Crispin Passmore
Evidence to the Low Commission
5 December 2012
My evidence
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The evidence, analysis and opinion offered here is a personal reflection, based
upon my personal experience working in delivery of legal services since 1993.
I started out as a volunteer in a Citizens Advice Bureau and have been employed
as an adviser, specialising in representing consumers at tribunals.
I became first Chief Executive of Coventry Law Centre, perhaps largest Law Centre
in UK at time.
I subsequently worked for Legal Services Commission for five years, most latterly
as Interim Executive Director for Policy and Strategy Director
In 2009 I became Strategy Director at Legal Services Board, which is responsible
for modernising legal regulation in order to deliver a reformed and competitive
legal market focused on consumers.
None of the views expressed should be attributed to current or former employers.
For the record, the Legal Services Board has never, and would not, take a stand on
what Government policy or expenditure on legal aid should be. However, the LSB
is able to comment on consumer need, and the extent to which market is
becoming flexible in response to need.
Summary
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Legal aid
– Cost
– Innovation
– Provider and consumer voices
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Understanding consumers
– They are not homogenous
– Even the most vulnerable are often resourceful
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Access to Justice
– Access to justice or access to lawyers?
– Spatial access to lawyers
– Technological impacts
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Developing a strategy for access to justice
– Subsidising production
– Lowering costs
– Liberalisation
How well has legal aid delivered?
Legal aid: too expensive?
• Most expensive in world – 2008 = £38.60 per head.
Country
2006 Legal aid spending per capita (£)
England & Wales
Scotland
Norway
Netherlands
New Zealand*
Sweden
Ireland
Australia
Canada*
Germany
France
Spain
£0.00
£37.74
£31.49
£21.76
£14.17
£11.17
£11.08
£10.07
£9.00
£8.84
£4.57
£3.22
£2.55
£5.00 £10.00 £15.00 £20.00 £25.00 £30.00 £35.00 £40.00
International Comparison of Publicly Funded Legal Services & Justice Systems, University of York,
http://www.justice.gov.uk/downloads/statistics/mojstats/international-legal-aid-comparisons.pdf
Legal aid: How much money would be
enough?
• “Optimal effectiveness in the context of a given substantive
law could be expressed as complete equality of arms – the
assurance that the ultimate result depends only on the
relative legal merits of the opposing positions, unrelated to
the differences which are extraneous to legal strength and
yet as a practical matter affect the assertion and
vindication of legal right. This perfect equality of course is
utopian as we have already implied; the differences
between the two parties can never be completely
eradicated. The question is how far to push toward the
utopian goal and at what cost”.
• (M CAPPELLETTI et al, Access to Justice Volume 1, Part one
– General report 1979)
Legal aid: lack of innovation
• Legal aid decisions focus on budget management made in
the absence of ‘consumer voice’
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Providers sought to speak on ‘behalf of vulnerable consumers’
Tangled own and consumers interests
Contractual terms became more rigid
Reduced scope for genuine innovation e.g. CLS Direct effective
competition to CAB helpline
– Further complexity adding to consumer confusion
• LSC forced to tackle quality issues because of lack of
initiative/ credible assurance from sector
– “There is no quality problem here”
– Quality Mark – ‘costly’ burden imposed by LSC
Legal aid: misaligned incentives
(Eligibility test, NfPs and competition)
• Example of vested interest:
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NfPs general aim to serve everyone
LSC funding came with eligibility test
Contracts provide for a casework and have target hours (inputs)
Casework had to be specialist – therefore elevated status compared
to other caseworkers
– Incentive to spend as long as necessary with single client, not deliver
services to as many clients as possible
– Incentives to characterise cases as complex
• Consequences: LSC identified NfP providers as costly and inefficient
– Undermined value of services provided
– Increase in audit activity, increasing costs to LSC and providers
Consumers are not homogenous advice seeking robots
Consumers respond differently to legal
needs:
(http://research.legalservicesboard.org.uk/news/data-sources/ )
Consumers respond differently to legal
needs: Knowledge & Psychology
• “Action taken depends on characterisation of a problem as legal Overall, whereas respondents said they would seek help from a
lawyer in relation to 44% of problems characterised as legal, the
same was true of only 11% of problems not characterised as such.
