ACCESS TO
JUSTICE FOR
DISADVANTAGED
COMMUNITIES
Marjorie Mayo • Gerald Koessl
Matthew Scott • Imogen Slater
ACCESS TO JUSTICE FOR
DISADVANTAGED COMMUNITIES
Marjorie Mayo, Gerald Koessl, Matthew Scott
and Imogen Slater
First published in Great Britain in 2014 by
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for Justice for All.
Contents
Acknowledgements
Abbreviations and glossary
Introduction: accessing social justice in disadvantaged communities
one
two
three
four
five
six
seven
eight
nine
Social justice and the welfare state
Concepts of justice and access to justice
Ethos and values
Challenges and dilemmas
Public service modernisation, restructuring and recommodification
Conflict and competition versus collaboration and planning
Public service modernisation and time
Alienation and demoralisation, or continuing labours of love?
Access to social justice for disadvantaged communities: value and
values
vi
vii
1
9
19
35
51
61
75
93
103
117
Appendix 1: Research methodology and questionnaire
Appendix 2: Law Centres included
Appendix 3: Topic guides for semi-structured interviews
131
145
147
References
Index
151
159
v
Access to justice for disadvantaged communities
Acknowledgements
We would like to express our warmest appreciation and thanks to all those who
have participated in the research, giving so generously of their time despite all
the other pressures on them over this period. In particular we should also like
to thank our Advisory Committee members, who were an invaluable source of
advice and support throughout the project. The Law Centres Federation (now
the Law Centres Network) was a similarly invaluable source of advice. Special
thanks are due to those who very kindly gave detailed feedback on earlier drafts
of the research report and to those who very kindly gave detailed comments on
the final version for this book.
We should also like to acknowledge the administrative support that we have
received from Goldsmiths, University of London throughout the research period
and subsequently as we revised the research report for wider publication.
Warmest appreciation goes to colleagues at Policy Press and to the anonymous
reader whose feedback has been extremely helpful. Any remaining errors and
shortcomings are, of course, down to us.
Finally, and most importantly, we would like to thank the Leverhulme Trust for
its unfailing support during the course of the research.
vi
Abbreviations and glossary
Best Value
Introduced in England and Wales in 1999 by the Labour government,
a policy to improve local services in terms of both quality and cost,
seeking continuous improvement, and combining economy, efficiency and
effectiveness.
CAB
Citizens Advice Bureau
Carter reforms
Reforms proposed by Lord Carter (2006) and implemented in 2007,
focusing on changes to legal aid as explained in Chapter Two.
CLAC
Community Legal Advice Centre
CLAN
Community Legal Advice Network
commissioning
The process by which government departments and local authorities
secure their services, usually through a legal procurement process.
commodification
The assignment of economic value to something not previously
considered in economic terms.
decommodification
In this context, the protection of citizens from market forces (associated
with welfare state services provided on the basis of need rather than the
ability to pay).
de-professionalisation
A ‘condition’ in which professional autonomy and scope for the exercise
of judgement – among other defining characteristics of a professional –
become undermined.
fixed fee
A fixed price for each piece of work, in contrast to legal charges accruing
according to time spent.
LASPO
Legal Aid, Sentencing and Punishment of Offenders Act (2012)
Law Society
The representative body for solicitors in England and Wales.
LCF
Law Centres Federation (subsequently Law Centres Network)
legal aid
Government funding to help with the costs of legal advice for people who
cannot afford it.
LSC
Legal Services Commission
Management Committee
The committee with responsibility for providing strategic direction
to Law Centres (usually made up of some combination of community
representatives and those with relevant professional skills). Management
Committee members may also be trustees (see below), although they may
not all have the specific responsibilities associated with being a trustee.
modernisation
The government’s strategy to reform and update public services.
NEF
New Economics Foundation
neoliberalism
A contemporary political philosophy advocating economic liberalisation,
open markets, and emphasising the role of the private sector.
New Right
A strand of Conservatism developed in the UK in the early 1980s, also
associated with Thatcherism (Margaret Thatcher).
NHS
National Health Service
New Public Management
An approach prominent since the 1980s, based on the premise that
market-oriented management of the public sector will lead to greater cost
efficiency and improved service delivery.
vii
Access to justice for disadvantaged communities
public legal education
Training that equips people with knowledge and skills to identify and
tackle law-related problems.
pro bono
Pro bono publico translates from Latin as ‘for the public good’: in the
legal profession this term refers to lawyers providing services free, on a
voluntary basis, to those who are unable to afford them.
QC
Queen’s Counsel, a lawyer appointed by letters patent to be one of her
Majesty’s Counsel.
recommodification
Returning to the private market the provision of goods or services that
had previously been provided publicly (eg via privatisation)
stakeholder
A person, group or organisation that has a direct or indirect stake in an
organisation, partnership or similar endeavour.
trades council
An association of labour unions or branches in a given geographical area.
trustees
The name that charity law uses to define the group of people who have
ultimate responsibility for an organisation that is a recognised charity:
they may also be called the Management Committee, Directors, Executive
Committee and so on.
Unified Contract
The Unified Contract for civil legal aid providers (2007) replaced the
General Civil Contract and Family Mediation Contract. It brought
conditions for not-for-profit advisors into line with those of solicitors who
carried out civil legal aid work.
VCO
voluntary and community organisation
viii
Introduction: accessing social justice in
disadvantaged communities
This book explores the dilemmas being faced by professionals and volunteers
who are aiming to provide access to justice for all and to promote social justice
agendas in increasingly challenging contexts. Public service modernisation1 has
been accompanied by increasing marketisation and massive public expenditure
cuts, with escalating effects in terms of the growth of social inequalities. As the
following chapters illustrate, Law Centres have provided a lens through which
to examine the implications of these wider policies, as increasing marketisation
has been impacting upon staff and volunteers working to promote social justice
in disadvantaged communities.
Given their underpinning ethos and missions, Law Centres offer particular
insights into the tensions inherent in increasing marketisation, against a background
of public service modernisation agendas more generally.Although they have been
valuable as a means of exploring these issues, Law Centres have been relatively
under-researched in the past, and so they have provided a relatively fresh context
within which to investigate experiences of these wider issues and potential
tensions.
Social justice has been a central public policy theme, from the discussions that
led up to the development of post-war welfare state reforms in Britain through to
more recent debates on social welfare and social justice in contemporary Britain.
‘Everybody is in favour of social justice’, it has been argued, even if ‘what they
mean by social justice, the priority they accord to it, relative to other objectives,
and the public policies they believe follow from it, vary widely’ (Burchardt and
Craig, 2008, p 1). ‘Although few say they agree with injustice’, as Dorling points
out, ‘nevertheless we live in an unjust world’ (Dorling, 2010, p 1).
The welfare state has itself been the subject of continuing debate since that
time, and particularly so in recent years as successive governments have developed
strategies to promote public service reforms, significantly changing the respective
roles to be played by the state, civil society and the private market. Increasing the
use of market mechanisms has been presented as a central plank of public service
modernisation. This has not only been advocated as a means of ensuring value
for money in times of public expenditure constraint (although that clearly has
been a central concern); the increased use of market mechanisms has, in addition,
been presented as a mechanism for promoting user choice, putting the consumer
rather than the producers of welfare in the driving seat.
According to a range of critics, this strategy would, it was argued, address
concerns with the rigidities and unresponsiveness of state bureaucracies and the
manifestations of professional self-interest and paternalistic control that were
distorting public welfare provision. Privatisation was, according to former Prime
Minister Margaret Thatcher, at ‘the centre of reclaiming territory for freedom’,
1
Access to justice for disadvantaged communities
a means by which ‘the state’s power is reduced and the power of the people
enhanced’ (Thatcher, 1993, p 676). For New Labour, the increasing use of market
mechanisms (although without necessarily involving privatisation per se) was
similarly central to public service reform. As then Prime Minister Tony Blair
explained, this was because competitive pressures and incentives drive up quality,
efficiency and responsiveness in the public sector (Blair, 2001), with ‘diversity of
supply’ and choice in place of the ‘old practices’ (Blair, 2002, in Seldon, 2004,
p 634). The resulting more commercial modes of operation and reorientation
towards the service user as consumer have resulted in what has been described
as ‘a transcendent restructuring of the public sector that has cultural, ideological
and institutional dimensions’ (Doonan, 2009, p 140).
The policy outcomes that have ensued from increasing marketisation have had
significant implications in terms of social justice in general and access to justice
more specifically, posing increasing challenges and dilemmas for those involved in
providing legal services in disadvantaged communities.These tensions have been
central to wider debates about social welfare and the future of the welfare state,
overall. Access to justice has been valued as a right in itself, as well as representing
a means of accessing other rights such as welfare rights. This had been a central
plank in post-war debates on the significance of establishing a framework for
providing legal aid as part of the development of the welfare state more generally.
In the context of contemporary policy debates, the question of access to
justice has gained additional significance. Public service modernisation strategies
have emphasised the importance of having informed consumers, aware of and
competent in making choices and accessing rights and services. But without
effective access to legal information and advocacy, people – especially people
from disadvantaged communities, whether geographically defined in terms of
disadvantaged neighbourhoods or communities based upon shared identities or
concerns – risk being effectively deprived of such options. Access to legal aid
has become increasingly relevant, then, facilitating choices and enabling citizens
to obtain their welfare rights, challenging bureaucratic and professional decision
making where necessary (arguably more necessary than ever, in fact, in a period
of rapid legislative change with major impacts in terms of social welfare rights).
Within these debates on access to justice and the provision of legal aid, over past
decades Law Centres have occupied a particular place. This is because, from the
1970s, Law Centres developed their approaches to the provision of legal services
on the basis of particular concepts of justice and access to justice, involving the
need for advocacy and campaigning for the rights of people from disadvantaged
communities. Drawing upon models developed in the US and elsewhere, Law
Centres were established with remits that went way beyond the provision of
legal services to individuals who were unable to afford such services through
the private market. From the 1960s, in addition to meeting the legal needs of
individual clients, the US War on Poverty had provided for legal services that
could take up test cases and pursue class actions, challenging the causes of injustice
and inequality (Johnson, 1999), campaigning for changing ‘governmental systems
2
Introduction
when they adversely affected the poor’ (Kilwein, 1999, p 46). There should be
community involvement, it was argued, with active support for citizen groups
that were seeking to empower that community, if these strategies for social change
were to be effective in promoting greater justice for the poor.
This model extended the concept of justice way beyond the notion of equality
of treatment, recognising the limits to such an approach, given the fundamental
inequalities that were inherent in so many Western democratic societies. These
were not level playing fields. According to Bauman:
One of the most notorious sore spots of democratic regimes is the
contradiction between the formal universality of democratic rights
(accorded to all citizens equally) and the less than universal ability
of their holders to exercise such rights effectively; in other words,
the gap separating the legal condition of a citizen ‘de jure’ from the
practical capacity of a citizen de facto – a gap expected to be bridged by
individuals deploying their own skills and resources, which, however,
they may – and in a huge number of cases do – lack. (Bauman, 2011,
p 13)
As feminists and others concerned with social justice have similarly argued,
equal treatment for all does not necessarily lead to equitable outcomes for all if
structural inequalities such as those arising from gender, race, ethnicity and social
class divisions remain unchallenged (Phillips, 2002; Young, 2008).
Race and ethnicity have been particularly significant factors here. Minorities have
been subject to direct discrimination and they have been at risk of experiencing
institutional racism. Particular communities have been disproportionately at risk of
experiencing poverty, unemployment, homelessness and educational disadvantage,
for example, just as they have been disproportionately at risk of experiencing poor
physical and mental health outcomes (Craig et al, 2012). In addition, barriers of
language and culture have impacted upon minority communities’ opportunities for
challenging discrimination and accessing rights, barriers that have been especially
problematic for so many asylum seekers and refugees.
In line with the implications of this approach, the Law Centres’ umbrella body,
the Law Centres Network, explained that it was not only that ‘Law Centres
defend the legal rights of people who cannot afford a lawyer’; in addition, ‘they
are specialists working in their local communities to uphold justice and advance
equality’.‘They are independent and directly accountable to the communities they
serve through committees of local people’, as is stated in the Network’s annual
report for 2010–11 (see www.law.centres.org.uk), emphasising the importance
of community involvement and accountability together with the importance of
undertaking public legal education and preventative work, pursuing test cases to
challenge discrimination and to advance the cause of social justice more generally.
The research that has informed this book explored the experiences and dilemmas
that these challenges of modernisation agendas were posing for professionals and
3
Access to justice for disadvantaged communities
volunteers.Were these policy agendas facilitating the development of new forms
of professionalism, based on new forms of accountability to service users and
communities, as the advocates of public service modernisation were suggesting?
Was increasing marketisation an effective strategy for improving quality and
choice as well as enhancing cost-effectiveness in Law Centres’ provision of
legal aid? Were service users being put in the driving seat, empowered to make
choices and challenge bureaucratic structures and professional self-interests as
informed consumers, as some academics and policy professionals have suggested
(Le Grand, 2003)? Or conversely, were these policy agendas being experienced
as promoting new forms of de-professionalisation and demoralisation (Banks,
2004), potentially undermining the occupational values and identities of those
involved in public service provision, such as those involved in the work of Law
Centres?
Were there alternative strategies that could be developed for public service
reform, even within the constraints of the current policy framework, in this age
of austerity? If, as Sandel, among others, has argued, there should be some things
that money can’t buy (Sandel, 2012), how might this shape public debates on
what should be the limits of marketisation, with what potential outcomes for
the public service ethos and for policies to promote equality and social justice
(however defined) more widely? While focusing on professionals and volunteers
in Law Centres concerned with the provision of access to justice, the research
explored issues with resonance for wider debates on the future of public service
professionals, the public service ethos and the wider welfare state.The appendices
provide further details, explaining the research methodology and highlighting
some of the research findings that provide evidence in support of arguments put
forward in the main text.
The chapters that follow
Chapter One begins by examining the framework of earlier debates on social
justice, social citizenship and the welfare state, exploring how these have framed
subsequent debates. The contributions of Esping Andersen have particular
relevance here. Like Titmuss and others before him, Esping Andersen pointed to
the tensions inherent in policies to promote accountability and choice for service
users – increasing choices for some, while effectively reducing choices for other
individuals and communities less able to meet their needs through the private
market for a variety of reasons, including the lack of information as well as the
lack of money and other resources. Chapter One concludes by summarising
recent debates on marketisation and on public service modernisation agendas
more generally, including the potential impacts on public service professionals,
the public service ethos, professional power and increasing – or decreasing –
accountability to service users.
Chapter Two begins by focusing upon differing definitions of and perspectives
on social justice, together with their varying implications for public policy.This sets
4
Introduction
the framework for the ensuing historical summary of public policies concerned
with the promotion of access to justice and social citizenship for all, starting from
earlier debates in the post-Second World War period.
In the event, the post-war welfare state settlement failed to realise the principle
of equal access to the law in Britain, in practice leaving gaps that were subsequently
taken up by radical lawyers and others. Drawing upon models developed in the
US and elsewhere, these lawyers and their allies pressed for the development of the
first Law Centres, within the context of wider pressures for rights and equalities
in the late 1960s and early 1970s.
The chapter then moves on to examine the development of legal aid policies
more recently, from the 1990s to the present time, including the changes to legal
aid that have been the subject of legislation enacted in 2012.
Chapter Three moves on to consider debates on ethics and values, with a
particular focus on the public service ethos and professional values. This sets
the context for the discussion of Law Centres’ own distinctive ethos and values.
Law Centres were established with strong commitments to the values inherent
in providing equal access to the law, regardless of the ability to pay and/or other
social advantages and disadvantages, together with commitments to working with
disadvantaged communities to promote social justice agendas more widely. In
addition, Law Centres were typically committed to collective and collaborative
ways of working, with strong community involvement, developing preventative
work as well as working with individuals holistically.These goals were potentially
challenging to achieve in practice at the best of times, let alone when teams were
facing major external pressures for change as a result of increasing marketisation.
Chapter Four focuses more specifically on the challenges and dilemmas that
have been facing Law Centre staff and volunteers, first with the introduction of
the Carter reforms under New Labour (introducing competitive tendering
for contracts and fixed fees for payment) and then with more recent threats to
the provision of legal aid more generally. The chapter concludes by identifying
key dilemmas that have been the subject of contemporary debates within and
about Law Centres.
Chapter Five moves on to consider public service modernisation, restructuring
and recommodification. One of the distinctive features of public service
modernisation agendas has been the emphasis upon restructuring management
and accountability systems, including the increasing use of performance targets
rather than reliance upon previous accountability systems, including the collective
ways of working and community accountability systems that had been typical
features of many Law Centres. Collective ways of working fitted uneasily with the
requirements of the Legal Services Commission, and in this context community
involvement was becoming increasingly problematic.
There were, in addition, dilemmas surrounding staff pay and conditions of
employment and the extent to which relatively favourable conditions could
be maintained in the current post-2008 funding context. The chapter includes
some discussion of pressures for restructuring the labour process itself, including
5
Access to justice for disadvantaged communities
concerns about the potential for deskilling among professionals through the
increasing use of alternative and cheaper forms of labour.
Chapter Five concludes by focusing upon one of the most controversial dilemmas
facing Law Centres in the context of increasing marketisation: the issue of charging
clients. In the past, charging clients for services had been widely perceived as
being in conflict with Law Centres’ ethos and values. More recently, however,
opinions have been shifting as Law Centre staff, management committees/
trustees and volunteers have been faced with the prospect that many of the legal
aid services that were previously on offer might be lost altogether, presenting a
dilemma to which there have been no comfortable answers.
Issues of conflict and competition versus collaboration, partnership working and
planning are addressed in Chapter Six. Law Centres have experienced conflicts
with other agencies in the past (when acting as advocates for clients, questioning
professional decision making, for example, or challenging public bureaucracies such
as local authorities over inadequate or inequitable service provision). More recently,
pressures towards conflict and competition have been increasing. One of the
distinctive features of public service modernisation agendas, and of marketisation
agendas more generally, has been the pressure to compete – competition being
assumed by governments to promote increasing efficiency and choice.
A number of Law Centres had already had some experience of competing
with other agencies, such as Citizens Advice Bureaux, and other advice agencies,
although there were also Law Centres that focused upon the importance of
collaborative ways of working, aiming to provide holistic services to communities
and working with other organisations and agencies where there were shared
interests in policy and campaigning work. The funding system for legal aid that
was introduced following the Carter reforms exacerbated existing tendencies
towards competition as agencies bid against each other for contracts.
As Law Centres struggled to develop survival strategies, a number of them began
to explore ways of collaborating rather than competing with other, like-minded
agencies, aiming to provide coordinated services that were more user friendly as
well as more cost-effective. In some cases these explorations were initiated, or at
least supported, by funders such as local authorities who were keen to identify
ways of making savings while meeting increasing needs for advice and advocacy
services as a result of welfare reforms and public expenditure cuts.
