Although I am billed as the ‘President of the Law Society’, my real secret identity is a very, very long-standing supporter of LAG. So, I am very honoured to be asked to give the speech this evening, and I do support everything that has been said about how we all need to support the Legal Action Group in efforts to support access to justice.

My talk is ‘Where do we go from here?’ and I suppose the first thing to identify is who is the ‘we’ and where is the ‘here’? Seeing as this is a LAG lecture, I went to the LAG website and have picked out some of the things that they say about the ‘we’. Their mission is to improve ‘access to justice, particularly for the vulnerable and socially excluded’. LAG’s primary interest is promoting ‘access to justice for the users and potential users of legal services’. It promotes ‘equal access to justice as a fundamental, democratic right’. ‘Justice demands both fairness of process and fairness of result’. It seeks to ‘remove barriers to fair and effective justice, particularly for those who have difficulty enforcing their rights or defending their interests’.

So, anyone who shares those aims and beliefs, and I assume that you all do, is one of the ‘we’, and the ‘here’ that we are having to move on from is the current state of access to justice. My professional experience means that I can speak with most confidence about how solicitors might answer this question, but I hope that what I say may resonate with others as well, and I apologise in advance for being exclusive if I use the word ‘solicitor’ when what I mean is ‘lawyer’: I include all lawyers.

In November I was asked to address the Judges’ Council on the priorities, opportunities and challenges facing the solicitors’ profession, which is not a very easy thing to generalise about when we are such a diverse profession, not only in the variety of our protected characteristics, but also in many other ways as well. Nonetheless, I felt that I could distill the priorities of the profession down to little sound bites, and I felt that all of the profession has priorities to be professional, to remain profitable and to support the rule of law.

When I talk about profitability, I am not just talking about profitability in private practice; I am also talking about all the economic and financial circumstances that allow lawyers to earn a living as lawyers. So, I am including the many in-house lawyers who work in the third sector, in the public sector, helping people get access to justice. I first of all want to talk about profitability because unprofitability leads to unemployment and opportunities for professionalism and for supporting the rule of law are rather few and far between when you are unemployed, although not entirely absent.

So, how do those of us who have been providing access to justice for the vulnerable and the socially excluded, helping them to enforce their rights or defend their interests, stay in business when legal aid, the main payment system for achieving these ends, is removed? Well, as in any business, when the market changes we need to look for new markets. We need to review and refresh our services. We need to cut our overheads. We need to market ourselves differently. This is nothing new. Solicitors have been doing this for as long as there have been solicitors, which is why we are such a successful profession; we can adapt and we will adapt, and none of this needs to lead to lowering professional standards, not least because legal aid lawyers are highly skilled at doing good work in difficult circumstances at very low cost. So, that immediately gives us an edge.

But although we are very used to adapting to the requirements of our paymasters at the Legal Services Commission (LSC), we are not so used, in many cases, to the sort of business planning and marketing that our successful colleagues in other areas take for granted. But we can do it if we have to – and we do have to – and adapting to these new ways that we have got to think about our business is going to be so much more fun, so much more interesting than yet another compulsory reorganisation at the behest of the LSC. It is something that we should look forward to.

As an office holder at the Law Society, I have travelled round the country meeting solicitors in all kinds of firms and organisations, including firms that have done legal aid in the past and have come out of legal aid. Many of them regret not being able to offer a legal aid service to clients any more, but none of them regret the liberation from the endless bureaucracy, the low pay, and the general, all-round hassle of doing legal aid. I do not mean the hassle with the clients, I mean the rest of the hassle that everybody knows about.

So, in thinking about how we might go forward, we have to think about who else we could be offering our services to. We know that even without the cuts, there are many people who can neither apply for legal aid nor fund full service advice and representation themselves, and this group is going to grow as austerity gets a tighter grip on us: as local authorities are unable to comply with their obligations; as hospitals become more overcrowded and less safe; as employment and underemployment put increasing pressure on families; and as the benefit cap results in the dispersal of families away from work, schools and local networks. If we can find a way of offering these people a service which helps them and keeps us in business, then everybody benefits.

When I became president back in July, I launched my ‘good ideas for hard times’ online debate because I have always believed that solicitors are willing to help each other when push comes to shove, and indeed it turned out to be so. I was inviting members of the profession to put forward the ways in which they were coping with difficult times to see whether there would be ideas here that would help other people, and the response was fantastic. We got a wonderful response, not just looking at responding to the cuts in legal aid, but also the changes to civil cost funding and the sort of general response to dealing with (is it a recession at the moment or just a downturn?). Well, whatever it is, dealing with the situation that we are all living in.