For example, when problems concerning home ownership were not
characterised as legal, just 11% of respondents suggested lawyers
as a source of help. This rose to 55% when problems were
characterised as legal”.
• Civil Justice in England and Wales: Report of the 2007 English and
Welsh Civil and Social Justice Survey, LSRC,2008
Consumers respond differently to legal
needs: Cost and perception
• Response to civil and social justice problems shows that: “after
taking account of problem type, for problem types where legal aid
is most available, people eligible for legal aid are significantly more
likely to use lawyers than those on low incomes, but not eligible for
legal aid”
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Income, Lawyers and Access to Justice Factsheet, LSRC 2011
Consumers respond differently to legal
needs: Making a choice to handle alone
(http://research.legalservicesboard.org.uk/news/data-sources/ )
Access to justice?
Define your terms: Access to Justice
means providing consumer choice
• Research into cost and court procedures
• That individual consumers do not use legal representation because they
do not believe they need to.
– Statistically significant relationship between legal representation and
age, work pattern and socio-economic group.
– Those with legal representation are more likely to be women, aged 2544, work (full or part-time) and be from socio-economic groups C2DE.
– Those without legal representation are more likely to be men, aged
65+, have a household income of more than £45,000 and be more
certain that their case will have a positive outcome.
• What's cost got to do with it? The impact of changing court fees on users,
Ministry of Justice 2007
Access to legal services: Importance of
the advice sector
• The role of this sector in providing access to legal services is important to
understand. As one piece of research points out: the specific use of
lawyers in the U.K. surveys is roughly the same as in the U.S. - 27% in
England and Wales, 29% in Scotland versus 26% in the U.S. Where the
substantial difference emerges is in the use of other third-parties.
Moreover, because non-lawyers in the U.K. are authorized to give legal
advice (such as volunteer-staffed Citizens Advice Bureaux or proprietary
legal advice centres), the effective difference is even greater: Americans
received advice from those who are able to give legal advice in only 37% of
cases, compared to 60-65% of U.K. cases. Furthermore, a far smaller
percentage of the U.K. respondents, as compared to U.S. respondents,
“lumped” their problem by doing nothing at all: fewer than 5% versus 29%.
• Higher Demand, Lower Supply? A Comparative Assessment of the Legal
Landscape for Ordinary Americans, Gillian K. Hadfield 2010
Access to legal services: Choosing a
provider - what consumers say
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2011: When they did need to access legal services, many participants said there had been an absence of
choice in legal provider or a dearth of information to support the decision-making process. Due to limited
financial resources, time pressures and a desire to remain local, individual and SME business participants felt
their choices were restricted. As a consequence, there was a high incidence of participants relying on
recommendations from friends, family or business contacts
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2010: In addition to personal recommendation, next most important factor in choosing was logistical reasons
– either because of its proximity to their home or work because it was the closest, because its local to us, or
because the advice centre had convenient opening times
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2009: A few respondents have complained about the opening hours of services. For example a client with an
employment law problem complained that solicitors and NfP agencies only opened during office hours and he
could not get time off work to attend an appointment. Other clients complained that due to their disabilities
they could not attend open door services to queue and because agencies did not answer their phones they
were unable to make an appointment to see someone.
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2004: 25% had gone to an advice source, waited too long to be seen and given up. 23% felt an advice source
had inappropriate opening hours. 15% were put off because an advice source did not provide appointments.
However, 18% were put off because an appointment was provided too far in the future. 14% felt an advice
source was too intimidating. ...Only 10% considered an advice source was too far to travel to.