Another distinguishing aspect of marketised labour processes relates to the issue
of time and pressures on the use of time in order to maximise productivity. As
E.P. Thompson has reflected, notions of time changed with the development of
industrial capitalism, bringing new forms of work discipline and the management
of time (Thompson, 1967). Such changes have continued in varying forms in
more recent times. Chapter Seven explores these issues as they relate to Law
Centres in the context of public service modernisation. The funding system that
was associated with the Carter reforms mirrored private sector systems in that
the time allotted to each client needed to be carefully monitored and controlled,
in order to keep within the parameters approved for payment. This posed major
6
Introduction
dilemmas in many Law Centres aiming, as they typically did, to meet the needs of
clients holistically, taking the time to listen to clients in disadvantaged communities
who might be presenting a number of related problems, including problems with
expressing themselves in English as a second language and/or as a result of having
experienced mental health or other disempowering issues in their lives.
However, Law Centres’ missions to work holistically and in preventative ways,
with communities as well as with individuals, could be seen in terms of time
valued and time well spent – making effective savings for the longer term through
preventative policy work – rather than in terms of time wasted. A number of
staff contrasted what they saw as the real value of time spent working in such
ways with clients and communities with the time that was, in their view, being
wasted as a result of cumbersome bureaucratic requirements, together with the
time wasted as a result of poor decision making in public bodies, leading to the
need for subsequent appeals. Time pressures have emerged, then, as a major set
of challenges and dilemmas.
Chapter Eight draws together evidence on the impact of these challenges and
dilemmas in terms of staff motivation and commitment. One of the criticisms that
has been levelled at New Public Management systems is that they presuppose
negative views of human motivation, assuming that employees in general, and
professionals more specifically, need the discipline of targets imposed from above
so as to ensure that they do not operate in self-interested ways. Conversely, critics
of the New Public Management have argued that target-type cultures actually
risk alienating public service workers, undermining the very motivations and
commitments that brought them into the public service professions in the first
place.
The chapter provides examples of disaffection and demoralisation among Law
Centre staff. There were indications too that some of those coming into Law
Centres more recently were less clearly committed to Law Centres’ espoused
ethos and values – volunteers, for example, who came to Law Centres as students
or recently qualified law graduates in order to gain experience and so enhance
their employability in difficult times.What did not emerge, however, was evidence
of any widespread tendency for the next generation of staff and volunteers to
embrace more marketised values. There is evidence, on the contrary, that some
of the next generation have actually developed a strengthened commitment to
public service-type values as a direct result of their experiences in Law Centres.
And there is plenty of evidence to testify to the continuing commitment of those
staff and volunteers, including volunteer members of management committees/
trustees, who are giving of their time as a ‘labour of love’, facing dilemmas that
would be considerably less taxing for them personally, were they not investing
so much emotional labour in the process.
Chapter Nine reflects back on the starting points, the implications for access to
justice for disadvantaged communities and the potentially wider implications for
strategies for social justice, social citizenship and social welfare. The case for the
7
Access to justice for disadvantaged communities
continuing public resourcing of Law Centres is argued, together with the case
for public support for advice and advocacy services more generally.
Meanwhile, Law Centres face continuing dilemmas in the face of increasing
marketisation; dilemmas that have resonances across the provision of welfare
services. What should be the limits to the role of the market? How far can
alternative strategies to safeguard and further improve public services be developed
in ways that strengthen rather than undermine the basic values and principles
of public service provision? And, most importantly, how far can such survival
strategies strengthen the position of those who need, as well as those who
provide, public services, empowering communities to work more effectively with
progressive organisations and groups in the wider pursuit of social justice agendas?
Note
1
Where terms that are explained in the Glossary appear in the text for the first time they
appear in bold type.
8
ONE
Social justice and the welfare state
Before exploring the role of the law, and access to legal advice and advocacy
as the background to the study of Law Centres, this chapter summarises the
framework of earlier debates (Marshall, 1950; Titmuss, 1968) on social citizenship
and the welfare state. How did some of these debates conceptualise public policy
interventions to promote social rights such as rights to education, health, welfare
and social security, and what were the implications for access to justice? These
approaches have been challenged from differing perspectives over time, as the
chapter illustrates, setting the context for more recent debates as these relate to
subsequent chapters. The chapter concludes by summarising recent debates on
marketisation and on public service modernisation agendas more generally, and
their potential impacts on public service professionals. This sets the framework
for the discussion of social justice and the provision of legal aid in the following
chapter.
Social justice and the origins of the post-war welfare state
Even before the end of the Second World War, access to justice figured in
discussions about how to build upon previous welfare reforms. As Baroness Hale
pointed out in her Sir Henry Hodge Memorial Lecture for the Law Society in
2011,‘when the [post-war] Welfare State was established in the United Kingdom
after the Second World War, a legal aid and advice scheme was an important part
of it’ (Hale, 2011, p 6). She quoted E.J. Cohn, who wrote in 1943 that
Legal aid is a service which the modern state owes its citizens as a matter
of principle … Just as the modern State tries to protect the poorer
classes against the common dangers of life, such as unemployment,
disease, old age, social oppression, etc., so it should protect them when
legal difficulties arise. Indeed the case for such protection is stronger
than the case for any other form of protection. The State is not
responsible for the outbreak of epidemics, for old age or economic
crises. But the State is responsible for the law. (Cohn, 1943)
This emphasis upon social protection was central to the thinking behind the
1942 Beveridge Report, with its emphasis upon identifying the major causes
of, and so preventing, poverty and social distress (through state-organised
insurance schemes to provide pensions, sickness and unemployment benefits, for
example). The National Health Service (NHS) was established in this period,
and was underpinned by similar approaches to the role of the state in meeting
9
Access to justice for disadvantaged communities
the needs of its citizens. Beveridge himself actually assumed a wider view of the
state’s responsibilities than did Cohn, recognising that the post-war welfare state
settlement that was being established would depend upon full employment, a
situation that, it was widely believed, the state could ensure through Keynesian
economic policies.
According to the sociologist T.H. Marshall (1950), the post-war settlement
represented a new relationship between citizens and the state. In the past,
citizenship first had been defined in terms of the civil rights that were achieved
in the eighteenth century, and then in terms of political rights too (with the
extension of the right to vote to all citizens, including women, by the early
twentieth century). The third phase, according to T.H. Marshall, extended the
concept of citizenship still further, to include social rights and responsibilities
by virtue of a person’s being a citizen entitled to welfare. Discussing these social
rights, he included the example of the (then) Legal Aid Bill,‘which offers a social
service designed to strengthen the civil right of the citizen to settle his disputes
in a court of law’ (Marshall, 1950, p 48).
This emphasis on rights was also central to the thinking of other influential
thinkers of the post-war period, including Titmuss, the author of a number of
seminal publications on social welfare and the state. For Titmuss, one of the key
characteristics of the welfare state was that services should be provided ‘as social
rights, on criteria of the needs of specific categories, groups and territorial areas
and not dependent on individual tests of means’ (Titmuss, 1968, p 122). The state
must provide an infrastructure of universal services, he argued, promoting values
of equality, freedom and social integration rather than simply providing residual
(and implicitly second class) services for the poor, to be provided on the basis of
discretion rather than on the basis of entitlement as of right.
These approaches have attracted controversy, however, and have been subject
to criticisms from varying political positions over time.Titmuss himself was only
too aware of the importance of addressing criticisms from the Left, as poverty
and discrimination persisted, despite the welfare state, and were problems that
were becoming increasingly evident by the mid to late 1960s (Abel-Smith and
Townsend, 1965; Townsend, 1979). Titmuss was also concerned to address the
increasingly evident failures to meet the needs of black and minority ethnic
communities (although he was less focused on addressing feminist criticisms of the
paternalistic ways in which services were being planned and delivered; Williams,
1989). But he was particularly concerned to challenge the criticisms of the Right,
including those of Milton Friedman, whose influence has continued to have an
impact with the rise of neoliberal approaches from the 1980s onward.
As Titmuss summarised the argument (Titmuss, 1968), Friedman and others of
the Chicago School of Economics argued that, because societies were becoming
richer (the assumption of that time being that UK, like other Western democracies,
would continue to experience economic growth), the vast majority of their
populations would be in a position to satisfy their own welfare needs in the
private market without the help of the state. So they should have the freedom to
10
Social justice and the welfare state
make their own choices, expressing their own preferences and priorities.Titmuss
disagreed. He argued that economic growth per se would not solve the problem of
poverty, nor would private markets in welfare solve the problems of discrimination
and stigma (associated with residual approaches to welfare provision).
In particular,Titmuss challenged Friedman’s assumption that private markets in
welfare offer consumers more choice, illustrating his argument with the example of
private occupational pensions, which offered employees little control, let alone full
transferability if workers moved jobs (and little in the way of guaranteed security,
as has become only too apparent more recently). Finally, and most importantly,
Titmuss challenged Friedman’s assumption that social services, including medical
care, have no characteristics that differentiate them from goods in the private
market, pointing out that consumers were not necessarily in a position to make
informed choices, nor could inadequate services simply be returned, like faulty
goods, to the place of purchase. On the contrary, poor health choices – or indeed
poor educational choices – could have life-long consequences for the unfortunate
ill-informed consumer.The poorest and least informed citizens would be precisely
those who could be expected to be most disadvantaged in terms of making such
choices, or indeed accessing their rights at all.
In a subsequent book, The gift relationship: From human blood to social policy,
Titmuss explored these arguments further, drawing upon comparative research
on the procurement of human blood for medical purposes (Titmuss, 1970). As
he demonstrated on the basis of evidence from the US, South Africa, the then
USSR and elsewhere, paying ‘donors’ to provide blood was less effective than the
British system of relying on genuinely voluntary donations, in terms both of the
quantity and – most importantly –of the quality of the blood provided. There
were a number of reasons for this, including the social characteristics of many of
those ‘donating’ for commercial reasons.
‘As a market transaction, information that might have a bearing on the quality
of blood is withheld if possible from the buyer; such information could be
detrimental to the price or the sale’ (Titmuss, 1970, p 76), he argued, pointing to
the difficulties of screening out ‘donors’ such as drug addicts, alcoholics and carriers
of hepatitis, malaria and other diseases who were motivated to donate by the need
for money to buy food and other necessities of life. In the US, for example, paid
‘donors’ included a category of ‘professional donors’, disproportionately likely
to be poor, unskilled, unemployed and black: ‘an exploited human population of
high blood yielders’. ‘Redistribution’, Titmuss continued, ‘in terms of the “gift
of blood and blood products” from the poor to the rich appears to be one of the
dominant effects of the American blood banking system’ (Titmuss, 1970, p 119).
Once market mechanisms had been introduced into the procurement of blood,
there was evidence to demonstrate the challenges of reverting to a voluntary
system, such as the blood transfusion service that was being operated via the NHS
in Britain at that time. It was, Titmuss argued, ‘easier for societies to abandon
altruism as a motive for giving blood than it is to abandon the principles of
economic man once they have been institutionalized and accepted’ (Titmuss,
11
Access to justice for disadvantaged communities
1970, p 187). Commercialisation was both inefficient and socially inequitable, in
other words (the poorest being most likely to ‘donate’ blood but least likely to be
able to pay for it, should they need it themselves at some future date).
Most importantly,Titmuss concluded, commercialisation undermined altruistic
motivation in society, the motivation to give to strangers for the well-being of the
whole community.This was an ethical issue of central concern more generally, he
concluded, arguing that social policy should be ‘centred in those institutions that
create integration and discharge alienation’ (Titmuss, 1970, p 212).This was in no
way to suggest that altruistic volunteering should be put forward as a substitute for
publicly provided welfare but, rather, to argue that the welfare state should itself
be promoting values of reciprocity and social solidarity in the wider society.The
ethical implications of Titmuss’s writings re-emerge in later chapters of this book.
There are parallels here with more recent debates on what the limits of markets
should be. ‘Do we want a society where everything is up for sale? Or are there
certain moral and civic goods that markets do not honour and money cannot
buy?’ (Sandel, 2012, p 203).
More recent debates
These debates have continued in varying forms as subsequent governments have
addressed the question of the balance between public and private provision in the
field of social welfare.Among the work of more recent theorists, Esping Andersen’s
The three worlds of welfare capitalism (Esping Andersen, 1990) has particular relevance,
with his theorisation of decommodification, building on T.H. Marshall’s
approach to developing the view that social citizenship constituted the core idea
of the welfare state. Esping Andersen argued that removing or (more realistically)
reducing the influence of market forces has been a significant distinguishing feature
of social democratic approaches to social welfare. Rather than envisaging welfare
services as goods to be bought and sold as commodities according to market-led
criteria, he argued the case for ‘decommodifying’ welfare services so that services
could be provided on the basis of need rather than of ability to pay for them in
the private market. This was vitally important in terms of enabling citizens to
access services that they might otherwise struggle to afford, leaving the poorest
without effective access to basic services such as healthcare.
Even more importantly, Esping Andersen went on to argue, decommodifying
services was also significant in terms of strengthening the bargaining power of
working people more generally, rather than stigmatising them. In this approach
he was including the ways in which facilitating access to education, for example,
could strengthen the position of the less-powerful in society, enabling them to
bargain more effectively for social rights and for social justice agendas more
generally. There would seem to be parallels here with Amartya Sen’s discussion
of capabilities, the notion that people need particular capabilities, such as the
capabilities provided by access to education, to put them in a position to effectively
access their formal rights and freedoms (Sen, 1993).
12
Social justice and the welfare state
Esping Andersen contrasted this broadly social democratic approach to the
provision of welfare (as developed in Scandinavian countries in the past, for
example) with other models.These included the corporatist model as developed in
Germany, for example (based upon partnerships between the state, the corporate
sector and other providers, including faith-based organisations).And they included
the more liberal, market-orientated approaches that have characterised the
provision of welfare in countries such as the US, and increasingly in Britain too.
Like Titmuss and others before him, Esping Andersen pointed to the tensions
inherent in policies designed to promote choice – increasing choices for some
while effectively reducing choices for other individuals and communities less able
to meet their needs through the private market for a variety of reasons, including
the lack of information and of other resources. Education is a case in point here,
the provision of increasing choice for some parents and their children – through
the provision of selective schools – having knock-on effects that reduce choice for
others. As Titmuss had earlier pointed out, some people’s welfare might result in
other people’s ‘ill fare’ (Abel-Smith and Titmuss, 1974). Social policies driven by
private insurance interests, for example, risked being ‘imposed without democratic
discussion; without consideration of the moral consequences which may result
from them’ (Titmuss, 1960, p 2).
Neoliberalism and more recent policy developments
In more recent publications Esping Andersen developed his critique of the case
for privatisation and deregulation (Esping Andersen, 1999; Esping Andersen et al,
2002), contrasting Swedish approaches (developed previously, before more recent
policy shifts towards increasing privatisation) with US approaches. Increased use
of the private sector shifted costs, rather than reducing expenditure completely,
he argued, and the outcomes were increasingly unequal, leading him to the
conclusion that ‘A strategy based purely on deregulation and privatization cannot,
like the American example shows, be welfare and efficient optimizing’ (Esping
Andersen, 1999, p 178).
But Britain was moving in the US direction, he suggested:
Rather than tame, regulate, or marginalize markets so as to ensure
human welfare, the idea [of the ‘Third Way’ under New Labour] is to
adapt and empower citizens so that they may be far better equipped
to satisfy their welfare needs within the market. At its core, it is a
supply-driven policy attempting to furnish citizens with the requisites
needed for individual success. Hence its flagship policies are training
and lifelong learning.The assumption seems to be that the social risks
and class inequalities that emanate from markets can be overridden if
we target policy so that all compete on a more equal footing. (Esping
Andersen et al, 2002, p 5)
13
Access to justice for disadvantaged communities
Enabling people to compete with each other does not necessarily tackle structural
inequalities, though. On the contrary, in fact, where structural inequalities have
persisted, the outcomes have remained similarly unequal. And as later chapters
illustrate, individuals and communities in deprived situations have been precisely
those who have most needed support if they were to access their rights, let alone
to claim new rights, as active and empowered citizens.
Left, feminist and anti-racist critics of the welfare state such as Williams (Williams,
1989) responded to these shifts towards the more neoliberal approaches that Esping
Andersen was critiquing by arguing that, for all its faults and concessions to
dominant interests, the welfare state still represented an ‘important challenge by
the working class to the social relations of capitalism – to get the state to safeguard
the working class against the deleterious effects of capitalism’ (Williams, 1989,
p 205).There were parallels here with earlier arguments about the welfare state as
representing significant gains in terms of equality and social justice (Wedderburn,
1965), whatever its limitations in practice (London Edinburgh Weekend Return,
1980). As the welfare state came under increasing attack,Williams argued that an
integrated strategy was needed, not merely to defend past gains but to promote
an alternative to that being promoted by the New Right, with new concepts of
social justice and egalitarianism ‘which embody class, “race” and gender interests’
(Williams, 1989, p xvi).
In addition to challenges about costs (the argument that public spending on
welfare was too high, but still increasing and so in need of control), criticisms of
the welfare state were also focusing upon the issue of bureaucratic paternalism
(Lee and Raban, 1988). Bureaucratic and professional paternalism (the so-called
‘nanny state’) had been a major concern of critics from the right of the political
spectrum, but critics from the left were increasingly expressing similar concerns.
What was needed was an ‘agenda for empowerment’, defined in terms of an
‘empowerment-as-citizen’ approach (Deakin, 1993, p 105) rather than in terms of
individual consumerism – Deakin being very aware of the importance of defining
such a slippery term (Lister, 1996; Beresford and Turner, 1997). Welfare states
needed to be considered in terms of ‘how’ as well as of ‘how much’ welfare they
provided, not simply in terms of the amount of services that were being provided
through the private market or via decommodified systems, it was argued (Bonoli,
1997). This would add another dimension to Esping Andersen’s ‘three worlds of
welfare capitalism’ (Bonoli, 1997), taking account of services’ accountability to
service users and communities and their varying needs, whether these services were
being provided through the public, private or voluntary community sectors. As
Deakin (1993) had already pointed out, bureaucratic and professional paternalism
could be combated in different ways and there were alternatives to the market-led
agendas that had become increasingly prevalent by that time, in the early 1990s.
The predominant policy response in Britain, however, was to promote precisely
such market-led agendas.
14
Social justice and the welfare state
Marketisation and public service modernisation
There is an extensive literature on neoliberal approaches to social welfare. It
includes specific literatures on privatisation as well as specific literatures on the
increasing role for market mechanisms within public and voluntary/not-forprofit sectors along with the increasing adoption of private sector approaches
to management in these sectors (Finlayson, 2003; Page, 2007; Powell, 2008). The
intention here is simply to summarise those aspects with particular relevance for
later chapters, focusing upon the implications for public service professionals and
volunteers such as those involved with Law Centres.