These contributions from the profession have fed into the work that the Law Society is doing through its Access to Justice Committee and its legal aid and policy teams to provide information and advice to our members. We will shortly be rolling this out, providing people with opportunities to look at the ideas that have worked for other people so that they can think about using those ideas for themselves. It is really important if you want to go on being professional that you are businesslike: there is no discontinuity between the two. It is not the case that we are just a profession and if we think we are a business we are being unprofessional. A truly professional person will be businesslike because then they can offer the best service they possibly can to their clients.

We are going to be producing practice notes on unbundling (and for those of you who do not know what unbundling is, I am not going to go into now, ask a friend!), confidentiality issues if you want to share back-office functions and the regulatory implications of offering online services. We are going to be working with firms to help them consider new ways of pricing. We are looking at ways in which technology can assist firms and clients to access justice, and we are doing this because the speed of development in technology is such that things that were unimaginable ten years ago are now commonplace and, for the most part, very accessible by most of the population.

This does not mean to say that we are leaving social welfare law behind, but if you want to stick to social welfare law and you have no real assets other than your reputation and the skill and enthusiasm of your staff, which is where a lot of legal aid firms are, you might want to think about becoming a community interest company, which is now possible because of the alternative business structure (ABS) regime. It is a form of ABS that offers real opportunities because it allows you to seek grants, philanthropic funding and so on, and may allow you to continue offering the services that you want to offer even though legal aid has been withdrawn.

At the Law Society, we care about all our members, but I have to say nobody cares about your survival as much as you do. We will offer you the tools, we will do everything we possibly can to help, but in the end it is up to you to build your own escape route; you know what will work best for you, we will try and help you. The survival of lawyers and their organisations is a matter for them and we will try and help. I have no doubt that those firms in the course of surviving will continue to offer services to vulnerable, disadvantaged and socially excluded individuals one way or another. But many people will not get the help that they need and who is responsible for ensuring their access to justice?

Here I would like to just mention the three sorts of justice that I think we might be thinking about or we could think about, and I think it is very important to keep them all separate. First of all, social justice, that which each of us thinks is necessary to make up a fair society. Achieving social justice is all our responsibility mainly through politics and voting, and preferably as much as possible of both. Then there are the justice systems: the civil justice system, the family justice system, the criminal justice system, and the Ministry of Justice (MoJ) is responsible for ensuring that everyone has access to these justice systems. On its website the MoJ claims to provide ‘fair and simple routes to civil and family justice’, and I think it is true that if DIY access to the courts is fair and simple, it is certainly providing that. However, I think that most of us know that complex DIY requires expertise by itself, and in this case the cost of putting right inexpert attempts to get justice through the justice system is one that we are all going to pay for for many years to come.

Which leads to a third form of justice, the one that lies at the heart of the rule of law: that individuals could enforce and protect their personal rights and liberties, if necessary through access to the courts but not necessarily. If there are other ways, they are not through access to the courts and responsibility for access to this sort of justice, a justice of laws properly and fairly applied, lies with the state. It is an integral part of the rule of law which is the state’s responsibility to uphold and promote.

Legal aid is not the only way of ensuring that people are able to enforce the personal rights and liberties granted to them by the laws of the land, but it has certainly been an effective way of doing so for some people. If the government chooses to reduce the scope of legal aid, it needs to be sure that other methods exist so that people without money to pay privately for lawyers can still enforce and protect their personal rights and liberties. Has it done so? Only it seems to think so.

When Lord McNally says that a disabled child should not need a lifetime of legal help and should not need a lawyer in order to get his or her special educational needs met, I completely agree. If the law says that a disabled child has certain personal rights and liberties, including the right to a suitable education, I think we would all be completely delighted if suitable provision was made quickly, easily and in accordance with both the spirit and the letter of the law. Does this happen? Apparently not if we listen to the stories of people with disabilities or the parents of disabled children. In the absence of effective alternative methods, the need for lawyers to help disabled children obtain access to rights and liberties enshrined in law will continue, and if the government prevents poor families from getting legal help when nothing else is available, I believe that it is failing in its duty to uphold the rule of law.

When the government tries to bring in regulations that say that legal aid for judicial review of public bodies should not be granted until all other administrative appeals and alternative processes available to challenge that alleged wrong have been exhausted, I am fine with that so long as the other remedies will be so quick, so easy and so rigorous that going to court will become unnecessary. But as we all know, many judicial reviews are extremely time sensitive; for instance, challenging the prospect of being made homeless or the failure to make provision of essential community services for people with disabilities. We all know that complaints processes followed by ombudsman procedures if the complaint does not come to a satisfactory conclusion can take months or even years, which would not only exacerbate any wrong done to the applicant, but also put judicial review completely out of time and out of reach of many people.

