Can digital defend legal aid?
Roger Smith, former director of both LAG and JUSTICE, discusses whether or not, post implementation of the Legal Aid, Sentencing and Punishment of Offenders (LASPO) Act 2012, NHS Direct would be an appropriate model for a legal advice and information service.
What happens after the LASPO ct cuts? Soon it will be as if comprehensive, albeit means-tested, legal advice provision had never been. A rump of the advice agencies, Law Centres® and poverty law-orientated solicitors’ practices will limp on, driven by the ideals that led to LAG’s founding in the early 1970s; however, government-subsidised legal advice outside of crime is likely to be squeezed increasingly as further cuts follow the breach of the principle of a universal, if means-tested, scheme. Should we just accept this or is there any alternative? Where do we find something persuasive, effective and with a chance of political support? Could not the digital revolution through which we pass provide something: perhaps along the lines of NHS Direct?
Certainly, no alternative presented itself to Kenneth Clarke the Conservative Lord Chancellor who introduced the cuts or to his successor Chris Grayling. This is, perhaps, little surprise: Cameron conservatives are a long way from the Heath ministers that introduced the green form legal advice scheme in 1972; moreover, it is somewhat of an irony that the cuts should have been marshalled through the House of Lords by Tom McNally, a peer from the Liberal Democrat party, which historically was the strongest supporter of the rule of law, human rights and fairness (O tempora, o mores).
Government digital strategy
In any event, never mind about four decades being a long time in politics: take fashions on a much shorter time frame. A rereading of the Ministry of Justice’s (MoJ’s) literature in support of the LASPO Act is to enter a time warp. How could it be that such papers were written without a trace of reference to the all-singing digital strategy the coalition government was to launch in December 2012?
1Government digital strategy, Cabinet Office, November 2012, available at: http://publications.cabinetoffice.gov.uk/digital/strategy/government-digital-strategy.pdf. This might, of course, be because said strategy was claptrap designed cynically to cover further cuts. Nevertheless, the MoJ, now free of its groundbreaking work on the LASPO Act, has signed up for its part of a messianic programme for ‘digitally redesigning all’ its services, prioritising those ‘handling over 100,000 transactions each year’ (page 2). This policy of ‘digital by default’ will put ‘users at the centre’ (page 2). There is going to be transformed ‘digital leadership’, ‘exemplar digital services’ and ‘service managers often called product managers in the commercial world)’ (page 21).
The government proclaimed a strategy to deliver ‘[d]igital services so good that all who can use them, prefer to use them’ (page 24). It is odd, therefore, that the government’s interest in such services seems somewhat attenuated and kicks in only when savings can be smelt. Most notably, and in the health field, the government has stripped almost to the bone, NHS Direct, one of its most effective and innovative digital projects. Yet, this health advice and information service provides a model worth looking at. It raises the issue of how one can use integrated web and telephone services to supplement and, to some extent, replace face-to-face professional services.
Let me make a personal interjection. I am a late convert to the use of remote and virtual advice and assistance. I qualified as a solicitor 40 years ago this November. I know, deep in my bones, that you cannot beat face-to-face interaction between lawyer and client: you need to look a client in the eyes and s/he needs to look into yours. Except that, in particular, three people in three organisations have persuaded me differently, and I now think that technology has moved us on. The first person was Richard Cohen, chairperson and head of institutional sales of a firm called Epoq Legal Ltd. It supplies packages for bulk legal providers which allow legal document assembly (it could, in principle, be any document) through the use of software shared by the client and a remote lawyer (in Epoq’s case, located in north London). The second person was Pam Kenworthy, head of telephone advice services and partner at Howells Solicitors in Sheffield. The third person was Nick Chapman, chief executive of NHS Direct since April 2009.