As the previous section has already summarised, New Right governments
promoted policies to roll back the state with a view to enabling the market to
operate more effectively, arguing that this offered individuals and their families
more choice. Welfare provision was to be determined on the basis of rational
consumer choices rather than being determined by paternalistic professionals and
public sector bureaucrats deciding what was best for people – the ‘nanny state’.
Through the introduction of market mechanisms – ‘quasi-markets’ as Le Grand
and colleagues initially characterised the processes by which ‘monopolistic state
providers’ were to be replaced with ‘competitive independent ones’ (Le Grand
and Bartlett, 1993, p 10) – welfare provision was to be transformed.
The key questions to be addressed, it was argued, were whether these changes
would result in greater efficiency and cost savings or would prevent sensible
planning and lead to other forms of waste.Would the changes make services more
responsive to clients or would they distort the relationships between users and
providers, distorting relationships based on trust with ‘suspicious commercialism’
(Le Grand and Bartlett, 1993, p 11)? And would the changes serve the interests
of the poor and those in need rather than simply creating ‘two-tier services that
discriminate against and perhaps stigmatise, the most vulnerable people in our
society’ (Le Grand and Bartlett, 1993, p 11)? The answers, it was suggested, could
depend on a number of factors, including: the market structure (whether there
was genuine competition); the transaction costs; the level of information available
– both to providers and to service users; and the motivations of both purchasers
and providers, since it was argued that many of those working in welfare services
were not ‘commercially or financially motivated and find it difficult to make
the shift from considering, say, the welfare of their users to the financial state of
their provider unit’ (Le Grand and Bartlett, 1993, p 31). These last two factors,
particularly the information available to service users (including the information
available about their rights and how to access these rights) and the motivations
of those working in the public service sector, both emerge as major themes in
the chapters that follow.
Meanwhile, as these questions continued to be debated, key elements of
marketisation continued, although in differing forms, under New Labour
governments (Esping Andersen et al, 2002; Finlayson, 2003; Whitfield, 2006;
Powell, 2008). According to Whitfield, marketisation works by commodifying
15
Access to justice for disadvantaged communities
services and labour, increasing the scope for competition, creating opportunities
for markets to develop and restructuring accountability mechanisms in public
services (Whitfield, 2006). Central planning to meet social needs was to be replaced
by planning via market forces, promoting competition among providers in the
belief that they would respond to consumer preferences more appropriately and
more cost-effectively. As has already been suggested, then, services were to be
consumer led rather than producer led.
Whatever the rationale, critics have argued that the reality has been somewhat
different. ‘Marketisation is a long-term strategy’, Whitfield opined, going on to
argue that ‘New Labour is dressing up choice as empowerment. But the real power
in marketisation is gained by transnational companies and consultancies which
provide services and, slowly but surely, take over the ownership of key public assets’
(Whitfield, 2006, p 48). The implications for public sector employees, according
to Whitfield, have included reductions in pay and conditions, including reductions
in pensions.And they have included changes in organisation, management systems
and structures as staff with private sector experience have been brought in to
promote public service modernisation. Most importantly, service users – and
would-be service users – have been faced with the increasing risks and inequalities
that emanate from the market, with losers as well as winners as a result. As
subsequent chapters demonstrate, there have been serious implications for Law
Centres attempting to meet these increasing needs with tightening resources for
the provision of legal aid, thereby reducing Law Centres’ abilities to pursue test
cases and campaigns in the wider public interest, as well as reducing their abilities
to pursue cases for individual clients, more specifically.
Public service modernisation in practice
As Newman and Clarke (2009) and others have argued, public services have
important roles to be considered, not simply in terms of delivering welfare but
also in terms of their roles in enhancing citizenship and social cohesion – although
they can also have a dark, controlling side. The New Public Management that
was particularly prevalent in the context of neoliberalism, in the recent past,
contained contradictions and ambiguities, leading to varying outcomes depending
upon human agency and context. Like Whitfield, Newman and Clarke pointed
to the ways in which the state had actually been creating markets either directly,
through privatisation, or less directly through the construction of internal
markets, the separation of purchasers and providers and through processes of
competitive tendering. Significantly too, they concluded, market mechanisms
were becoming embedded within public services more generally, suggesting that
‘the binary distinction between state and market obscures the multiple ways in
which markets, market-like mechanisms and market imagery have been deployed
in reform programmes’, with the increase of market discourse (Newman and
Clarke, 2009, p 89).
16
Social justice and the welfare state
While the ‘New Managerialism’ that accompanied these developments had
been complex and internally inconsistent in some ways, typical features had
included the following:
• ‘attention to outputs and performance, rather than inputs;
• organizations being viewed as chains of low-trust relationships, linked by
contracts or contractual type processes;
• the separation of purchaser and provider or client and contractor roles within
formerly integrated processes or organizations;
• breaking down large scale organizations and using competition to enable “exit”
or “choice” by service users;
• decentralization of budgetary and personal authority to managers’ (Newman
and Clarke, 2009).
As Newman (2009) pointed out in the same collection of essays, public service
modernisation under New Labour governments differed from the New Right’s
New Public Management discourse in a number of ways – with its own internal
inconsistencies and potential contradictions. It continued the attack on ‘producer
dominance’, Newman argued, and it continued the aim of opening up more of the
public sector to market mechanisms, just as it continued the emphasis on efficiency
and performance and the search for business solutions to social and policy
problems, in her judgement. But the discourse of public service modernisation
under New Labour placed less emphasis on privatisation and competition per
se, and greater emphasis on partnership working and democratic renewal. As
Alan Milburn, MP (former cabinet minister and chief strategist of the election
campaign for Labour’s third term in office) expressed this, ‘partnerships between
the public and private sector are a cornerstone of the Government’s modernisation
programme in Britain. They are central to our drive to modernise key public
services. Such partnerships are here and here to stay’ (Milburn, 2001, p 33).
There was, in addition, despite the espoused interest in decentralisation and
empowerment, greater emphasis on centrally imposed performance targets,
‘exerting tighter controls over activities previously the province of professional
judgement’ (Newman, 2000, p 51).These latter aspects of modernisation emerge
particularly strongly in later chapters in relation to Law Centres.
This notion of ‘modernisation’ has meant many different things, it has been
argued (Flynn, 2007). It has been questioned whether the term has had any
coherence, in fact (Finlayson, 2003). Powell, for example, identified six approaches,
from modernisation as a means of improvement through to modernisation as
the importation of private sector methods into the public sector and beyond
(Powell, 2008). Newman and Clarke and their colleagues also highlighted such
ambiguities, contradictions and internal tensions (Newman et al, 2008). It was
important to understand these, they argued, in order to understand the scope for
human agency as public service professionals and administrators addressed the
challenges of these developing agendas.
17
Access to justice for disadvantaged communities
As Barnes and Prior’s collection of essays on Subversive citizens (Barnes and Prior,
2009) similarly argues,‘citizens are not “empty vessels” waiting to be filled with the
attitudes and potentialities prescribed for them by dominant discourses’, any more
than professionals are, both practitioners and citizens being active agents with the
capacity for counter-agency (Barnes and Prior, 2009, p 22). Further evidence has
been emerging more recently still, demonstrating varying ways in which public
service providers and others have been experiencing – and resisting – neoliberal
marketisation strategies as these impacted upon them in practice (Hoggett et al,
2009; Manson, 2012; Murray, 2012). Later chapters similarly illustrate in more
detail ways in which Law Centre staff and volunteers have been developing such
counter strategies.
Professional ethos and values were indeed being challenged, and so were
professionals’ relationships with clients. As T.H. Marshall had earlier recognised,
these relationships were rooted in professionals’ ethical codes, based upon trust
between professionals and their clients, while ‘between buyer and seller there is
not [that relationship of trust based upon professional codes of ethics]’ (Marshall,
1950, p 133) – although he recognised that the professions ‘have not always lived
up to these high ideals’ (Marshall, 1950, p 137), having also demonstrated the
capacity for developing self-interested monopolies.The point, as Barnes and Prior
also argued, was absolutely not to present some romantic view of professionals’
counter-agency (Barnes and Prior, 2009). On the contrary, professionals, including
lawyers, have provided ample illustration over the years of professional self-interest
in practice, both in Britain and elsewhere, as the following chapter illustrates.
Rather, the point was simply to identify the scope for contestation and oppositional
consciousness both among professionals and among those who use their services,
recognising the possibilities for alliances and shared strategies in the pursuit of
common interests, including the pursuit of social justice agendas.
Subsequent chapters take up these themes, exploring the challenges to
professional ethos and values and the strategies that have been developed in
response.
18
TWO
Concepts of justice and access
to justice
Before focusing upon the development of legal aid and the history of Law Centres,
more specifically, this chapter starts by summarising different definitions and
perspectives on social justice and their varying implications for social welfare.
Among others, Piachaud has pointed to ‘the very ambiguity of the term “social
justice” – a “feel good” term that almost all can subscribe to’ (Piachaud, 2008,
p 33). While the pursuit of social justice ‘has been the driving force behind
much, perhaps most, social change’, in Piachaud’s view (Piachaud, 2008, p 50),
‘opinions about what is fair and just have differed, and will probably always do
so’, he concludes.
Although similarities have been identified, there have also been significant
differences of approach, both in theory and in practice.There has been widespread
agreement about the importance of basic political liberties and fair process,
together with widespread agreement about the importance of social rights, such
as access to education, if citizens are to benefit from political rights, as Marshall
argued (Marshall, 1950). But there has been far less agreement about what, if any,
inequalities would be justifiable, and on what basis.
Rawls’ A theory of justice (Rawls, 1971) has been centrally significant here as an
influence on subsequent debates, sparking criticisms from varying perspectives.
Deriving his arguments from processes of reasoning – as to what principles
we would choose if we did not know what our own position and life chances
were going to be – Rawls himself claimed that his conception of the principles
of justice stood independently of any particular moral or religious views. He
summarised the outcomes of these processes of reasoning as follows: ‘All social
primary goods – liberty and opportunity, income and wealth, and the social bases
of self-respect – are to be distributed equally unless an unequal distribution of
any, or all, of these goods is to the advantage of the least favoured’ (Rawls, 1971,
p 73).This was an argument not for defining justice in terms of absolute equality
but, rather, that insofar as the outcomes were unequal, these inequalities could be
justified according to Rawls’ criteria. In his view, such an approach could form
the basis for developing strategies for the promotion of justice across different
types of societies. Or could it?
Rawls himself was focusing upon the rules for society as a whole, rather than
upon the rules underpinning individual choices. Once the implications of his
approach are unpacked and applied to individuals, however, Rawls’ theory of
social justice becomes more contentious from varying perspectives, as subsequent
critics have argued. For example, Dworkin has argued that the outcomes could
19
Access to justice for disadvantaged communities
be unfair if the least-favoured were actually disadvantaged as a result of their
own choices (Dworkin, 1981). As Wolff has pointed out, developing this type of
argument, ‘Some may be badly off because they are unable to work, or unable to
find work. But others may have chosen to do no work. Can it be fair to tax the
hardworking for the benefit of those who are capable of hard work, and equally
talented, but choose to laze around instead?’ (Wolff, 2008, p 19). This type of
argument has been prevalent in recent debates on welfare reform and the issue
of so-called scroungers under successive governments, illustrating some of the
political differences underpinning debates on rights and justice in general, and
welfare rights more specifically.
Others, including Sen (1992), have developed alternative responses to Rawls’
approach, focusing instead upon the capabilities that people need in order to
achieve effective functioning. While this capabilities approach implies the need
for access to services such as education in order to develop these capabilities,
Sen has himself refrained from spelling out the requirements in detail (although
others such as Nussbaum (2003) have taken this further). This was because, in
Sen’s view, different societies need to engage in democratic ways of specifying
what such functioning entails, in their own particular contexts. He pointed to the
importance of taking account of both personal characteristics – sex, health/ability/
disability and so on – and social aspects, including social norms and environmental
factors. Unless these were taken into account, equalities of opportunity would
fail to amount to equality in terms of overall freedoms, resulting in unjustifiable
inequalities.
As Young, among others, has similarly pointed out, there has been a tendency
for ‘public and private institutions in contemporary liberal democratic societies to
reproduce sexual, racial and class inequality by applying standards and rules in the
same way to all who come under their purview’ (Young, 2008, p 78), regardless of
their unequal structural positions. ‘Treating as equal those who are unequal does
not produce equality’ (Kennedy, 2005a, p 4). Equalisation for women in relation
to the law has ‘almost invariably been towards a male norm’, is has been argued.
(Kennedy, 2005a, p 3).
Justice, according to Fraser, requires a three-dimensional approach, then, taking
account of:
• issues of redistribution (to address socio-economic inequalities)
• issues of recognition (challenging the hidden and not-so-hidden injuries of
class, race and gender, such as social and cultural marginalisation and the lack
of social respect) and
• issues of participation (challenging marginalisation and exclusion from political
processes), including denial of ‘the chance to press first-order justice claims in
a given political community’, the right to rights and the right to claim those
rights (Fraser, 2008, p 280).
20
Concepts of justice and access to justice
This last point has particular relevance for the issues addressed in this book, as
will be argued in subsequent chapters. Each dimension has particular relevance
too, in terms of race and ethnicity, as well as in terms of other forms of structural
inequalities.
Without engaging in these debates in detail, the point to emphasise here is
simply this: that the concept of justice, whether for individuals or societies, has
been and continues to be contested, both within and between societies.As Sandel
has opined more generally, the question is whether ‘the principles of justice that
govern the basic structure of society can be neutral in respect to the competing
moral and religious convictions its citizens espouse’ (Sandel, 1998, p 2). In his
view, concepts of justice vary, depending, for example, upon whether societies
place greater value on individual liberties and freedom of choice or whether they
place greater emphasis on more collective, majoritarian approaches. Neither of
these – liberal or communitarian – approaches represents satisfactory alternatives,
in any case, according to Sandel, who concludes that ‘rights depend for their
justification on the moral importance of the ends they serve’ (Sandel, 1998, p 3).
These ends have varied in different contexts over time. Previous approaches
to social justice, as developed by such thinkers as R.H. Tawney, envisaged it in
terms of promoting greater equality of outcomes (Bryson and Fisher, 2011). In
contrast, more recent approaches have linked the promotion of social justice to
economic goals (Bryson and Fisher, 2011). While the language of the Labour
Party’s Commission on Social Justice referred to the importance of the ‘equal
worth of all citizens’ and the requirement ‘that we reduce and where possible
eliminate unjustifiable inequalities’ (Commission on Social Justice, 1994, p 1), the
report also emphasised that ‘There will be no solid economic success without more
social justice’ (Commission on Social Justice, 1994, p 18). Far from ‘being inimical
to the neo-liberal values of economic efficiency, competitiveness and growth,
social justice was actually a prerequisite for their effective realisation’, according
to Bryson and Fisher (2011, p 5) – a means towards economic goals rather than
an end in itself. Bryson and Fisher criticised the ‘decisive shift away from the
idea that inequalities are an unjust product of class society and towards the New
Labour idea that individuals should be given opportunities and responsibilities
within such a society’, with equal opportunities to compete for unequal outcomes
– the view that was evidenced in the commission’s report, they argued (Bryson
and Fisher, 2011, p 5).
This touches on debates of central importance in relation to Law Centres, their
aims, ethos and values, as will be suggested later. How far might social justice
agendas be compatible with the operation of a market economy (Doyal and Gough,
1991; Burchardt and Craig, 2008)? Marxists have tended to critique rights-based
approaches in such terms, going as far as to reject the possibility of achieving
rights and justice within the context of capitalist societies, marked as they have
been by inherent structural inequalities (Blackledge, 2012).As Blackledge, among
others, has pointed out, Marx himself argued on occasion that workers’ ‘appeals to
justice were pointless, since there are rival conceptions of justice formed by and
21
Access to justice for disadvantaged communities
informing the life of rival groups’ (Blackledge, 2012, p 38) – in this case workers
and their employers. Considerations of morality and justice were to be put aside
in capitalist societies, it was argued, along with detailed consideration of what
types of inequalities might be justifiable in socialist and communist societies.
To address these issues in the here and now was to indulge in utopian fantasies.
While these types of argument have been influential within Marxist debates,
others have challenged such dichotomous thinking. It was possible to engage with
issues of rights and justice without abandoning a Marxist analysis of the underlying
causes of inequality and social injustice. ‘I think one can have one’s cake and eat
it – in this case at least’, Callinicos has argued (Callinicos, 2001). By implication,
then, rights for individual citizens could and should be pursued, but they needed to
form a part of wider strategies for social change, addressing structural inequalities,
taking account of the impacts of discrimination and oppression, past as well as
present (including the legacies of slavery and racism, for example, as well as the
legacies of discrimination in terms of gender, sexual orientation, age, religion and
disabilities, to name some of the most obvious).
There is not the space here to explore these debates in further detail. The
point to emphasise is simply this, that they have implications for Law Centres’
distinctive aims, ethos and values, as will be argued later. Were Law Centres solely
focused upon taking up individuals’ cases, within the context of existing structural
inequalities? Or were they also concerned to challenge such inequalities, taking test
cases and campaigning as part of wider strategies to promote more broadly defined
approaches to social justice? It was these wider strategies that were becoming
particularly threatened, it will be suggested, which is not to underestimate the
threats to their very survival too.
Public policies to promote access to justice
As the previous chapter has outlined, access to justice emerged as a central question
in earlier debates on the establishment of the welfare state, illustrating the wider
significance of these issues in the context of current debates on the future of
welfare more widely. More specifically, the history of legal aid has been similarly
linked (Sanderson and Sommerlad, 2011). As Geoffrey Bindman pointed out
in an article explaining ‘What made me a legal aid lawyer’): ‘before the Second
World War access to legal services by those who could not afford to pay for them
was largely dependent on charity’ (Bindman, 2002, p 512).While there was some
provision for poor people to obtain representation in criminal cases, this was more
limited in civil cases. Nor was there access to advice, except where this was given
on a voluntary basis. Pro bono help was provided by what were known as ‘poor
men’s lawyers’ through legal aid societies. This was the situation that was to be
addressed by the establishment of the Legal Aid Scheme in 1949. ‘A new dawn
was promised’, Bindman (2002, p 515) explained, ‘in which equality before the
law would be made real by the elimination of personal wealth in determining
access to legal advice and representation.’ Access to justice was recognised as a
22
Concepts of justice and access to justice
fundamental right, then, in parallel with the rights to education, healthcare and
social security, through the establishment of the welfare state.