Developing measures of consumer outcomes for legal services, Opinion Leader research, 2011
Exploring One-Stop Shop Legal Service Delivery in Community Legal Advice Centres LSRC 2010
Availability of advice survey: the findings Legal Action Group 2009
The Advice Needs of Lone Parents, Richard Moorhead, Mark Sefton and Gillian Douglas Cardiff University 2004
Access to legal services: Geography
• Most organisations serve a wide geographical
area
Findings from the Legal Advice Sector Workforce Surveys, Legal Services
Research Centre 2007
Access to legal services: Technology
Access to legal services: Technology
• “There certainly needs to be a repositioning of internet-based advice. It is
entirely logical for advice to be digital by default – the mantra of the UK
government in relation to its own services. Those giving advice on legal
services should aim to provide it self-sufficiently on the net with the
express aim, as in The Netherlands, that people will self-represent. There
are certain implications just from that. It will be difficult to maintain
charges for information so that there should be overt acceptance that
information is being provided for all and for free. Then further support
should be provided as necessary. The first line of support should be through
skype or telephone to someone physically present but not in the room.
Advisers in offices should be the second line of support. That requires a
considerable retooling by the advice and law centre sector.”
• Roger Smith – Internet Advice worthy but dull? 2012
http://lawyerwatch.wordpress.com/2012/03/20/internet-legal-adviceworthy-but-dull-guest-post/
What is the role of the state in
meeting legal need?
What is the role of the state in meeting
legal need: Subsidise production
• Subsidise services so they are accessible:
“Lawyers are charged with the task of assisting
individuals in making use of the law and enforcing their
rights, but violations of those new rights often generate
claims of a small economic value, so that lawyers as a
rule cannot economically handle them. The basic
challenge is to provide machinery to make those rights
effective” (Cappelletti 1978)
• Subsidies risk protecting inefficient firms increasing
overall costs
• Legal aid paid by inputs not outputs has been a subsidy
What is the role of the state in
meeting legal need: Subsidise
production
– “Access to justice through legal aid is not an unlimited free
good. Legal services procured through legal aid are
delivered with finite resources which need to be managed
within the government’s three year spending regime and
judged alongside other priority areas, such as health and
education. The challenge is to ensure access to justice
within available resources, and to make the best possible
use of the budget so that it supports the aims of the justice
system”.
• Lord Carters Review of Legal Aid Procurement 2006,
http://www.lawcentres.org.uk/uploads/Legal_Aid_A_marketbased_approach_to_reform_Summary.pdf
What is the role of the state in
meeting legal need: Reduce costs
• Access to Justice has five waves:
1.
2.
3.
4.
5.
Legal aid – funding for individuals for legal advice and representation
before the courts, with legal aid funding provided for over two million
consumers in 2011/12.
Public interest law - E.g. Equalities & Human Rights Commission, taking
legal action against those who discriminate on behalf of society as whole,
or Citizens Advice campaigning on behalf of consumers.
Informal justice such as alternative dispute resolution
Competition policy – used to ensure markets operate effectively minimising
the occurrence of legal disputes, through organisations like the Office of
Fair Trading and the Competition Commission.
Requiring organisations to create access to justice mechanisms for their
customers, employees, and other stakeholders – E.g consumer dispute
resolution services such as eBay.
• All focus on making disputes cheaper/quicker to resolve
• Cheaper system = greater access
What is the role of the state in
meeting legal need: Regulation
• Access to legal services and issues of quality:
• “In demotic language, markets where one can expect to be
mugged tend to deter participation, even though muggers
may be in a small minority. Alternatively, it can be noted that
although markets for ‘pigs in pokes’ may have existed in
economic history, the sizes of those markets were highly
limited. In such circumstances, and as the market for lemons
example shows, lack of confidence in the market may depress
the prices that can be achieved for high quality supplies, as
well as reducing the demand for legal services overall”
• (Understanding the economic rationale for legal services
regulation, Regulatory Policy Institute 2010)
What is the role of the state in
meeting legal need: Regulation
• Consumers are at risk of market failure from information
asymmetries
• Reputation is vital in the absence of other information – but
individual consumers are infrequent users of services
• “Ideally what is wanted are arrangements that can effectively
reduce the risks of consumers receiving a lower quality service
than they had reasonably expected, without imposing unduly
large information costs on suppliers or customers”.
