC does not continue on the path of abandoning the principle of independent legal advice and assistance regardless of government policy – which is to say that access to the law to defend one’s legal rights should remain the prime aim of public funding.
[Edit 10/05/08] William Flack, in a response piece to this post on his blog, has suggested that my view of independent solicitors is somewhat rose-tinted. That could well be the case, but what I was concerned with in this post were the structural pressures of funding.
No doubt there are dodgy practices concerned with, shall we say, maximising the return from the Legal Services Commission. In most instances, these practices will not actually affect the client – in civil matters at least – although the pressure to string things out may. (There may also be an issue when bringing cases against private individuals or bodies – will there be the money for a costs award when the claimant wins?).
However, this is different to funding issues which impact on not only what type of matter can be handled but, most importantly, against whom a case will be taken. In that respect, the independent solicitor is in a more disinterested position.