Building upon the Beveridge Report’s analysis, as the previous chapter explained,
the post-war settlement was to tackle the causes of poverty and related social
problems comprehensively through universal services, provided as rights, rather
than on the basis of individualised charity. As already argued, T.H. Marshall’s
concept of citizenship included these social rights, alongside political rights and
obligations (Marshall, 1950). As Marshall wrote, the civil element of citizenship
was, in his view,‘composed of the rights necessary for individual freedom – liberty
of the person, freedom of speech, thought and faith, the right to own property
and to conclude valid contracts’ and ‘the right to justice’. And he continued: ‘the
last is of a different order from the others, because it is the right to defend and
assert all one’s rights on terms of equality with others and by due process of law’
(Marshall, 1950, pp 10–11).
This point was emphasised by Sanderson and Sommerlad in their discussion of
access to justice under New Labour governments.As they explain, not only are all
other rights ultimately dependent on the right and ability to litigate on terms of
equality with others,‘but the need of the disempowered for this right exceeds that
of other citizens’.This was because, in their view, ‘poor people are more likely to
get into trouble with the law, come into contact with state agencies, suffer violence
and abuse, experience precarious and sometimes dangerous employment, live in
poor quality housing and be exploited by, for instance, private landlords’ (Sanderson
and Sommerlad, 2011, p 179). Civil justice problems were often linked to broader
social, economic and health problems and power imbalances, they pointed out.
Furthermore, ‘the poor are more likely to feel powerless and not entitled to take
action’ (Sanderson and Sommerlad, 2011, p 180). Access to justice, then, was a
key plank of the welfare state settlement, aiming, as the Beveridge Report did,
to tackle the causes of poverty and related social ills.
In practice, though, the post-war settlement in relation to legal aid fell short of
these aspirations, as did the rest of the welfare state more generally. By the mid1960s, as the previous chapter explained, poverty was rediscovered as a persistent
challenge, along with the limitations of other aspects of the welfare state. The
limitations of legal aid in terms of the aspiration for equality of access to justice,
regardless of the ability to pay, were similarly exposed (Abel-Smith, Zander and
Brooke, 1973) – with housing and welfare problems as key areas of demand
(reflecting, once again, the links with wider social inequalities).
This was the context in which the US’s War on Poverty inspired interest in
Britain, demonstrating alternative approaches to tackling these persistent challenges
(Marris and Rein, 1967). The Office of Economic Opportunity (OEO), which
emerged with this War on Poverty, established a Legal Services Program in 1965,
hiring 2,000 full-time salaried lawyers in the first two years of its operations
(reaching a total of some 6,000 by the late 1970s) and bringing legal representation
to poor people in deprived neighbourhoods in many cities, towns, rural areas,
migrant camps and Indian reservations (Johnson, 1999).While this represented a
23
Access to justice for disadvantaged communities
massive increase in access to legal services for individuals, the OEO’s operations
were by no means confined to this, however. Great emphasis was also placed
upon pursuing collective approaches, taking class actions, taking up test cases
and promoting legislative and administrative changes, in the interests of the poor.
In the early days these initiatives were, arguably, making a considerable impact.
According to Kilwein (1999) legal services attorneys won important victories in
the courts that reshaped the American welfare system, especially the programme
that replaced the Aid to Dependent Children programme. ‘Both conservative
and liberal observers agree’ that the Legal Services Program ‘greatly increased the
number of people receiving social welfare benefits’ between 1967 and 1974, he
argued (Kilwein, 1999, p 48), winning judicial decisions, in essence ‘forcing the
government to live up to its Great Society promises to the poor’ (Kilwein, 1999,
p 49). From the start this had been about an activist approach to the provision of
legal services, aiming in the process to change the law for the benefit of the poor.
Whatever the underlying motives of the politicians who launched the War on
Poverty (including their interests in reaching out to new potential voters for the
Democratic Party, among Black Americans migrating from the deep South to
the cities of the North), and whatever the underlying interests of the professional
lawyers represented by the American Bar Association, the American welfare system
was better funded for a period and ‘the poor had a greater voice in its design’
(Kilwein, 1999, p 45). The US approach to the provision of legal services to the
poor was part of a broader programme of social reform, then, concerned with
wider issues of social justice and social change.
Unsurprisingly, perhaps, given shifts in the political landscape, the Legal Services
Program subsequently came under attack. This was not primarily as a result of
attempts to contain expenditure, it has been argued (Johnson, 1999; Kilwein, 1999),
although that was a factor too, even though the actual sums involved were relatively
small in the context of overall budgets. More significantly, the programme came
under attack because legal services lawyers were beginning to challenge vested
interests, including major employers, landlords, insurance companies, bankers
and the healthcare industry, not to forget the challenges to public institutions
themselves. By the mid 1990s, when another Democratic president, Bill Clinton,
was on the back foot, Kilwein argued, he signed legislation removing the right
for publicly funded legal services to engage in policy issues affecting the poor
and forbidding the pursuit of any new class action suits. Overall, these changes
represented what has been described as ‘a complete repudiation of the ideals of
the legal services practice developed by the pioneers of the programme’ (Kilwein,
1999, p 57), illustrating the contested nature of public policies to promote access
to justice more generally.
But this is to leap forward to the future. In the late 1960s and early 1970s, the
US Legal Services Program was seen as a potential model for addressing the
shortcomings of legal aid in Britain – understandably, given the programme’s
impacts at that time, both in terms of providing services to individual clients and
in terms of tackling the causes of poverty and injustice more widely.
24
Concepts of justice and access to justice
The case for the provision of legal aid on the basis of the US model was described
in the Society of Labour Lawyers’ pamphlet Justice for all, published in 1968.This
provided an outline of potential ways forward. Law Centres developed on such
principles were to focus exclusively on the legal problems of poor people. In
this way they could offer an alternative mode of service delivery, justifying the
employment of salaried lawyers.This would be in contrast to the legal aid model
of paying private practice lawyers on a case-by-case basis for such cases as they
undertook for clients who were financially eligible under the scheme. In theory,
this looked logical and attractive. If all the clients were eligible anyway, there was
no point in the laborious process of sending individual approval applications to
the legal aid authorities and submitting invoices for the work done for each client.
In the event, however, the government of the day was not interested in setting
up a network of such centres in Britain and it was left to more local initiatives.
In 1970 the first Law Centre was set up in North Kensington, London, soon to
be followed by Law Centres in Paddington, Islington and Camden, resourced
with local authority and other sources of funding. Although the Law Society was
initially doubtful or even hostile, by the end of the 1970s (with support from the
then Lord Chancellor) an accommodation had been reached and the Society
came round to the view that, far from being a threat, Law Centres were actually
generating additional work for private practice (Smith, 1997). The total number
of Law Centres rose to 62, at their peak (with funding from a range of sources,
including inner-city regeneration initiatives, as well as some funding from central
government for a limited number of centres).
Like their counterparts in the US, Australia and Canada (Zemans and Thomas,
1999), these Law Centres aimed to close the gap between the law and individuals
and communities, especially individuals and communities in deprived areas, taking
up test cases with wider implications and undertaking public legal education,
as well as providing information and advice to individual clients. They were to
provide specialist legal advice and representation in social welfare law, including
welfare rights, disability rights, immigration and asylum, housing and homelessness,
employment, community care and all forms of discrimination including racial
discrimination.While these areas of law were the ones most commonly provided,
a smaller number of Law Centres also offered advice in mental health, education
rights and young people and children’s rights, depending on the local need for
these particular services.1
At this point it should be emphasised that Law Centres developed their remits
in response to local needs, as these emerged, adding areas of provision when
required – and dropping others, such as juvenile crime and personal injury, when
demands for these were being met elsewhere. There were issues of prioritisation
to be addressed here. In the early days Law Centres developed their remits in the
context of increasing opportunities for promoting rights as social welfare law and
equalities legislation developed in the 1970s and 1980s. These changes opened
up new opportunities, potentially increasing public awareness of the possibilities
for taking up and pursuing rights through legal processes.
25
Access to justice for disadvantaged communities
Legal services had not previously been made available to the public outside
the for-profit structure of private practice firms, and lawyers had had only that
structure within which to pursue their careers. Law Centres also offered new
vocational opportunities, typically organised on a collective basis, reflecting their
commitment to democratic, participative values and ways of working, with
democratic accountability to the communities that they were there to serve. In
the early days of relative independence for community Law Centres they were
closely linked, in many instances, to local community organisations and social
movements, actively engaged in community work. Subsequent chapters consider
these aspects in more detail.
These early days were succeeded by more challenging times, however. Funding
had always been relatively precarious, with low levels of local government funding
and minimal direct central government funding. So, as funding from these
sources began to dry up, Law Centres started to operate the legal aid scheme,
submitting applications in behalf of eligible clients and invoicing for the work,
thus guaranteeing themselves a source of funding from the statutory scheme. But
the costs of legal aid were growing, overall, and this became a matter of political
concern as part of wider pressures to contain public expenditure more generally.
Although the growth in legal aid expenditure was actually far more pronounced
in respect of private firms than it was for Law Centres (which were facing
increasing competition from advice agencies as well as from the private sector), by
the 1990s a considerable proportion of their income was coming from legal aid
casework. Even before the Carter reforms, Law Centres faced major challenges,
then, as governments focused upon devising ways of managing costs and obtaining
efficiency savings, including via competitive contracting processes. By this time
a number of private practice firms had discovered that a reasonable living could
be made by concentrating almost exclusively on legal aid work – a far cry from
the situation in the 1970s, when legal aid had constituted a tiny proportion of
the work of most more broadly based practices. To government, there was no
logical distinction to be drawn, then, between these legal aid firms and legal aiddependent Law Centres.
The Carter proposals for reform
Having failed to contain costs effectively (particularly the costs of criminal legal aid,
rather than the costs of civil legal aid, incidentally) the New Labour government
commissioned Lord Carter to come up with proposals to gain more control over
these costs. In the event, it was the proposals that impacted on civil legal aid that
became the focus for reform, rather than the more costly criminal legal aid costs.
The Carter Report of 2006 critiqued the way in which legal aid work was
being administered and contracted and suggested that there was ‘scope for greater
efficiency in the way that not for profit organisations deliver legal advice services’
(Lord Carter of Coles, 2006, p 45). The previous model of funding, the report
continued,
26
Concepts of justice and access to justice
may encourage inefficiency, as by paying for hours worked rather than
cases completed it may encourage some caseworkers to spend more
time on cases than is strictly necessary. This could mean fewer clients
helped, and in an environment where ever more innovative means
are being found to help more people access legal advice, it is essential
that a good quality service is secured that provides maximum value
for money. (Lord Carter of Coles, 2006, p 45)
This report, which was endorsed by the Legal Services Commission (LSC), was
followed by the introduction of the Unified Contract in 2007 – a new system
by which Law Centres and other legal aid providers were to be contracted and
paid. These contracts were to be awarded on the basis of competitive tendering
processes for bulk contracts.
With the introduction of the Unified Contract, payment was no longer based
on the hours that were actually worked for particular cases but on fixed fees
for different types of cases, calculated by the LSC itself. Specifically, the fixed
fee scheme meant that the providers of legal advice, such as Law Centres, were
being paid between £160 and £250 per case, depending on the area of law (for
example employment, debt, welfare benefit and housing). There was provision
for ‘exceptional’ cases to be paid at higher rates, but this applied only to cases
that consumed more than three times the amount of time allowed for the regular
fixed fee cases. As subsequent sections argue in more detail, this fixed fee system
was very controversial, critics arguing that most of the Law Centres’ cases fell
between these two levels, requiring more time than the regular fixed fee allowed
but falling short of the requirements for payment at the higher ‘exceptional’ level .
Legal aid reforms 2007, following the Carter report in 2006
The Carter reforms – a ‘market-based approach to reform’ – have been described
as exemplifying New Labour’s attempt to ‘reconcile a discourse of social justice
with the techniques of New Public Management and the parallel discourse of
commitment to the citizen as a public consumer’ (Sanderson and Sommerlad, 2011,
p 178), ‘nuanced to the point of self-contradiction’ (Sanderson and Sommerlad,
2011, p 183). In Baroness Helena Kennedy’s view, ‘the so called reforms to legal
aid served only to significantly weaken it’ (Kennedy, 2009, p vi).
In summary, government efforts to contain costs were to focus upon increasing
marketisation (through the competitive tendering process), coupled with what
has been described as the micro-management of legal aid transactions through
the administrative systems required by the commissioning agent, the LSC.
Advice was being measured in terms of what might be readily measurable – the
volumes of advice units provided – rather than in terms of impact on the lives
of individuals in disadvantaged communities or the contribution of legal aid to
the promotion of access to justice more generally. The implications, it has been
argued, were that ‘poor people’s problems could be worth only two or three
27
Access to justice for disadvantaged communities
hours of a paralegal’s time, and no more’, reducing legal aid to a ‘sink service for
people on means-tested benefits’ (Sanderson and Sommerlad, 2011, p 194).This,
Sanderson and Sommerlad concluded, corresponded to Crouch’s characterisation
of neoliberal reforms as involving the residualisation, distortion and degradation
of public sector services more generally (Crouch, 2011).
As subsequent chapters argue, there were potential challenges here for Law
Centres, which, despite this increasingly challenging neoliberal climate, were
aiming to preserve their varied but distinctive contributions to the goal of access
to justice for all, regardless of the ability to pay. These distinctive contributions
have been summarised (Smith, 1997) as including the following:
• reaching minority communities (and opening up access to legal careers to
wider constituents in the process)
• supporting effective campaigning for social justice,
• taking up issues of collective concern in communities
• pursuing test cases to challenge discrimination and
• promoting public legal education and preventative approaches more widely.
These were the types of distinctive contributions that had characterised the
provision of legal services as part of the US War on Poverty, rooted in wider
strategies for social change and increasing social justice in the US and elsewhere
(Regan et al, 1999). But none of these distinctive contributions was fundable under
the Carter reforms, which focused solely upon the funding of units of advice and
directly related case-work activities. The reforms were based upon a relatively
narrow conception of access to justice, focusing upon individuals’ concerns rather
than on taking a more collective approach to addressing the underlying causes of
poor people’s legal problems as part of wider strategies for social justice.
Potential issues for legal professionals
As Burdett’s study of Law Centres (Burdett, 2004) demonstrated, challenges of
funding and administration could be located within broader challenges to the
welfare state. As Chapter One has already argued, these policy shifts were part
of wider agendas to increase efficiency and enhance consumer choice – using
market mechanisms to control the behaviours of public sector employees and
public service professionals. ‘Everyone who works in the public sector, lives in
the same household as a public-sector worker, or who has children of school age,
lives in the shadow of the anxious, inspectorial culture that promises to visit the
shame of failure upon us … Governments have not wished to trust professionals,
and thus they have opted to control them’, it has been argued (Cooper, 2008,
p 39, quoted in Bryson and Deery, 2011, p 107).
The point is absolutely not to suggest that professionals in general, or Law Centre
staff more specifically, should not be publicly accountable. As Paterson and Sherr,
among others, have argued, quality, value for money and efficient management
28
Concepts of justice and access to justice
are rarely off the agenda (Paterson and Sherr, 1999) – nor should they be. Rather,
the question is whether the increasing use of market mechanisms represents the
most appropriate or even the most effective way of ensuring the achievement of
these goals. Were they even counter-productive?
Burdett’s study of Law Centres questioned whether they might be. Were the
next generations of staff and volunteers being formed in such a different context
that the public service ethos was at risk of being undermined? Was motivation
increasingly pragmatic and individualistic? Were volunteers more concerned with
developing their CVs, for instance, rather than with focusing upon campaigning
for access to justice for all? These concerns formed part of wider processes of
questioning about neoliberalism’s long-term impacts, including its impacts upon
professionalism and professional values.
Was the neoliberal emphasis upon individual choice empowering service users
and driving public service modernisation, as successive governments claimed it
was? Or was the very notion of ‘public value’, together with the public service
ethos itself, being undermined by these processes of marketisation and posing
new challenges for those concerned with professional ethics and values (Banks,
2004; Hoggett et al, 2009; Benington and Moore, 2010)? The following chapter
explores in more detail the contested notions of professionalism and the public
service ethos in the context of increasing marketisation. This sets the framework
for discussing the dilemmas that were being posed for Law Centre staff and
volunteers, in subsequent chapters. How were these dilemmas being addressed
and, in terms of the emotional labour involved, at what costs?
Before we move on to these debates, the potential implications of the proposed
reforms – and professional reactions to them – need to be summarised more
specifically, so as to set the context more precisely. The Law Society had already
expressed concerns about the Carter proposals before they were implemented,
arguing that the fixed fee system would reduce the supply of lawyers prepared
to undertake legal aid work, encourage cherry-picking (that is, taking on only
the cases that could be resolved most easily within the scheme’s time allocations)
and impact most seriously on the most vulnerable clients (Law Society, 2006).
Private lawyers also submitted critical responses to the LSC consultation, as
the following extract demonstrates, arguing that ‘the scheme you propose will
prejudice vulnerable and disabled clients, especially those with mental difficulties,
most of whom we represent, as their cases take longer to prepare…. [It] will also
discriminate against clients from minority ethnic groups where language barriers
often mean it takes twice as long to prepare and advise on their cases’ (quoted in
Sanderson and Sommerlad, 2011, p 188).
It could, of course, be argued that ‘they would say that, wouldn’t they?’, since
lawyers (sometimes described in the mass media as ‘fat cat lawyers’ profiting from
legal aid) stood to lose out financially from the fixed fee system.
Abel’s study of the legal profession in England and its responses to pressures
for increasing marketisation (Abel, 2003) provides detailed evidence illustrating
both sides of the argument. Lawyers understandably resented the ways in which
29
Access to justice for disadvantaged communities
they were being portrayed by politicians. Debates on proposals for reform, back
in the Thatcher years, had presented them as suspect and ‘shameless’ (Abel, 2003,
p 86), committed to restrictive practices in order to further their own professional
interests, rather than to safeguarding their clients’ best interests. This was part of
wider attacks on professions at that time for what Abel described as a mixture of
motives, ideological attacks based on the view of professional organisations such as
the Bar Council and the Law Society as forms of trade unions (that is, promoting
restrictive practices), plus concerns with cost control and populism. Abel wrote
that ‘some voters disliked lawyers even more than Thatcher’ (Abel, 2003, p xiii).
The election of the New Labour government in 1997 might have seemed to
promise greater commitment to legal aid (although no new money was actually
promised). But attempts to eliminate restrictive practices were still firmly on the
agenda. Even before its election, New Labour had produced a justice policy that
included references to the need to reduce the scope for what was described as
the wide abuse of legal aid by ‘unreasonable litigants and greedy lawyers’ (Abel,
2003, p 273), and accusations that lawyers were seeking to protect their vested
interests. This was the background to New Labour’s attempts to apply public
service modernisation strategies to the legal professions.
