Authors:Louise Christian (Louise Christian is the founder and former senior partner at Christian Khan, and is a consultant solicitor. She writes in a personal capacity.)
Created:2017-10-31
Last updated:2023-09-18
“The last 40 years have seen access to justice expanding and then sadly contracting again.”
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Marc Bloomfield
This is my last column for Legal Action, so I should start by saying how much I’ve enjoyed writing them over the last three years. I started reading Legal Action in about 1976, when I was a trainee solicitor in a City firm, and it inspired me to go first into a Law Centre and then into legal aid private practice.
So, I thought I would write about how things have changed in the last 40 years. Access to justice expanded and then sadly contracted again. When I started doing legal aid work at the end of the seventies it had been available since 1949, but was still administered by the Law Society and there were few practitioners doing it. However, with the creation of the Legal Aid Board in 1988 there was a rapid expansion. Cases against the police and the local and national state – judicial reviews – which would not have been contemplated before, became commonplace in the late 1980s, as did the high street legal aid firm. But the Legal Aid Board provided little scrutiny and there was undoubtedly abuse.
However, inquests represented one kind of case where legal aid was unavailable. I first represented a bereaved family in a week-long inquest in 1978 after a 16-year-old boy in a young offender institution set fire to his mattress and died. In 1995, I was instructed to act for all 51 of the bereaved families in a month-long inquest into the Marchioness disaster, but there was no legal aid. After the families threatened to do the representation themselves and make the inquest last a year, the lord chancellor announced a special grant to fund their legal team. Following that, and the passing of the Human Rights Act in 1998, legal aid for inquests ‘in exceptional circumstances’ was introduced. Legal aid for article 2 inquests has survived even LASPO, though it is getting ever more difficult to secure it.
The biggest change came with the setting up of the Legal Services Commission in 1999. This brought far more regulation and oversight, some welcome and necessary, and some less so. Legal aid franchises in specific areas of law, started by the Legal Aid Board, were changed to contracts with specified matter starts and this cemented what had already started to happen, which was the degree to which solicitors specialised. I have written a previous column about my fears that this is not altogether a good idea. The plight of the traumatised survivors of the Grenfell Tower tragedy, forced to go to perhaps three different solicitors for their housing, personal injury and inquiry needs, illustrates this.
More egregiously, the LSC made increasing efforts to micromanage and bureaucratise the system, though it never quite succeeded in rebranding legal aid as ‘public funding’. In 2004, my firm faced a demand to repay £400,000 to the LSC after an analysis of errors in a small sample of legal help forms was applied to all of them. We were saved from financial ruin when I won one of the first ever Legal Aid Lawyer of the Year awards and the LSC withdrew the demand. For me, however, the episode created bad feeling and I was unsurprised by the creation of the Legal Aid Agency, with the consequential loss of independence from government, and the cuts and passing of LASPO.
In 1999, the so-called Access to Justice Act removed personal injury cases from legal aid and allowed conditional fees. By this time, the rule banning solicitors from advertising had been dropped. Now, we not only have bad-taste advertising but ambulance-chasing and blatant encouragement of fraud in, for example, holiday sickness claims. This degradation of the profession is shameful.
So, what was my favourite victory? I think it has to be getting an injunction against the home secretary by telephone from a High Court judge on Christmas Day 1992. The order prevented a Jamaican who was visiting family from being unlawfully removed and he eventually got damages for the detention. Alas, I wonder if it would happen now.
Legal Action would like to thank Louise for her valuable contribution to the magazine over the last few years – her columns will be much missed.