(Understanding the economic rationale for legal services
regulation, Regulatory Policy Institute 2010)
• Lack of information best addressed through competition not
prescription by vested interests
What is the role of the state in
meeting legal need: Regulation
• Liberalisation to make market work effectively for consumers
• Legal services is a market with many segments (A framework to
monitor the legal services sector- Oxera 2011)
• “The LSB’s priority would be to ensure legal services become more
affordable (and so accessible), whilst ensuring consumer confidence
in the quality of legal services. In public policy terms, the idea is
win-win: consumer trust and affordability can both increase the size
of legal service markets. It is also reasonably clear in its trajectory,
being deregulatory in approach: the case for regulation has to be
made with evidence not the other way round. The central idea is
that regulators need to be sure that the markets the govern
stimulate competition on quality rather than just price” (Moorhead
2011)
What role can Alternative Business Structures play
in providing social welfare law advice:
• ABS impacts the theory:
• “legal services become more affordable (and so accessible), whilst ensuring
consumer confidence in the quality of legal services. In public policy terms, the
idea is win-win: consumer trust and affordability can both increase the size of
legal service markets”.
(Legal Services and the market for lemons - Moorhead 2010)
• “There is a large fragmented market of series of markets with identifiable over
capacity and inefficiency. The reserved, unregulated consumer services will
probably be most attractive ..... though the £2bn legal aid market could also be
tempting. Capital could be made available for investment in expansion or IT
consolidation. There are economies of scale to be derived from investment in
and the restructuring of commoditised or bulk services. They are in a position
to expend and exploit their brands in ways in which the fragmented high street
is not” (After Clementi -The impending legal landscape, Mayson 2006)
Finally, some challenges...
1. Be radical and forward looking
2. Recognise and challenge existing vested interests
3. Don't start with service design – start with consumer
need
4. Don’t prescribe answers – create an environment
where legal providers innovate and compete for
consumers by driving value (quality, price, access)
5. Help consumers choose and use legal services – so
that they punish poor delivery and reward excellence
6. Let consumers voices rule – no paternalism
7. Use evidence not anecdote
Further information sources the Low
Commission may wish to consider
Quality of legal services
• For a summary of available information see LSB research webpages:
http://research.legalservicesboard.org.uk/analysis/demand/quality-of-advice/
• For an assessment of how quality can be considered from a consumer
perspective: Quality in Legal Services, Chapter 3 What constitutes quality for
consumers
http://www.legalservicesconsumerpanel.org.uk/publications/research_and_rep
orts/documents/VanillaResearch_ConsumerResearch_QualityinLegalServices.pdf
• For issues with traditional legal services ‘quality marks’: Voluntary quality
schemes in legal services
• http://www.legalservicesconsumerpanel.org.uk/ourwork/quality_assurance/do
cuments/FinalReport_VQS.pdf
• For an views on how quality might be regulated in legal services: Approaches to
Quality
• http://www.legalservicesboard.org.uk/news_publications/latest_news/pdf/201
20913_summary_responses_recd_lsb_response_approaches_quality_final.pdf
Spatial distribution of need/demand
for social welfare law advice
• For a summary of available information see LSB research webpages:
http://research.legalservicesboard.org.uk/analysis/supply/static-marketanalysis/distribution-of-services/
• Data on geographical supply of legal services : Data Platform 2010
http://research.legalservicesboard.org.uk/news/data-sources/
• Request to the Legal Services Commission:
Indicative Spend data relating to Social Welfare Law (SWL) and Family
procurement areas”, Legal Services Commission, 2009 (No longer on their
website)
• 2009 perspective on SWL and legal aid:
• http://www.ilagnet.org/jscripts/tiny_mce/plugins/filemanager/files/Wellingt
on_2009/Powerpoints/Community_legal_services_-_CP.pdf