But was there any justification for these types of criticism? Was professional
self-regulation actually working in the best interests of clients and in the best
interests of society at large? By 1998 there was recognition that all was not
well within the professions themselves, with the New Law Journal predicting
the end of self-regulation (Abel, 2003, p 405). The battle against legal aid cuts
could have been won, it was argued, if the Law Society had set itself to root out
restrictive practices earlier. While for some the problem was that there had not
been sufficiently vigorous opposition to the government’s proposals, for others
the problem was also the profession’s failure to set its own house in order. There
were, in addition, criticisms of past failures to address sexism and institutional
racism in the professions, pointing to the under-representation of women in the
Law Society’s Council, as judges or as partners in law firms, for example. It was
argued that these institutional biases impacted on women and black and ethnic
minorities before the courts, where myths and stereotypes were disfiguring the
legal process (Kennedy, 2005a).
While critics such as Kennedy pointed to the importance of addressing these
issues, this was absolutely not such as to endorse caricatures of all lawyers as ‘greedy
fat cats’. On the contrary, there were significant differences within the profession
in terms of the rewards to be reaped – and who was reaping them. For instance,
while 50% of law students were female by the beginning of the 21st century,
the majority, Kennedy argued, were being ‘steered towards public service law,
by which I mean fields largely funded out of legal aid’. ‘The men make career
choices much more related to money and prestige and head for high-rewarding
areas of practice’, she continued, but far from embarking upon careers as potential
‘fat cats’, ‘women find their place doing poor folks’ law’, the least rewarded areas
of legal practice (Kennedy, 2005a, p 2).
30
Concepts of justice and access to justice
There is not the space to go into these debates in any detail.The point is simply
to emphasise the importance of taking criticisms of the professions seriously and
focusing upon ways of ensuring their accountability – while discounting the
populist rhetoric of some of their opponents.These criticisms potentially applied
to professionals such as lawyers. But lawyers were also concerned with challenging
the decisions of officials and, indeed, the decisions of professionals providing other
services too. Who, then, was guarding the guardians? Once again, the question
was not whether but how accountability mechanisms could be most effectively
ensured – via the increasing use of market mechanisms or via strengthened forms
of democratic accountability, including accountability to service users and their
surrounding communities?
For Law Centres, the Carter proposals posed these challenges in very particular
ways, as subsequent chapters explore in more detail.
Before we move on to these, however, two other elements of the proposed
changes needs to be considered in summary: the attempt to bring legal services
together to develop more joined-up approaches and more recent legislation
reducing the scope of legal aid more generally.
Community Legal Advice Centres and Community Legal
Advice Networks
While the Carter reforms of 2007 have undoubtedly had far-reaching effects on
Law Centres, there have been other changes too, impacting on the ways in which
Law Centres have been operating. Even before the implementation of the Carter
reforms, after the publication of the consultation paper Making legal rights a reality
in 2005, the LSC had set out to pilot a scheme that aimed to develop partnerships
among legal service providers. This scheme sought to build Community Legal
Advice Centres (CLACs) in urban areas and Community Legal Advice Networks
(CLANs) in rural areas in order to offer legal advice in more integrated and
cost-effective ways.The LSC’s objective was that this ‘joined-up approach’ (LSC,
2005) would be ‘run through a lead supplier’ who would then act as an interface
with the LSC. This, so the consultation paper argued, ‘would reduce transaction
costs on all sides and would allow the delegation of some LSC functions to the
lead supplier’ (LSC, 2005, p 41).
Although the idea of collaborative working and creating partnerships had widely
been positively received, there were concerns about the ways in which the CLACs
and CLANs were to be implemented (Hansen, 2006).A response from the Advice
Services Alliance2 (ASA, 2005) to the LSC’s 2005 consultation paper critiqued
the plans of the LSC for being inadequately researched and for lacking details on
implementation and costs.The ASA further questioned the LSC’s proposal as not
including immigration and asylum law within social welfare law.
The main concern put forward by the ASA, however, was that the top-down
approach to the implementation of CLACs failed to take into appropriate
consideration the strong community links and local knowledge of existing
31
Access to justice for disadvantaged communities
providers. There were fears that many advice agencies might ‘go up the wall or
survive in subsistence form’, as Hynes and Robins put it, if they were not included
in the CLAC or CLAN (Hynes and Robins, 2009, p 76). In short, while there were
already ambitions to develop joined-up approaches to the provision of legal advice,
there were also major concerns. In the view of Hynes and Robins, for example:
‘The CLAC initiative combines the best and worst of recent policy thinking on
legal aid. The central idea to have better local planning of services is right but
the project appears to be compromised by a crude and divisive tendering process
with little respect for the providers’ (Hynes and Robins, 2009, p 75). Chapter Six
considers in more detail the issues involved in attempts to promote collaboration
in the face of increasing pressures for competition.
More recent legislative changes
The proposals for the introduction of CLACs and CLANs posed potential
challenges, then, in addition to the Law Centres’ earlier concerns about the
implementation of the Carter reforms more generally. More recently, the policy
context has again shifted significantly, as the Coalition government has developed
its own proposals for further reform. In particular, the Legal Aid, Sentencing and
Punishment of Offenders Bill (LASPO) (passed as an Act in 2012) had potentially
major implications for Law Centres’ future funding and viability, especially for
those most reliant on legal aid funding. This was because the legislation set out
to reduce the scope of legal aid as well as to change the eligibility criteria and
the fee structure. In total, the Ministry of Justice expected to make savings of up
to £350 million on the legal aid budget, which then amounted to a little above
£2 billion (Ministry of Justice, 2010, p 5).3 The most significant savings in the
legal aid budget, as Cookson suggested, would be made ‘by changing the scope
of Legal Aid by removing many cases from coverage’ (Cookson, 2011, p 72),
accounting for an estimated £280 million (gross) or around 80% of the savings.
While criminal legal aid would (for the time being at least) remain available for
those who ‘cannot afford to pay for their own representation’, civil legal aid was
expected to be reduced considerably. In general, most areas of social welfare
law were planned to be taken out of the scope of legal aid unless they were
explicitly included as staying within scope. Specifically, the government planned
to remove legal aid from employment advice (except in discrimination cases),
from debt advice (except when someone’s home was at immediate risk), from
welfare benefits advice, from immigration law (except in cases of detention), from
divorce law and from school exclusion appeals as well as from clinical negligence
and personal injury cases. The areas for which legal aid was expected to receive
continued funding included family law cases that involved domestic violence and
forced marriage or child abduction (Ministry of Justice, 2010). Apart from these
changes in the scope of legal aid, the government also proposed to introduce a
means-tested contribution in legal aid cases, resulting in those with assets of more
than £1,000 having to pay at least £100 of their legal costs.4
32
Concepts of justice and access to justice
As a result of these proposed changes to legal aid, it was estimated that ‘605,000
people might be affected, of whom an estimated 595,000 might no longer receive
Legal Aid as a result of removing specified law categories from scope and around
10,000 might now pay contributions or be subject to higher contributions’
(Ministry of Justice, 2011a, p 11). More recent figures have estimated an even
higher number of 623,000 people losing out on advice on civil legal problems
as a result of the reductions in the scope of legal aid (Hynes, 2012). Independent
research (Cookson, 2011) suggested, however, that a reduction in legal aid
spending in areas such as social welfare and family law as well as clinical negligence
(£240 million, or 85% of the £280 million saving) might create considerable
knock-on costs of £139 million, which might amount to 42% of the predicted
savings, calling into question the government’s estimated savings from the legal
aid budget.
While recent changes in the scope of legal aid had not fully crystallised at the
time of this writing, in terms of their long-term consequences for Law Centres
the effects of the Carter reforms, implemented in 2007, have become apparent.
The following chapters (Chapter Three and Chapter Four) explore the challenges
posed by these changes and the consequent dilemmas experienced by Law Centre
workers and volunteers. Later chapters then go on to explore specific themes in
further detail, including the views of other stakeholders in the face of increasing
challenges for the longer term.
Notes
1
www.lawcentres.org.uk/lawcentres/detail/what-do-law-centres-do/ (last accessed
1 March 2012).
2
An umbrella organisation for independent advice networks in the UK consisting of
2,000 providers of advice, including Law Centres and Citizens Advice Bureaux (CAB).
3
S e e a l s o n e w s . b b c. c o. u k / d e m o c r a c y l i ve / h i / h o u s e _ o f _ c o m m o n s /
newsid_9674000/9674331.stm (last accessed 4 March 2012). The legal aid budget of
£2.146 billion for the year 2009/2010 was comprised of £1.205 billion for criminal
legal aid and £0.941 billion for civil legal aid (Ministry of Justice, 2011a, p 9).
4
www.bbc.co.uk/news/uk-11741289 (last accessed 4 March 2012).
5
www.justice.gov.uk/legal-aid/newslatest-updates/legal-aid-reform
33
THREE
Ethos and values
This chapter starts by summarising competing perspectives on the public service
ethos and professional ethics more specifically, building on the discussion of
competing perspectives on lawyers in the preceding chapter. Considerable
claims have been made about professional altruism; claims which have in turn
been subjected to fundamental challenges. Public service professionals have been
faced with increasing dilemmas, in the context of public service modernisation,
in attempting to balance competing demands despite the pressures to reduce the
space for the exercise of professional judgement. This introductory section sets
the context for the later focus on Law Centres and those who were working in
them, starting with their motivations and values as these interrelate with Law
Centres’ own missions and ethos. Subsequent sections explore the reflections of
those directly involved with Law Centres, and reflections by stakeholders from
different sectors: lawyers in private practice, staff from other voluntary sector
agencies such as advice centres, local authority officers and councillors and
funders more generally.
Contested approaches to the public service ethos,
professional ethics and professionalism in the context of
public service modernisation
Differing approaches to the contested notion of the public service ethos need
to be unpacked so as to set the context for the discussion of ethics and the
professions. Is there a public service ethos, and, if so, how might it be changing
in response to public service modernisation? In summary, the public service
ethos was traditionally associated with notions of service to the public within the
framework of public institutions such as the civil service, and characterised by
commitments to values such as those of accountability and impartiality, delivering
services according to agreed procedures, doing a socially useful job without fear
or favour.
The question of motivation has been involved here, the public service
motivation construct being defined as an individual’s predisposition to respond to
motives associated with public institutions (Perry and Wise, 1990) and to behave
accordingly. Altruism – the commitment to serving the public, even if this might
involve lower rates of pay in public service employment – has been defined as a
central aspect of this motivation, although more rationally self-interested motives
such as job security have also been identified as potentially relevant, in the past
at least (Perry and Honeghem, 2008). Individuals can and do act with varying
motivations.
35
Access to justice for disadvantaged communities
Social democratic approaches to the welfare state have tended to place particular
emphasis upon notions of reciprocity, mutuality and solidarity. As Chapter
One has already suggested, Titmuss, for example, explored altruism in terms of
acting ‘reciprocally, giving and receiving service for the well-being of the whole
community’ (Titmuss, 1970, p 213), recognising the common benefits of public
services universally available on the basis of need, rather than on the basis of
ability to pay for them. This latter approach seemed to have particular relevance
for Law Centre staff and volunteers, as later chapters illustrate.
More recently, the notion of the public service ethos has become more
controversial, as critics have emphasised associations with bureaucratic
dysfunctionality and paternalism (Le Grand, 2003). It was suggested that public
officials were using this notion as a smoke-screen and providing spurious
justifications for bureaucratic inefficiencies and inertia. The logic of agendas for
public service modernisation was to question the continuing relevance of the
public service ethos, given that public services were being increasingly delivered
in other ways, driven by market-led forms of accountability to service users. As
the House of Commons Public Administration Select Committee’s report on
The public service ethos argued, the public service ethos was not different from or
superior to that of the private or voluntary sector (House of Commons, 2002).
Public servants (including MPs, of course) could behave in corrupt and unethical
ways, just as individuals in the private sector could deliver services according to
the highest ethical standards.
While recognising that individuals may indeed be motivated by, and may or not
behave in ways that resonate with, the characteristics of the public service ethos,
this still leaves the question as to whether there may be differences between sectors.
Is their primary goal to provide services to the public or to make profits for their
shareholders and partners? This issue emerges later in the context of Law Centres
and their experiences and relationships with private sector law firms.
The Public Administration Select Committee’s report went on to suggest a
public service code, starting from the principles of probity, transparency and
accountability that were supposed to underpin public life overall. Public servants
should also focus upon providing quality services, treating public service workers
and their clients fairly and equitably. There should be proper redress where
maladministration had occurred (a central concern for Law Centres, of course).
And public service providers should remember at all times that ‘public service
means serving the public, not serving the interests of those who provide the
service, and work collaboratively with others to this end’ (House of Commons,
2002, p 6) – a comment reflecting the distrust of public servants and professionals
that underpinned public service modernisation agendas in the first place.
Was the public service ethos being undermined, then, as a result of this distrust,
which was accompanied by the increasing use of marketised incentives such as
performance-related pay? John and Johnson (2008) examined the evidence for this
argument and concluded that it was not borne out by the data. Despite anxieties
about the impact of public service modernisation, there were still differences
36
Ethos and values
between employees in the public sector and those in the private sector in terms
of the sources of job satisfaction, for example (with greater emphasis being placed
upon whether the job was useful to society, allowing opportunities to help other
people, for instance). John and Johnson also found that younger people seemed to
demonstrate as much commitment to public service values as did older employees,
although they were tentative in offering possible explanations for the apparently
relatively high levels of commitment among the young. There seemed to be
evidence that the public service ethos still existed among both older workers and
their younger colleagues. But this in no way implied that they would be immune
from demotivation in response to future changes.
In summary, the notion of the public service ethos has been highly controversial,
raising questions that underpin debates on the professions and on professional
motivations and ethics in the context of public service modernisation. These
issues, including the generational issues involved, emerge later in relation to the
values of Law Centres and their staff and volunteers.
Ethics and the professions
Ethics and the related notion of ‘ethos’ have been centrally important yet similarly
contentious topics in debates on the professions, professionalism and the future of
public welfare provision more generally. On the one hand, professionals have been
presented (or at least, have presented themselves) as ‘knights in shining armour’
(Le Grand, 2003). The most frequently cited traits that have been described as
characterising professionals have been their membership of an organisation that
promulgates ‘standards and/or ideals of behaviour’ and that ‘they publicly pledge
themselves to render assistance to those in need and as a consequence have special
responsibilities or duties not incumbent upon others who have not made this
pledge’ to use their specialist knowledge and skills in such altruistic ways (Banks,
2004, p 19). In summary, professionals should be motivated not solely by the cash
nexus, without regard to the relevant professional standards. Obvious examples
include the commitment that lawyers should not obstruct the course of justice
by continuing to pursue a case if a wealthy corporate client were to admit their
guilt to their lawyer while continuing to protest their innocence in court.
Conversely, professionals have been presented as ‘knaves’, motivated by
their own self-interest, operating restrictive practices for the benefit of service
providers, rather than working in the best interests of service users. According to
those holding more sceptical views, ‘professionals surround their work with an
ideological covering. It is a “calling”, not merely a job’, professionals claim,‘carried
out from high motives of altruism, of glory, or of moral, spiritual or aesthetic
commitment, rather than for mundane gain’ (Collins, 1990). But these types of
claims can be seen as rhetorical devices, it has been argued in response, justifying
the use of professional power and privilege (Wilding, 1982). As Chapter One has
already suggested, there was evidence of such potentially negative views of public
service professionals from the post-war period onwards (and, indeed, before that
37
Access to justice for disadvantaged communities
too); negative views that were compounded by feminists and anti-racists, who
were deeply critical of the paternalism and institutional racism that in their view
was too often displayed (Williams, 1989).
In recent times, more general criticisms have been associated with the
managerialism that was so prevalent from the late 1970s. As Page, for example,
has argued, New Labour was ‘skeptical of the claim that welfare professionals,
motivated by a public service ethic, can be relied upon to develop high quality,
cost efficient services without external monitoring’ (Page, 2007, p 109). Targets,
performance monitoring and audits were required in order to control their
potential for exhibiting more knavish behaviours in practice, as the previous
chapter has suggested in relation to lawyers engaged in legal aid work more
specifically. Critics such as Standing have argued more generally that increased
monitoring of professionals illustrated society’s lack of trust in professionals to be
professional (Standing, 2011), setting the UK’s New Labour government’s approach
in the context of similar strategies being developed internationally.
The points to emphasise here are simply as follows. The issue of professional
ethics has been contested from varying perspectives.As with debates on ethics more
generally, there have been competing approaches, based on differing theoretical
underpinnings, as to what might and what might not constitute ethical behaviours.
This suggests that professionals have needed and continue to need the space to
exercise their judgement, weighing up competing claims. Public service provision
has been conceptualised as having been particularly challenging in these respects,
a dilemmatic space in which there may be no self-evidently right thing to do
(Honig, 1996). Both professionals and street-level bureaucrats have experienced
tensions, it has been argued, in attempting to balance colliding value systems
and competing demands in the public sphere (Lipsky, 1980; Hoggett et al, 2009).
These pressures have become increasingly problematic in the context of public
service modernisation.
Differing approaches and outcomes
Before we move on to consider the implications for Law Centres, these differing
approaches need some brief introduction, together with the range of potential
outcomes in terms of professional motivations and behaviours. In summary,
approaches based upon Kantian principles have stressed the importance of
absolute values as rules for guidance, such as the categorical imperative of
commitment to the best interests of each individual client. For example, the
doctor’s first duty, according to a Kantian approach, would be to each individual
patient, recommending treatment according to the best interests of that particular
individual. Rationing access to expensive medication or treatments would have
no place here, in terms of the professional ethics involved. Although doctors
have been understandably reluctant to become directly involved in rationing
decisions within the context of the NHS, the reality has been more complex. In
practice, like other professionals, doctors have actually made and continue to make
38
Ethos and values
decisions with rationing implications, such as decisions about how to allocate
their time so as to meet varying needs most effectively. In periods of austerity
the pressures to make judgements about the allocation of scarce resources have
been increasing across a range of professions, including the legal profession, as
has already been suggested.
Approaches based upon utilitarian principles, in contrast, start from the principle
of the greatest good of the greatest number of people, implying that professionals
need to balance the interests of individual clients and communities with the
interests of society more widely. But who decides what would be in the best
interests of the majority, and on what basis? And how would such approaches
impact upon the rights of minorities, especially disadvantaged minorities?
Arguments of the utilitarian kind have been used to justify – or to challenge
– limits to the time that lawyers can spend with any particular legal aid client,
in order to ensure that as many clients as possible receive some form of service,
however time restricted, as the previous chapter has demonstrated. But the legal
profession has questioned whether such forms of rationing would meet the needs
of the most disadvantaged clients.