We should be clear about the proposition. It is that integrated use of the web and telephony provides a way of delivering medical or legal advice which is, in a very large range of cases, as good as face-to-face delivery. Telephone services can, of course, be set up on various models. I am not talking about ‘dead-end’ telephone services that go no further than a scripted lay adviser: the better role of telephony is to provide ‘front-end’ services, which can lead on to ‘full service representation’ as the Americans would put it. Nor in relation to the web am I talking about some digitalised leaflet. I am talking about re-engineered information provision. Nick Chapman is very clear about the process. He inherited what he called ‘an encyclopaedia in the sky’, which he reorientated towards the user; this is just the sort of thing that in theory the government is on about. Go on to NHS Direct with your favourite health complaint and check it out.
One of NHS Direct’s problems was its implied threat to existing services. It had the Ambulance Service, GP out-of-hours’ providers and accident and emergency departments at best sceptical about its merits, and with a real financial incentive to maintain the face-to-face flow of patients rather than see telephone and web contacts increase. The real benefit would have come if NHS Direct could have delivered more of the GP out-of-hours’ provision and some of the in-hours’ advice. Instead, ministers have limited it still further, agreeing reluctantly to keep the web content and split the telephone service into regional contestable contracts (akin to those which operate for legal advice). Some of these NHS Direct has won, which will do something to preserve it; however, much of its value has been the integration of the experience of a high volume of calls with information on its website. NHS Direct has been dealing with around 1m patients a month on the website and about 400,000 on the telephone. The service can make a credible case for paying for itself and allowing savings elsewhere.
One of the interesting findings of NHS Direct and of telephone advice services like that run by Pam Kenworthy is that, empirically, a wide range of clients do use them. For example, translators can be incorporated within conference calls (this seems to work better than in the courts) and those people with mental health problems may find the telephone easier than face-to-face advice, with advantages such as not having to leave the house. There is a digital divide, but integrated website, telephone and residual face-to-face provision would seem increasingly likely to address the barriers to access at least as much as conventional provision.
NHS Direct: a model for law?
The essence of the NHS is its universality. This was the original promise of the civil legal aid scheme (with the addition of means testing and provisions on the strength of a case). Could the reduction of costs promised by new technology make NHS Direct a model for law? This would mean one central telephone advice service for civil matters, albeit that it might be divided into regional units, which would be an easy evolution from the present position. There would be one national website, which would be independent of government (an escape from the dark empire that is gov.uk). (A neat touch developed by NHS Direct is that it integrates with other provision, both leading you to other websites and allowing providers to embed it into their own sites.) There would be face-to-face (but referral only) provision contracted around the country in major urban centres.
What might we call such a network of civil provision? Well, blow me down, it could be the Community Legal Service – though the name does not really matter. A strong brand and identity would be important. It would also be necessary for all elements of the service to interrelate and interact. We are talking about a collaborative, co-operative enterprise of a kind rather different from the current model of commercial atomisation. This might appeal to a future Labour government.
Conclusion
NHS Direct costs just over £113m a year. I bet that for half of this amount, government could do something worthwhile which would allow the reintroduction of legal advice in the areas that have been cut. What coalition politicians are going to realise fairly soon is that their cuts will neither be uncontested after implementation nor be without consequences. Either we have been wrong about the value of civil legal aid or women, who have been targeted disproportionately for savings, are going to express their frustration – hopefully in MPs’ surgeries.
The advantage of such a comprehensive model is that it would allow us to advance the principle of universal, if means-tested, provision in a bold, new way. Existing cuts to provision mean that the institutional resistance that conspired to scupper NHS Direct is weakened in the case of legal aid. We need some form of credible delivery model that provides a vision we can get behind. No doubt, if it worked, the red-toothed Tories (unless the ‘one nationers’ mount a comeback) would try to destroy it next time they got in.
However, once the full impact of the cuts becomes clear, the wisdom of Mervyn King, governor of the Bank of England, may be acknowledged. In 2010, he is reported to have predicted that post-election austerity measures would mean that whoever won the vote would be ‘out of power for a … generation’. We need to seize this moment to uphold the initial ideals of the legal aid movement. Let’s go for bold.