The government claims that it never intended this particular test to have this effect, but it still took a debate in the House of Lords last night [on 3 December 2012] to get it to agree to amend the regulations to bring in a reasonable test, as is the case under the existing regulations. The Legal Aid Practitioners Group (LAPG), Young Legal Aid Lawyers and Law Society staff lobbied hard for this result, and I would like to pay tribute to them for their tireless efforts, particularly Nicola Macintosh [LAPG’s co-chairperson], who is sitting there and who has been completely fantastic.

The government may claim not to have intended the apparent restriction on legal aid mentioned above, but it was completely upfront about its failure to honour a commitment it made earlier to allow legal aid for welfare benefit appellants, often disabled people, in point of law cases at First-tier tribunal level. Lord Bach [former parliamentary under secretary of state at the MoJ and former Opposition spokesperson for justice], sitting at the back, to whom I would also like to pay tribute, said that the lack of legal aid would deny claimants a fair hearing in point of law cases, and he was so obviously right that the Lords rejected the regulations, which is only the third time that secondary legislation has been voted down in the Lords in the last 44 years.

What is the government playing at? Did it not know that it was jeopardising the rule of law by seeking to put itself and other public bodies beyond effective challenge? Does it care?

This little episode: the debates, the issues in the Lords last night illustrate, I think, two important matters. Firstly, that it is for the government to ensure that effective remedy is available so that people can enforce the personal rights and liberties granted to them by the law of the land. Secondly, that lawyers will be watching them very closely to measure their performance on this essential role of the state and will challenge any failings.

The Law Society and other bodies, and including, obviously, the Low Commission that we are going to be hearing about later, are very much on the case of monitoring the effect of the cuts on the rule of law. We know, for instance, that the government’s approach to the trigger evidence to fund domestic violence cases is flawed, as is their intention to bring in a means test with capital assets, including the equity in their home, of those on passporting benefits. These and other policy decisions will deny people the opportunity to enforce their personal rights and liberties, and we will be gathering evidence in the public domain to allow the public to decide whether the government is supporting or undermining the rule of law.

In case the government is looking for a quick and easy yardstick as to how to measure its performance on upholding the rule of law, I suggest that the friends-and-family test that is to be introduced into the NHS, where patients are asked if they would recommend the hospital they have been in to their friends and families, would also apply in this case.

So, in the context of the rule of law, I would invite members of the government to ask themselves what advice they would give to a friend of theirs or a member of their family if they found themselves needing to enforce one of the rights or liberties granted to them by the law of the land. If the advice was ‘talk to a lawyer’, what route to this would they recommend if their friend or family member had no money for this, which I do realise is an imaginative stretch for many of them. But then politicians have very good imaginations, and I am sure lots of them have imaginary friends as well. If the only answer that they come up with is one that they would not wish to see their friend or family member subject to, they can be fairly sure that they are failing to uphold the rule of law because they are allowing one law for the rich and another for the poor.

But, of course, the profession will not just be monitoring, it will also be acting. Pro bono is a proud tradition in our profession, and I have no doubt that it will rise to the occasion this time as it has done so often in the past. I do believe that, on this occasion, most of the effort is going to have to come from those lawyers who can afford to put in the time and effort, of whom there are still very many. Legal aid lawyers, whether in private practice or in house, have been doing the heavy lifting for years and at the moment they need to focus on survival. So, the creativity, ingenuity, goodwill and expertise of the rest of the profession needs to come to the fore right now.

Some of the initiatives that I am aware of and the Law Society is aware of include:

It is not just the lawyers who are stepping up, many non-legal staff of law firms contribute by volunteering through schemes such as the personal support unit or using their own professional expertise – marketing, IT, communications, human resources advice, etc – on a pro bono basis to support access to justice projects.

Something that I would like our largest firms to consider is whether they might think about funding individual specialists to preserve expertise in areas where legal aid is being withdrawn and there is no private market. A prime example here is welfare benefits. Legal aid for welfare benefits cases is being cut just as the Universal Credit is being introduced: the pilot for it starts in April. We need people with the expertise to challenge decisions where the credit does not meet welfare standards, and to ensure that people entitled to it are not denied the benefit, and to provide advice to those in difficulty. We need expertise to be preserved and developed so that it can be made available to volunteers at citizens advice bureaux or to MPs’ surgery staff who will find themselves at the sharp end of this once legal aid has gone. How are they going to do this? Who is going to pay for it? All offers of help gratefully received, but that is in addition to helping LAG, not instead of.

We are also working very hard with philanthropic organisations which are willing to support specific access to justice projects, and we will continue to try and develop this area of work. So, one way or another, we will do our best to help: that is what we do. Never forgetting that what we do can never be enough – it cannot replace legal aid – and that the government remains responsible for any failure of the rule of law.

So, coming back to my initial question: where do we go from here? Where we go is forward: determined, focused, skilful and supportive of each other, the people we serve and the rule of law.