These underlying differences of approach have had varying implications for
professional ethics, and especially for professionals providing public services in
periods of public expenditure constraint. As Banks and others have pointed out
(Banks, 2004; Hugman, 2005), professional codes of ethics have varied from
country to country in any case, as well as from profession to profession, over
time. This is not to suggest that any one ethical code is the moral equivalent
of another. Rather, the point to emphasise is that ethical codes are varied and
contested. While codes may provide guidance, this is not to the exclusion of the
need for professional judgement.
In the current context however, as Banks (2004) has also noted, ethical codes
have tended to become more prescriptive.And as codes become longer and more
prescriptive, the room for trust and discretion gets narrower.This tendency, it has
been argued, has been an increasingly marked effect in response to new modes of
management in the public services. Although there have been some differences
of view as to the extent to which professional discretion has been curtailed in
practice (Clarke and Newman, 1997; Evans, 2010), the trend has been well marked.
In the 1990s, for instance, Hoggett described the combined effects of successive
government attempts to get ‘more for less’ in terms of new and more sophisticated
forms of organisational control (Hoggett, 1996) – challenging professional selfregulation, as the previous chapter has illustrated in relation to the legal profession.
In Hoggett’s view, control mechanisms were increasingly centralised, despite the
simultaneous promotion of strategies claiming to promote decentralisation and
self-regulation within the public services. Some senior professionals had become
professional-managers as a result, while ‘the diffusion of management systems has
clearly had the effect of reducing professional autonomy across a wide number of
sectors’ (Hoggett, 1996, pp 28–9), potentially undermining motivation and trust
in the process (Hoggett, 1996; Hoggett et al, 2009; Sommerlad, 2001).
39
Access to justice for disadvantaged communities
This leads into the next point to be noted in relation to this study: the
increasing interest in ‘virtue ethics’ in response to some of the challenges of the
new managerialism (Banks and Gallagher, 2009). A virtue ethics framework, it
has been argued, ‘can provide an orientation to professional attitudes and actions
that offers a welcome counter-weight to the current emphasis on obligationbased performance to externally defined principles, rules and standards’ (Banks
and Gallagher, 2009, p 49). Here the focus shifts away from targets and outputs
to emphasise, in contrast, the ‘virtues’ required of the professional in question;
virtues such as professional wisdom, care, respectfulness, trustworthiness, justice,
courage and integrity. The individual professional is defined as a moral agent
within a community of practitioners who share a core moral purpose or service
ideal (Banks and Gallagher, 2009).
Virtue ethics has its critics too. This type of approach is not unproblematic,
and does not provide unproblematic answers for professional practice within the
context of public service modernisation. Ethical issues and dilemmas are, arguably,
inherent in the exercise of professional judgement per se (Hoggett et al, 2009).
The point for the purposes of this study is simply to emphasise the tensions that
virtue ethics highlight, and the potential conflicts for professionals in the current
policy context.
The outcomes, meanwhile, continue to emerge. What Banks describes as
the ‘new accountability’ upwards has been associated with processes of deprofessionalisation, restricting the space for professional discretion and potentially
threatening professional ethics more generally (Banks, 2004). But this is not
the only view, or indeed the only possible outcome. For some professionals,
for example, the new professionalism could be positively associated with more
effective uses of scarce resources and/or more responsive outcomes for service
users, to be welcomed as such. For others, more pragmatically, these challenges
needed to be met by more professional entrepreneurialism, as the only realistic
basis for survival in an increasingly competitive climate.
Alternatively, professionals may respond to what they perceive as threats to their
professional integrity with reluctant conformity or by developing individual or
collective forms of non-compliance (Banks, 2004; Hoggett et al, 2009; Sommerlad,
2010). Sommerlad’s earlier study of legal aid lawyers quotes Downs (1966) in this
context:‘the greater the efforts made to control subordinated officials, the greater
the efforts by those subordinates to evade or counteract such “control”’ (Downs,
1966). The effects of such control strategies may actually be perverse, encouraging
knavish rather than knightly behaviours in order to achieve the required targets.
As Sommerlad added, by way of illustration, a lawyer commented that ‘“I have
to go into the office this weekend and forge a whole lot of stuff for the audit.
That’s what I really hate; I think I was a good lawyer, maybe not perfect, but I
was certainly never dishonest; and that’s what this is making me”’ (Sommerlad,
2001, p 355).
Finally, professionals may respond with what Banks has described as ‘principled
quitting’, ‘jumping ship’ in order to retain personal integrity when all other
40
Ethos and values
strategies seem to have failed (Banks, 2004). Later chapters provide illustrations
of each of these types of response to the ethical issues and dilemmas posed by
public service modernisation and more recent policy developments in relation
to the provision of legal aid.
Law Centres, their missions and ethos
How were these potential dilemmas being experienced in Law Centres? What
were Law Centres themselves setting out to do and in what ways did the services
that they were offering differ from those being offered by other providers? How
were those involved, whether as staff or as volunteers, describing Law Centres?
And how were Law Centres being perceived by other stakeholders, including
lawyers in private practice, as well as people working in CABs and other advice
agencies, or by local authorities and other funders?
Law Centres’ ethos emerged as intertwined with the motivations and values of
those directly involved in them. Staff and volunteers typically explained their own
motivations in terms of their commitments to Law Centres’ missions: ‘meeting
community needs for legal services’ and concerns with ‘addressing social justice
issues’, ‘broadening access to quality advice’ and ‘access to justice for the most
vulnerable in society’, for example.
People’s motivations are discussed in more detail in Chapter Eight, together
with the ways in which motivations may have been shifting over time in response
to changing contexts. Staff and volunteers brought values with them, and these
values in turn were subject to modification. In some cases commitments deepened,
while in other cases there was some evidence of erosion as people struggled with
the dilemmas associated with the pressures of the Carter reform-related changes.
The point to emphasise here is simply this, that the motivations and values of
those who were working and volunteering in Law Centres were clearly linked
to Law Centres’ own ethos and values, whether as cause or effect – or both.
So what did staff consider to be the key aspects of Law Centres’ ethos and
values? There was broad agreement that the role of Law Centres was to facilitate
access to justice for all, regardless of ability to pay or social position. It was
about providing a “quality service ... to the people who can’t access legal advice
elsewhere”. “There’s no one else that helps the people we help”, commented
one Law Centre worker.The Law Centre was there to ensure that “all sections of
the community [have] access to the law”, a trustee remarked in similar vein. “We
want to provide a quality service ... to the people who can’t access legal advice
elsewhere”, a solicitor in another Law Centre said, emphasising the importance
of quality provision.
Accessibility emerged in terms of locality and atmosphere, as well as in financial
terms.The administrator in one Law Centre commented that the Law Centre that
she managed was located in shop-front premises in an area of high social need.
People could call into the Law Centre when going about their daily business.
41
Access to justice for disadvantaged communities
Being physically accessible was seen to be important. A number of Law Centres
were similarly located near to markets and local shops.
It was also recognised in one city, however, that there could be cases where
clients might prefer to go to a more anonymous central location (if they were
anxious to avoid relatives or neighbours learning that they were taking up issues
of domestic violence, for example). In the city in question there were collaborative
referral arrangements in place to address this issue. Issues of collaboration between
different agencies are considered in more detail in Chapter Six.
The atmosphere in Law Centres was also seen as important, being welcoming
to clients;“very approachable, informal”,“clients like this”,“they feel confident”,
as a local volunteer explained. A volunteer in another Law Centre made similar
comments about the atmosphere, describing it as “so welcoming, so relaxed”, with
very helpful staff on the reception desk who were “so polite”. If this hadn’t been
the case, she continued,“I wouldn’t have bothered to give my time. I feel valued.”
“We don’t patronise people”, a lawyer explained, adding that people could see
this, “so we’ve built up a lot of trust” over the years. People “know that we’re on
their side.” This chimes with the findings from earlier research which identified
that less socially advantaged groups tended to prefer to obtain legal advice from
a “one-sided” lawyer, that is, a lawyer who could be trusted to be on the side of
the less-advantaged (Abel-Smith, Zander and Brooke, 1973).
A number of lawyers also commented on the importance of the atmosphere
within the Law Centre in terms of team working and collective ways of working.
One young woman noted, “I hadn’t worked in one [collective] before ... it was a
bit weird at first”. She reflected that although it took some getting used to, it was
positive to be treated with respect and to “feel valued” as part of the team. This
was part of the Law Centre’s ambience. In some instances experiences of working
in such an atmosphere were contrasted with more negative past experiences ,
including in private practice, where the focus was described as being “there to
make money for the boss”.
However, there were also a few reflections on more negative experiences in Law
Centres. Several lawyers contrasted the atmosphere in their current Law Centre
with atmospheres that they had encountered elsewhere when collectives had not
worked effectively or harmoniously. Law Centres were “special places”, a Law
Centre lawyer explained, “but they are only as special as the people in them.The
ethos is constantly fragile and in need of what museum people call curation …
keeping the flame burning. The little flame can flicker and blow out”, though.
The same lawyer elaborated on this theme: “one of the issues in terms of the
fragility of the Law Centres is that the business case and the business realities are
very different … clearly one pressure on the ethic or ethos is the need to make
it pay, to make it sustainable and to establish business disciplines on the work of
each lawyer” – a balance that is increasingly difficult to manage, it was widely
argued, and as later chapters illustrate in more detail.These issues about working
relationships between staff, team working and the challenges of collective forms
of organisation are explored in more detail in Chapter Five.
42
Ethos and values
Law Centres were generally very busy – and sometimes working from unsuitable
premises (with insufficient space for clients to speak with receptionists in privacy,
for example). Some offices were also clearly in need of redecoration, being
scruffy as well as cramped. The contrast with the décors of the private sector
firms that were visited could scarcely have been more striking. But generally, and
most importantly, Law Centre clients were observed being greeted in warm and
welcoming ways.Typically, there were toys available for children and notice boards
displaying information about a range of local services and community activities.
Holistic approaches
Another frequently emphasised aspect of Law Centres’ ethos was the importance
of treating clients’ problems holistically. At this point, some clarification may be
helpful, as the term ‘holistic’ was applied in two slightly different ways. When
referring to an individual client, working ‘holistically’ implied addressing the
client’s different problems and needs comprehensively. For example, this might
involve identifying the links between a client’s presenting issue, such as the threat
of eviction and consequent homelessness, and his or her underlying problems,
such as problems with claiming welfare benefits, leading to debt and consequent
rent arrears.
The term ‘holistic’ was also used to refer to collaboration between agencies,
for example, providing ‘holistic’ services so that clients could be referred on to
specialist agencies when appropriate. Chapter Six provides more detailed discussion
of this latter usage of the term, exploring more generally the development of more
collaborative approaches between different agencies across particular localities.
In this chapter the focus is upon holistic approaches to working with individual
clients.
“We’re interested in the clients ... they are at the centre of what we do”,
explained the administrator of one Law Centre, adding that “we deal with
vulnerable people” whose problems often overlapped. As a trustee in another Law
Centre explained, the ethos was about providing “a seamless path”. Others referred
more specifically to the potential overlap between mental health problems and
disability discrimination problems, for instance, or between benefits problems and
rent arrears, or immigration problems and welfare benefits and housing problems.
These types of problems needed time and patience to unravel and address. This
was particularly so when a client also had mental health problems or language
issues (needing an interpreter, for instance), which meant that even more time
and patience would be required. A number of those who had had experience of
working in private law firms suggested that Law Centres generally demonstrated
far more patience when working with very vulnerable clients. Law Centre staff
would also recognise that recovering relatively small sums (the example cited was
of £900 in a compensation case) could make a vast to clients’ lives if they were
managing on a low income, even if such sums could seem trivial to private firms.
43
Access to justice for disadvantaged communities
Other typical comments included similar reflections on the impact that Law
Centres could make both for individuals’ lives and for communities: “Making a
difference ... allowing people to exercise their rights.” “When I’ve done a case
[successfully] I’ve changed someone’s life”, an immigration solicitor commented,
explaining how asylum cases could and often did involve issues of life and death.
The solicitor who made the last comment had previous experience of working
in the private sector and drew comparisons between the ethos in each, while
recognising that there were also individuals and firms that did share many of the
Law Centres’ values and demonstrated this by providing pro bono advice sessions,
for instance.
Collective and preventative approaches to taking up common
issues in the pursuit of social justice
Although there was general agreement that Law Centres were not set up to
focus exclusively upon individual clients’ cases, there were some variations in the
emphasis given to the different aspects of this wider mission. Some highlighted
the importance of pressing forward the law itself to promote social justice, taking
test cases to strengthen legal rights for all (one lawyer described himself as a “legal
guerrilla fighter” for social justice). Law Centres were able to use legal remedies
to enforce rights – and to test and further develop rights – in ways that were
beyond the scope of other advice agencies; a unique selling point in terms of
their abilities to contribute to social justice agendas more widely.
Others emphasised the importance of community work in terms of public legal
education and policy work, typically preventative work. And some highlighted
each of these aspects. One person summarised this as: “The essence for me
personally, it’s about wider issues, to educate the local community and empower
them [in relation to knowing and accessing their legal rights]” .The Law Centre
was concerned to “empower people to do it for themselves”, a lawyer in another
Law Centre similarly commented.There were a number of examples of test cases
and of outreach and community-related work, including campaigning and public
legal education that had been undertaken in the past.
One such example was of a campaign with Women in Prison that had generated
a lot of work for a particular Law Centre. The campaign had been about trying
to maintain inmates’ homes while they were serving short-term prison sentences.
This was seen as being very important so as to ensure that they had somewhere
to go upon release. The campaign had resulted in some achievements .
Other examples of past policy work in other Law Centres had included taking
up homeless people’s problem of being unable to make contact with the office
outside office hours, even when they needed emergency accommodation. Using
the law to enforce the rights of homeless people, the Law Centre had enforced the
provision of a 24-hour helpline by the council in question. Another example was
the successful challenging of a council’s policy of not giving reasons in writing
for refusing accommodation to homeless people. Without reasons in writing it
44
Ethos and values
was very difficult to appeal a decision. As a result of the challenge, the policy was
changed. But there was little if any time for this type of policy work under the
current system, this Law Centre worker added.
Examples of test cases included one that had gone to the European Court of
Human Rights in Strasbourg. This was a test case about immigration rules as
they applied to a refugee who had temporary status but did not yet have settled
status. If that person married outside the country before getting settled status,
they could be refused the right of entry for their spouse.This was challenged as a
violation of human rights.The Law Centre lawyer involved in the case explained
that for him such cases were about “pushing the law to the boundaries” in the
interests of justice.
He gave another example of a case that he had taken forward to push the
boundaries. This was in relation to degrading treatment or torture, as applied to
a Roma child with disabilities, and the child’s access to appropriate education.
At the tribunal the argument that the case involved degrading treatment had
been accepted, in addition to the argument that it also involved the rights of the
child. The lawyer explained that he had had the time and space to take this case
effectively – and that such opportunities were what “really motivates”.
An example from another Law Centre was of a case that had lasted for eight
years, from the mid-1980s to 1992, ending up in the European Court of Human
Rights. This case had forced a change in the law to clarify that the dismissal of a
pregnant woman did indeed constitute sex discrimination.There were a number
of other examples of test cases from a range of Law Centres taking up cases to
clarify the law, to challenge discrimination and to extend rights in the interests
of social justice.
These were precisely the types of approach that fitted most readily with the
original Law Centre model – but least appropriately with the LSC funding
system. “It’s very hard to keep that initial ethos of the Law Centres going” while
meeting these targets, a lawyer explained.They needed to organise campaigning,
but there was no time to do this, he continued. “Even the simplest campaign
would be difficult now.” The experience of such pressures, and their impact on
staff motivation, are explored in more detail in later chapters.
Law Centres’ ethos: other stakeholders’ perspectives
Meanwhile, to what extent were the claims that were being made by Law Centre
staff and volunteers being reiterated by other stakeholders? There was broad
agreement across other advice agencies, private sector providers, local authorities
and other funders that Law Centres were making vital contributions in terms
of enabling people to have access to justice, regardless of their inability to pay
or other social disadvantages. The Law Centre was about “promoting equality,
justice, access and fairness for people who wouldn’t normally get access to legal
advice and support”, an advice worker in an ethnic minority community project
reflected in one city. “Strongly value led”, agreed an advice agency manager in
45
Access to justice for disadvantaged communities
another city, “with a strong fairness agenda” and ethical base that had impacted
upon decisions taken in her own agency (such as the decision that representing
landlords or employers would, in the agency’s view, be in conflict with the
commitment to work with tenants and employees).
Law Centres were seen as being “unequivocally there for the disadvantaged”,
in the view of an advice worker from another agency, who commented further
that “the respect that local community groups have for the Law Centre is huge”
and mentioned the Somali and Polish communities as examples.
“They want to help the most vulnerable”, commented an advice worker about
the Law Centre in a yet another city, who also pointed out that around twothirds of the clients came from areas that were among the 20% most deprived
localities in England. “The uniqueness of the Law Centre is that it is actually
accessible to all”, reflected an advice worker in another area. And “because it is
a community-based organisation you see all sorts of people there. People can be
intimidated by independent solicitors”, she continued, “because they dress, they
have a certain attire … whereas the Law Centre’s a lot more relaxed and [you
can] express yourself a little bit more, being in that environment does make a
difference.” The atmosphere was “less formal and less intimidating than many
private lawyers’ offices”, a lawyer providing pro bono advice sessions reflected
in similar vein. “It’s in a different style of seeing people”, which made the Law
Centre seem more accessible, in her view.
A former client explained how important this had all been to her, particularly
commenting on the support she had received. She had been in what she described
as “buckets of tears”, but felt that she had been listened to with great sympathy
as well as with professionalism. She did add that “I don’t think the building is
actually appropriate” (being in need of decoration and repair, in her view), but
this in no way detracted from the warmth: “from the time you know you hit the
door … you could sense the warmth of the individuals in there”.
The relatively informal atmosphere in Law Centres was in no way associated
with a lack of professionalism, it was argued more widely. As an officer based in a
funding agency commented:“Personally I value Law Centres very highly. I think
the services they provide are amazing.” Other stakeholders similarly commented
on the quality of the services that Law Centres were providing. “At their best
they’re excellent”, reflected an officer from a funding agency. Stakeholders,
including those in private practice, spoke of their confidence in referring clients
to their local Law Centre.
Stakeholders also commented on some of the challenges presented by Law
Centre clients, many of whom required considerable time and patience to unravel
their problems. An officer from a funding agency (with considerable personal
experience of Law Centres) emphasised this preparedness “to spend time with
clients, giving them that extra time and attention that makes them feel valued”
and enabling their often related problems to be unpicked. An advice worker in an
agency that collaborated closely with its local Law Centre similarly commented
on the particular needs of both their client groups, “We are there for the people
46
Ethos and values
who don’t manage”, and added that this was a very “needy group”. While the
aim was to empower clients and to “work to promote independence”, realistically
this wasn’t always possible, she added.
This willingness to give clients the time and attention needed to address their
issues holistically was contrasted with the ethos in many private sector firms.
They tended to be less patient, it was suggested, and particularly so in terms of
tolerating challenging behaviours from clients with mental health and/or alcohol
or substance abuse issues, for instance.A local councillor who had a background in
private legal practice commented, “I can’t tell you how different I think the two
environments are”, and explained that she had left private practice because “the
underlying driver in a city firm is inevitably money” (although she added that
there were, of course, private firms that provided pro bono legal advice, operating
from a very different value basis, far closer to the values of Law Centres).
There were a number of similar comments contrasting the ethos in Law Centres
with that in private firms. These included comments about the quality of the
services provided by some private firms, in some localities, in particular areas of law.
There was one exception, however: a comment from a lawyer with experience
of both private and not-for-profit sectors. She considered that clients were better
treated as “a valuable commodity”: “the whole level of courtesy is higher in
private practice” in comparison with not-for-profit organisations, which tended
to keep clients waiting if there was a queue. She pointed out that although it was
important to listen to clients carefully and respond holistically, it was important
to ask very focused questions and use time efficiently so as to get to the heart
of the problem.
The benefits of Law Centres’ local knowledge and policy
inputs
In addition to the ways in which they treated individual clients, Law Centres’
community base was also seen as an important factor, another of their unique
selling points. “They have grassroots knowledge, which is a key to our local Law
Centre”, an advice worker in one city commented. This local community base
was also valued by a number of local authority officers who commented on Law
Centres’ capacities, as a result, to contribute to policy development. One senior
officer reflected that Law Centres could play an important role in improving
decision making more generally. Through feedback from clients they could identify
areas where administrative procedures were inadequate, for instance, providing
valuable input. More systematic feedback, in this officer’s view, could strengthen
effective, outcomes-based accountability. Both the leader of the council and the
chief executive were interested in promoting such aims, he added.
Very similar comments were made by local authority officers in other areas
who expressed their appreciation of Law Centres that provided up-to-the minute
feedback on clients’ problems in the community as they arose. In one area the
Law Centre was described as “one of our strongest partners”, bringing clients’
47
Access to justice for disadvantaged communities
perspectives to strategic policy discussions. In this area the perspectives of people
who were experiencing poverty were seen to be particularly important, given
that the area had high levels of poverty and deprivation and that, as a result of the
recession, the problems were spreading to affect previously less affected groups.
Other examples of policy inputs included a review of homelessness in one city,
jointly carried out between the CAB and the Law Centre, each focusing upon
its particular areas of expertise.
There was also some appreciation of the fact that Law Centres and local
authorities could and did find themselves in conflict over specific issues and cases.
But this was not a reason for not funding Law Centres – on the contrary. One
local authority officer reflected that at the back of officers’ minds was the question
“Why should I be paying you to sue me? It makes no sense in the short term.”
However, he added that in the longer term, like complaints procedures in the
private sector, this was “essential and integral. You learn from the challenges, those
litigations, so it can help you improve your services, ensuring that those issues that
have arisen do not arise again. It is more cost effective.” As an officer in another
local authority reflected, the independence of Law Centres was important within
the wider context of the independent role of the third sector, the Centres being
separate from the local authority and therefore being able to act against it, if need
be, in the interests of clients/local people. While a number of local authorities
clearly shared these views, this was certainly not universally the case, as Chapter
Six considers in more detail.
Preventative approaches as part of Law Centres’ original
social justice mission
There was also widespread agreement over the potential importance of Law
Centres’ preventative work more generally.A local councillor commented that the
local Law Centre in her area included work with families to avoid homelessness.
This was to the benefit of the council (not having to pick up the tab) in addition
to benefiting the families themselves. The Law Centre in that area also had a
specific contract with the area’s key social landlord to do preventative work. As
a result of regular meetings with officers to identify problems and seek solutions
as problems arose, the number of evictions had been reduced from around 300
cases per annum to around 50 cases annually. Rent arrears had been going down
and tenant satisfaction scores had been going up.This was in “everyone’s interest”,
being cost-effective as well as being effective in social terms.
The same councillor referred to the value of preventative work around
education, challenging school exclusions. She pointed out that young people
excluded from school were disproportionately at risk of unemployment and,
indeed, of prison. Challenging unnecessary exclusions was therefore beneficial
for society as well as for the young people concerned and their families.
An employment lawyer who provided pro bono advice sessions at another
Law Centre stated that preventative work was being done in yet another area:
48
Ethos and values
preventing tribunals from becoming clogged up. This was because, far from
encouraging unrealistic claims, Law Centre staff gave clients very realistic advice,
advising them not to pursue claims that were very unlikely to succeed. In this
way Law Centres were contributing to the reduction of the work of tribunals.
More generally (not specifically referring to employment law), a number of those
interviewed also commented on the problems to be anticipated if fewer clients
were represented and so decided to represent themselves. Magistrates and tribunal
chairs typically much preferred clients to be represented, as this enabled cases to
be heard more expeditiously.
But, as Law Centre staff and volunteers had noted, under LSC funding systems
there was less scope for preventative work, or for policy work, community work or
public legal education, unless funding could be obtained via separate sources.There
were some fictions, in any case, about Law Centres’ wider role, which “wasn’t as
prevalent as it should be”, as one lawyer put it. While the local Law Centre had
in the past had a high profile in terms of campaigning on homelessness policies
and procedures, on housing conditions such as damp and on racial harassment,
a local authority officer commented, this wasn’t necessarily so evident in the
current context.
Similar points were made about Law Centres’ wider roles in terms of public
legal education and training, community outreach work and capacity building.
Here too, some of the public legal education and training work that was going
on was being facilitated as a result of separate project funding. Otherwise, in the
view of a senior advice worker who reflected upon her knowledge of a number
of Law Centres, they had “shifted away from this” because of the pressures of the
funding system for legal aid, even if they still espoused this wider role in principle.
Stakeholders certainly referred to examples of past test cases, as the previous
section has illustrated. But such cases seemed to be a diminishing feature of Law
Centres’ work in more recent times.
There were anxieties about a possible loss of vision more generally, as those
more directly involved also recognised, and fears that, in their struggles to meet
the requirements of the current funding system, Law Centres might be drifting
away from their original mission. “It’s very very hard”, commented a solicitor.
“I think in terms of [being] an employee it really demotivated me … we had to
move away from perhaps more complicated work where we could try and change
policy with local authorities”, she added, giving an example of preventative work
on tenants’ housing issues. “You know you want to help people”, she continued,
“you want to help the community, you are there because you don’t want to
make profit like a private firm, you want to make a difference and it seems that
the government is trying to squeeze that out of the community.” The solicitor
in question was in the process of moving on from a Law Centre to work for
another not-for-profit organisation.This leads us into a more detailed discussion
of the changes that have been taking place and the challenges that these changes
have posed for Law Centres’ ethos and values – the subject of following chapters.
49
FOUR
Challenges and dilemmas
The previous chapter described Law Centres, their ethos and values, setting the
context for the discussion of the impact of the Carter reforms to legal aid. As
Chapter Two has already illustrated, these reforms were the subject of considerable
debate when they were first proposed. Critics predicted that the results would
be damaging in a number of ways, potentially undermining poor people’s access
to justice and posing challenges and dilemmas for those engaged in providing
legal aid services. This chapter starts by summarising some of the evidence that
has emerged as the reforms have been implemented. This sets the context for
considering the impact on Law Centres more specifically. How did their staff
and volunteers experience these changes, what challenges were posed and what
dilemmas emerged? As the final section of this chapter points out, while the
Carter reforms were initially the major focus of concern, subsequent proposals
for legislative changes to legal aid became a more immediate focus, and posed
threats to much of legal aid funding. Later chapters explore in further detail the
challenges and dilemmas that were exacerbated as a result of the changes.
Recent research findings
Research studies on the impact and meaning of changes to the provision of legal
aid since the early 1990s have argued that the results have been ‘an irresistible
pressure towards routine, poor quality justice’ (Sommerlad, 2008, p 179) and that
opposition to the reforms was ‘pilloried as the product of either self-interest
or naivety’ (Sommerlad, 2008, p 182). While claims of self-interest may have
some validity, what Sommerlad argued was that the reforms were undermining
relationships based upon reciprocity and trust, substituting these for social relations
that ‘entailed the micro regulation of the legal aid practitioner’ (Sommerlad, 2008,
p 183). The end result was that professional autonomy was undermined and
increasing gulfs emerged between corporate firms, on the one hand, and those
undertaking legal aid work, on the other, mirroring the inequalities in their client
bases and, hence, in society at large (Sommerlad, 2008).
The focus upon competition and entrepreneurialism had perverse effects,
potentially reducing the supply of quality services for clients, it was argued.
“[T]he margins are so tight … and there are constant changes”, a senior partner
commented, “you just get exhausted”. In his view, this distracted from building
up a business plan, which was “a farce anyway because the goal posts are moved
and moved and moved”.This could result in firms deciding that it was ‘no longer
economically rational to practice legal aid’ (Sommerlad, 2008, p 184).
51
Access to justice for disadvantaged communities
For practitioners, the changes resulted in loss of morale. Increasing marketisation
led to increasing competition, which ‘creates bad feeling among people who
used to be colleagues’ rather than ‘promoting networking and collaboration’.
And the dissection of professional knowledge/work ‘and its recomposition into
precise, standardized (and hence measurable) tasks and sets of technical skills …
was viewed as primarily designed to achieve control of professional labour and
thereby cut costs’. As a result, “There is virtually no time for a human dimension
or real diagnosis”, a lawyer commented (Sommerlad, 2008, p 185).
In summary, Sommerlad concluded, marketisation was leading to increasingly
unequal outcomes. While recognising that access to justice in an adversarial
system may be expensive, these reforms targeted access for the poor, while
the law remained ‘an essential resource for the powerful’ (Sommerlad, 2008,
p 190). Corporate lawyers were doing well, while legal aid lawyers were feeling
increasingly squeezed.
Recent research has uncovered the impact of the changes on Law Centres. James
and Killick’s study of legal aid practitioners based in a Law Centre identified the
dilemmas that they faced in the context of their work on immigration cases (James
and Killick, 2010). The caseworkers whom James and Killick interviewed found
themselves ‘caught in the middle between these ever increasing financial pressures
and their ethical obligations to their clients’ (James and Killick, 2010, p 13).While
all of those studied had ‘a commitment, a belief in the importance of what they
are doing’, the authors argued, ‘many have begun to talk of disillusionment with
the system and weariness of the increasing pressures to work faster and deal
with more clients, with a concomitant diminution in the quality of the advice
and service they can offer’ (James and Killick, 2010, p 13). However worthy the
intentions of policies to ensure value for money and accountability for public
funds, the actual result of the reforms to legal aid appeared to be ‘undermining
universal access to expert legal advice, a vital element in personalizing what can
otherwise be a dehumanizing bureaucracy’ (in this particular case, the Border
Agency) (James and Killick, 2010, p 14).
Challenges and dilemmas for Law Centres
There are echoes of all of these arguments in relation to Law Centres, starting with
the challenges inherent in the Carter reforms’ fixed fees system, the administrative
systems involved and their operation in practice. These were seen as being
problematic for staff, resulting in negative effects on services to clients. There
were also concerns with the impact of the Carter reforms in terms of reducing
the scope for Law Centres to carry out their wider functions in communities,
such as public legal education and training and other aspects of preventative work.
Taken together, the changes were resulting in tensions and stress.
While these challenges were at the forefront, a number of staff referred to other
stress-inducing factors, including the rising demand for legal advice as a result of
increasing indebtedness and as a result of changes in public policies, such as those
52
Challenges and dilemmas
relating to social welfare law and immigration. It should also be emphasised once
again that the focus was shifting, as Law Centres and other stakeholders faced the
potential challenges of proposed legislation that would remove a number of key
areas of the law from the scope of legal aid. However challenging it had been
to provide legal aid within the context of the LSC’s funding system, it would be
even more challenging to try to continue to provide services without legal aid
funding in these areas of the law.
Financial and administrative challenges
Unsurprisingly, given the findings from other studies of legal aid provision more
generally, the fixed fees system was identified as a challenge, because it did not cover
the true costs of much, if not most, of Law Centres’ casework.While exceptional
cases did qualify for a higher rate, most of Centres’ cases fell in between the basic
and the exceptional case categories. As a result, there were pressures to focus
upon particular types of cases, either the simplest or the most complex. This put
a squeeze on the middle-level cases such as homelessness reviews, it was argued.
The LSC was clear that there should not be ‘cherry picking’ of cases to take
account of these pressures, as an administrator in one Law Centre reflected. But
in practice Law Centres were finding it very difficult to handle all potential cases.
So, for example, the employment lawyer in one Law Centre commented that
it could not handle employment discrimination cases because these tended to
take too long. The Law Centre did try to get a balance of cases, but was “torn
between the devil and the deep blue sea”. There were felt to be pressures for a
quick turnaround, on the one hand, versus the pressures of community needs, on
the other (including the need for test cases to be taken up).
As a worker from another Law Centre commented, the ethos was such that
there was a great reluctance to turn people away, “particularly because we don’t
get enough money out of their case”, which “would be an awful reason to turn
someone away”. The system was effectively turning Law Centres into behaving
“much more like a private firm”, “having to be much more strategic about the
cases we take on” and potentially leaving a great many people without effective
access to justice, seeing a “pounds and pence sign” over the heads of potential
clients as they walked through the door, as another staff member expressed their
fears. There were similar comments from the administrator of a different Law
Centre, who reflected that it had needed to work “smarter” and spend less time
with individual clients in order to meet the challenges of the funding system
for legal aid. Staff with experience of private practice had been able to provide
advice and support on this point, being more aware of and used to private sector
approaches in general, and to time management and recording time spent with
each client more specifically.
An officer from a funding agency commented that Law Centres’ preparedness
and effectiveness in pursuing cases, “taking cases in order to win them for people
that need this rather than to earn money from the legal aid system”, was, ironically,
53
Access to justice for disadvantaged communities
one of the reasons for Law Centres’ financial problems and why they were
threatened with going broke. In his view, this was not the most effective way to
get the most money from legal aid. The system of cost per case was riddled with
perverse incentives, he concluded.
Meanwhile, others pointed out that the fixed fee system was also problematic
in terms of the lack of provision for maintaining and renewing overheads, such as
computing equipment. In several Law Centres the lack of up-to-date equipment
was evident and added to the administrative pressures on staff.This was particularly
difficult to manage, as the Legal Services Commission’s administrative requirements
were viewed as complex and frequently changing – an issue that was frequently
cited as presenting challenges for Law Centre staff. A trustee in one Law Centre
commented in similar vein. She had attended a half-day training course for
trustees but still found the administration very complicated in practice, as did the
staff (despite having extensive previous experience as a manager in other public
service sector agencies).
The new administrative requirements were complex and the computer system
very difficult, and quotas changed from month to month. Compiling the returns
was very stressful, according an administrator in one Law Centre: “worse than
PMT”.And the financial arrangements were viewed as being very unsatisfactory in
other ways too. It was very difficult to plan because income varied from month to
month.There were also problems with the process of bidding for a new contract.
The term ‘Byzantine’ was used on a number of occasions, to describe different
aspects of the administrative processes involved.
The Legal Services Commission’s comments, in contrast
From the LSC’s perspective, the administrative requirements could be experienced
as challenging but were actually no more so, and possibly rather less so, than
the requirements of other agencies managing government contracts. Had the
requirements to become more ‘business-like’ posed tensions and dilemmas for
these other agencies? From the LSC’s perspective some Law Centres had not
been adequately prepared for the changes, it was suggested. But this was the reality
that had to be faced if legal aid resources were to be used most cost-effectively
so as to maximise the throughput of cases and reach the maximum number of
eligible clients.
Law Centres needed to manage themselves effectively – as some were – and
as some were learning from the experiences of others that were succeeding in
working with the fixed fees system. Financial incompetence was unacceptable.
Arguments about the difficulty/impossibility of operating viably within the fixed
fee system when working with diverse groups of clients did not stack up, in the
LSC’s view, given that some providers in diverse areas could operate viably within
the fixed fee system. For example, it was not necessary to use qualified lawyers for
every type of case and simpler cases could be handled by paralegal staff (working
under legal supervision). This was considered to be more cost-effective.
54
Challenges and dilemmas
There was no overall shortage of those seeking to bid for tenders, which
indicated to the LSC that the fixed fee system was not actually deterring potential
providers, at least in urban areas.The implication was that Law Centres that were
finding this all so difficult could usefully learn from the experiences of others
that were successfully providing legal aid within the requirements of the fixed fee
system. This could be achieved by becoming more business-like, it was argued.
Law Centre perspectives, in response
Becoming more business-like was clearly being required, then. But at what
costs? As has already been suggested, there was evidence that some staff were
now applying their previous experience of working in private firms, including
more business-like ways of organising and managing time, to their present work
contexts. Chapter Five examines this issue in further detail, identifying some of
the resulting dilemmas for Law Centres striving to survive in this more businesslike context – but without losing sight of their mission and ethos, and avoiding
becoming market-dominated in the process.
While some Law Centre staff and volunteers were evidently confident that
they had worked out how to operate successfully within the LSC’s requirements,
others expressed serious reservations, including about their independence as legal
aid professionals. “The independence is sacrificed ... the flexibility, the ability to
work in the way that you want to a reasonable extent is an absolute prerequisite
of the independence of a lawyer”, one lawyer argued. “A lawyer that has to say:
‘I can’t do any more because my funder won’t pay me any more’ is not a lawyer
who is independent. A lawyer who has to work on that case but not this aspect of
it ... if it’s a debt aspect or if it’s a benefit aspect, a housing aspect, an employment
aspect and you do this and not that, all because of the dictates of the funder, that’s
not an independent lawyer.That’s not a proper public legal service and that’s what
[has] happened to community law”, the same lawyer concluded.
Law Centres that were less dependent upon LSC funding were better placed
to cope with these challenges, it was pointed out, having more flexibility to
respond to needs that fell outside the LSC’s criteria in terms of eligibility for
funding. But reductions in local authority expenditure were widely anticipated
(local authorities having been significant funders for a number of Law Centres,
as explained in Chapter Two). There was likely to be increasing competition for
funding, including funding from charitable trusts, and “every year the cake is
getting smaller”, it was recognised.
Meanwhile, demand for services was increasing and was likely to increase
further as a result of public policy changes such as the (then) forthcoming changes
to housing benefit (which were expected to lead to increasing problems with
homelessness) and in other parts of the benefits system. A Law Centre advice
worker summarised the potential effects as “It’s going to be chaotic”. Others stated
that the law had been becoming increasingly complex in any case, adding further
challenges. This applied to a number of areas of the law, including immigration.
55
Access to justice for disadvantaged communities
Rapid changes also potentially posed challenges in terms of administrative
decisions, it was argued, leading to poor administrative decision making. One
lawyer suggested that spending on legal aid might be reduced simply by improving
the quality of decision making in areas such as social welfare law and immigration
law, as this would reduce the number of challenges to be made.
Legal aid, in the view of another lawyer, was focused upon going to court: “it
is all about dealing with things that have gone wrong”. He contrasted this with
the role that Law Centres ought to be playing, acting in more preventative ways:
“not having to raise a grievance, but knowing your rights”, so that people could
take these up in a self-confident and informed way. “If people are empowered at
the front end of these processes then they don’t have to resort to litigation later”,
he added. This theme of the value of preventative and policy work is explored
more fully in Chapter Seven.
An officer from a funding agency argued that Law Centres were prepared to
“spend time with clients”, “giving them that extra time and attention that makes
them feel valued”, enabling their often linked/complex problems to be unpicked.
As he pointed out, however,“legal aid doesn’t pay for this” aspect of Law Centres’
approach – that of identifying and addressing clients’ problems holistically rather
than taking each issue separately and as rapidly as possible. “At their best, they
[Law Centres] change lives”, he explained, “they get people completely out of
the hole that they’re in and mend them.” “They become self-sufficient, ceasing
to cost the state money.”
In one Law Centre, for example, outreach sessions were being provided at a
local community centre in order to reach women from particular ethnic minority
communities in “their own space”, where translation facilities were also available.
These were precisely the types of activities that were not covered by the fixed
fee system. Later chapters explore in more detail both these issues and the related
dilemmas that they posed for Law Centre staff and volunteers.
Exploring potential clients’ eligibility for legal aid under the fixed fees system
was a particularly sensitive issue for a number of Law Centres. Some Law Centres
preferred not to demand proof of eligibility from potential clients before they
could be seen, even though this sometimes involved more work subsequently, in
order to provide the relevant evidence for the LSC. Other Law Centres displayed
prominent notices explaining the need to bring evidence of eligibility. This was
an issue that required sensitive handling, however, if Law Centres’ reputations for
accessibility were not to be undermined.
One administrative worker explained: “I need to check people’s eligibility. I
need to ask them to bring documents on their first visit ... to prove ... as some
sort of proof of income”, which saves time, as clients don’t then have to return,
“or might not return with their documents”. “In a way it does make it more
efficient”, she said, but at the risk of diverting from “the problem that arrives
through the door”. She tried to be discreet, she explained, “to make sure that
they don’t feel they are being judged in any way … but also I don’t always have
the time to reassure them that if they don’t have the right income they will still
56
Challenges and dilemmas
be seen”. (This particular Law Centre had funding from the local authority that
enabled staff to provide at least some advice before filtering out those who did
not fit the LSC criteria for eligibility.)
A number of those interviewed also expressed concern about the potential
clients whose incomes/resources were such that they were just above the eligibility
criteria.They would be unable to afford private solicitors, and so would effectively
be denied access to justice because of their inability to pay. Such situations were
likely to increase, it was pointed out, if legal aid were to become even more
restricted along the lines of the legislation that was being debated in Parliament
at the time.
Education, training and development
As previous chapters have already explained, another of the particular distinguishing
features of Law Centres was their ability to provide specialist services and to
provide training for ‘first tier’ (that is, front-line) advice agencies working in
partnership with them and supporting agencies such as Citizens’ Advice Bureaux
(CABs), which would refer complex cases to the Law Centres. This was over
and above the public legal education work that Law Centres had been carrying
out in community-based organisations, schools and prisons, for example. But
the funding system was not conducive to this type of approach either. As one
administrative worker described the situation in one Law Centre, it was “living
hand to mouth”. Public legal education and training were among the aspects of
the work that were being squeezed as a result of the pressures, although there
were still collaborative relationships with the CAB (which had decided not to
compete in bidding for contracts). This particular Law Centre still managed to
provide regular training sessions for referral agencies, in order to update them
on changes in welfare law. But this was not the case all round. A member of staff
in another Law Centre commented that it was essential to keep up to date, “to
be at the cutting edge”, both for its own clients and to provide specialist advice
to other agencies. But its internal training budget had suffered and there were
reduced resources for training work with other agencies.
While these types of comment about reductions in opportunities for education
and training were widespread, it did emerge that there were still examples of
good practice in these respects.There were examples of collaboration, where Law
Centres were providing specialist advice and supporting other advice agencies,
for instance. Chapter Six addresses these aspects of Law Centres’ work and future
strategies in more detail.
Another impact of the Carter reforms was the reduction of funding to
provide legal training, widening access to the legal profession. Law Centres had
provided progression routes in these ways, enabling former clients, volunteers
and administrative staff to qualify as lawyers themselves.While the numbers were
relatively small, it emerged that these types of opportunities had been particularly
helpful for members of ethnic minority communities, enabling them to pursue
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Access to justice for disadvantaged communities
careers in the law. Examples of the importance of such opportunities are provided
in Chapter Eight.
Resulting tensions, dilemmas and stress
Both staff and management committee members provided illustrations of how
stressful the changes actually were, in their experience. Being in what felt like a
“state of crisis” was stressful in any event. People spoke of feeling trapped by the
challenges of survival from day to day, without the time to focus upon longer-term
solutions. “We’re in a very very difficult situation”, reflected a member of staff in
a Law Centre that was facing possible closure. “I don’t want to work anywhere
else; I want to work in this organisation”, he continued. “But I’m obviously very
very worried about the next three months.”
Insecurity emerged as a major source of stress. One young lawyer reflected that
“this has to be a big problem”. As a young person, she said, “you think, could this
job sustain me?” Although she felt that she was getting excellent guidance and
support and was very positive about working in the Law Centre, she explained that
“I’m worried about the future”. Others similarly pointed to what they identified
as “worrying levels of stress” as a result of these insecurities.
While so many of the stresses that loomed large for staff and volunteers related
to the then-current funding context, it is important to recognise that these were
not the only sources of tension. There were several examples of stresses related
to staffing issues, for instance, including conflicts within collectives (if collectives
found it difficult to address performance issues, for example). Where individuals
had come into collectives without being fully committed to collective ways of
working this had given rise to particular challenges, collectives not necessarily
being geared towards managing such problems effectively. This had generational
dimensions, it was suggested, some younger members of staff having grown up
with more individualistic orientations and correspondingly less understanding
of – or even sympathy with – more collective approaches.This issue of the extent
to which there were indeed generational differences is explored in more detail
later in this chapter and in Chapter Eight.
There were, in addition, examples of conflicts of interest within and between
communities as well as between staff, including issues where allegations of racism
had been involved. As in other studies, conflicts involving allegations of racism
have been some of the most painful issues to be addressed within teams and within
communities (Hoggett et al, 2009).1
Chapter Eight explores some of these issues in more depth, examining the
stresses that were identified as a result of the challenges faced and the dilemmas
that were posed for Law Centre staff and volunteers. Later chapters also reflect on
the survival strategies that were being adopted as Law Centre staff and volunteers
strove to safeguard access to justice for all – coping with the pressures to become
more “business-like”, as a number of those interviewed expressed it – without
jeopardising their underlying ethos and values.
58
Challenges and dilemmas
Meanwhile there was widespread recognition that Law Centres were “going into
difficult times”, implying the need for “hard and difficult decisions”. A number
of possible survival strategies were proposed – strategies that were subsequently
also recommended by a Cabinet Office report on ways forward for not-for-profit
advice services in England more generally, in the context of rising demands and
diminishing resources to meet them (Cabinet Office, 2011). But many of these
strategies were highly contentious, posing further ethical dilemmas for those
involved. For example, various forms of charging for services had been identified
as a possibility that might be explored with the Law Society. While this might
generate income and provide relatively accessible services to those who were
ineligible for legal aid but unable to afford a private solicitor, there were anxieties
that “this might be when it starts undermining the principles. How far do you go
down that road – who should pay and who should not pay? There are so many
tensions at the moment.”
Other possible options included developing partnership working with private
solicitors (already established in some cases, in relation to pro bono work for
instance, although in other geographical areas there was a dearth of lawyers
providing pro bono services). Another option involved taking on “no win no fee
work” (although there were anxieties that this could lead to “ambulance chasing”).
There was also some discussion of the option of setting up a trading arm, to
take on for-profit work in the city centre, for example, in order to develop ways
of cross-subsidising the Law Centre’s main work elsewhere with disadvantaged
communities. “I personally don’t think this would be a step too far”, one lawyer
commented, although recognising that “a lot of people would disagree with that”.
(In the event, a number of social enterprises were subsequently being developed.)
Others referred to potential practical difficulties, as well as raising more
fundamental objections in principle to such proposals. Law Centres have been
operating in very different contexts, covering both urban and rural areas, providing
services across different aspects of the law. Potential solutions such as charging for
some services, setting up a social enterprise trading arm, developing partnerships
with other agencies and with private solicitors, increasing the scope for pro bono
work and increasing the use of volunteers in partnership with local universities
may have been feasible to pursue in some contexts (as subsequent experiences
demonstrated), but were simply impractical in others.
While some of those involved with Law Centres expressed clear views either
for or against such proposals, in principle (rather than simply in practice) others
were less decided. “We are open to anything” to keep the Law Centre’s services
going, it was suggested in one Law Centre, for example. If one or more of its
particular areas of the law were taken out of funding, then alternatives would have
to be explored. The current uncertainty was “terribly draining though”, taking
its toll on morale. But expressions of willingness to be open to anything were
accompanied by expressions of specific reservations.The Law Centre in question
would not consider taking on cases for employers or landlords, for instance, as this
would be seen as being incompatible with the Law Centre’s ethos.
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Access to justice for disadvantaged communities
A number of dilemmas were faced, then, by those involved with Law Centres,
with parallels with the dilemmas faced by those concerned with the provision of
public services and with the public service ethos more generally. Some discussed
the varying ways in which they would reach decisions about such possible
developments, how they would set about drawing their own personal bottom
lines, balancing the need to operate in business-like ways with the importance of
holding on to their professional values and the Law Centres’ ethos. One trustee
(with extensive experience of public sector management across a range of different
service areas) also explained, however, that this sometimes felt like drawing lines
in the sand, and drew parallels with the ways in which public attitudes had shifted
more generally over time – citing the widespread acceptance of police officers
carrying guns, for example. What had seemed unacceptable at one time could
subsequently become the norm, she pointed out.There were continuing dilemmas
here, involving emotional labour on an on-going basis, as later chapters explore
in more detail.
Note
1
This has been the personal experience of the lead author in a number of different
contexts over the years.
60
FIVE
Public service modernisation,
restructuring and recommodification
‘The shifting boundary between private and public responsibility for social welfare
is one of the longue durée stories of Western history’, a number of commentators
have suggested (Drakeford, 2008, p 163). As previous chapters have pointed out,
the shift towards greater public responsibility after the Second World War met
with a concerted check following the election of the Thatcher government 1979
and the Regan administration in 1980. The future was to be one of ‘customers
not clients, purchasers not providers, managers not administrators, competition
not allocation, regulation not planning and equality of opportunity not equality
of outcome’ (Drakeford, 2008, p 163).
New Labour came to power in 1997 with the promise of modernising the
welfare state rather than further privatising it. Yet public service modernisation
policies continued aspects of neoliberal policy, it has already been argued,
attempting to use social policy to complement rather than to challenge market
imperatives (Page, 2007). As Chapter One has already pointed out, public service
modernisation was also accompanied by the increasing use of performance targets
and the promotion of private sector audit and management practices.
These forms of restructuring have typically impacted upon staff pay and
conditions (Whitfield, 2006), potentially undermining staff morale. They have
also been associated with the deskilling of professionals, reducing the scope for
the use of professional judgement. Standing has described these processes in terms
of ‘occupational dismantling’ – an ‘onslaught’ on the professions that is associated
with neoliberal agendas more widely (Standing, 2011, pp 38–9).
While critics have pointed to the potentially negative implications for public
service professionals and their clients, they have also pointed to the continuing
scope for human agency (Newman and Clarke, 2009). Public service modernisation
has been implemented in varying ways in different contexts. As Barnes and Prior
also suggested, both professional practitioners and citizens have the capacity for
counter-agency, as potentially ‘subversive citizens’ (Barnes and Prior, 2009, p 22).
But counter-agency is not without its costs. ‘Managing the volatile intersection
of needs, choices, resources and competing priorities will remain a site of intense
emotional labour’, it has been argued (Clarke, Smith and Vidler, 2006, p 159).
How do these debates apply to Law Centre staff and volunteers in the context
of the Carter reforms and subsequent proposals for change?
This chapter examines the impacts on Law Centres’ decision-making processes
and structures and their accountability systems, as well as the impacts on staff pay
and conditions in the more competitive climate.The flat organisational structures
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Access to justice for disadvantaged communities
of Law Centres, including flat pay structures, collective decision-making processes
and community representation have been under pressure.The chapter concludes
by focusing upon the particular issue of whether – and, if so, how – Law Centres’
should charge clients for services, a controversial issue that in some ways epitomises
the dilemmas that Law Centres have been facing as they strive to survive in a
competitive market while maintaining their underlying ethos and social purpose.
The Carter reforms and the new managerialism
The introduction of competitive tendering was accompanied by performancerelated targets, posing new challenges for Law Centres used to operating in very
different ways, as the previous chapter has outlined. As the chief executive of one
of a Law Centre’s partner agencies reflected, in his view the LSC had “bought
into New Labour’s performance management culture to an excessive degree”,
losing sight of customer care in the process. “It just went mad”, he added, “with
a macho culture which entirely lost sight of what the organisation was there to
do”, at some levels within the organisation, although not at the top of the LSC,
he continued, the leadership being committed to access to justice, in his view. A
long-serving member of staff reflected, in parallel, that the Law Centre in question
had gone “from being a provider of a social service, even though we are providing
legal advice and being a charity in that sense, to being a business”.
A recurring theme was how to avoid undermining the Law Centre’s mission by
“operating like a production line”, a “factory approach” as one Law Centre lawyer
expressed it, in order to meet the LSC’s requirements to obtain the maximum
throughput of clients. Legal aid work was “not like Tesco’s – it’s not like selling
baked beans”, he continued.
The pressures of centrally defined targets were similar to those experienced
by local authorities and by other voluntary agencies more generally, of course,
including those providing advice and related services.The chief executive of one
such agency commented that “If you high perform you’re going to attract a lot of
funding and when you have a lot of funding you can then deliver other things”
– and vice versa. So Law Centres “need to evolve and see themselves as a brand
and as a market” in order to attract more resources and so be in a position to meet
their social justice objectives. “Advice provision can become very commercial;
Law Centres need to be aware of that”, he concluded.
This all required a very different approach, it was suggested.“The challenge for
Law Centres is that they are going to have to become very very innovative …
they’ve got to change their model like we have had to and they can’t continue
with their socialist collective model”, was the view of an advice worker in a
voluntary sector agency that had a collaborative relationship with another Law
Centre.“We are led by a very business-minded director”, she continued, and while
he was driven by principles of community service, “he is business-minded first
and foremost”, submitting funding bids and bidding for competitive tenders. Such
arguments were not lost on a number of Law Centres, which decided that flat
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Public service modernisation, restructuring and recommodification
management structures and collective working practices were no longer viable.
Staffing structures needed to be revisited, along with staff pay and conditions,
while they strove to maintain their Law Centre’s overall ethos, supported by
effective team working.
Collective working
Collective working had been typical of Law Centres’ operation. In some cases this
had involved commitment to formal parity of positions and pay. In other cases
there was equality in terms of participation in decision making, but disparities in
terms of pay, depending upon levels of qualification and skill, for instance. There
were, in fact, a range of models, with variations over time. What these differing
arrangements had in common, though, was a shared commitment to democratic
ways of working, a commitment that stood in marked contrast to the hierarchical
systems associated with the New Public Management.
Although these forms of collective working had been much-valued features of
many Law Centres’ ethos from the early days, as previous chapters have already
indicated, collective ways of working were appreciated by some newer members
of staff too. Working in a collective way had taken some getting used to, several
commented, but it was seen as very positive to be treated with respect and “to
feel valued”, as part of the team. A staff member in one Law Centre reflected that
when she had first taken up her post she had found it difficult, if not impossible,
to contribute to team discussions, having been used to a hierarchy in the private
sector where the boss gave instructions without asking staff for their views. Now
she contributed freely to team discussions, taking “the bull by the horns” to raise
issues openly. In her view, this collective approach to working was an important
aspect of the Law Centre’s ethos, and it was important in terms of its effectiveness
too. She gave an example to illustrate the point.Around four years previously there
had been a threat of local council funding cuts. The staff had “all really pulled
together as a collective” strategically, as a result of which they had succeeded in
maintaining their funding – at least for the time being.
Given the value that had been placed on collective ways of working, it was
unsurprising that moving away from this had been experienced as very negative, in
a number of cases. Relatively recently, for example, one Law Centre had changed
from being a collective (in response to the need to address the implications of
the Carter changes), but this shift had been experienced as problematic and the
arrangement “didn’t really work”. The manager, who subsequently took over,
reflected that “demoralisation has been substantial” among the staff, as a result.
In another Law Centre the decision to move from a collective to a more
traditional organisational structure had actually been reversed. It moved from being
a collective to having a hierarchy for a couple of years, but this had not worked
so well. It therefore reverted to the collective, and this had been maintained over
the last 10 years or so.Any administrative problems or policy issues were normally
dealt with in staff meetings.While the LSC’s requirements were described as being
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Access to justice for disadvantaged communities
“administratively a pain”, the staff considered that “we do [this] quite well” here,
despite the constant changes to the LSC’s rules.
While collective ways of working had been very positively valued, there were
also examples of more negative experiences, as previous chapters have already
indicated. Working in Law Centres where collectives had not been functioning
effectively had evidently been frustrating and, on occasions, painful experiences.
If individuals lacked commitment, collectives could find it extremely difficult to
handle the associated performance management issues. One lawyer described the
first Law Centre in which he had worked many years previously as “a cantankerous
and argumentative collective mismanaged by a local management committee that
had no concept of how to drive a Law Centre.The whole thing was dysfunctional
to the extreme and actually fell to pieces about a year after [an unnamed individual
involved in management committee] left and had to be rescued”, he reflected,
adding that this Law Centre had indeed been effectively rescued and was “now
a wholly different organisation”.
The shift from collective to more traditional management structures was actually
experienced positively in some cases. As one manager described this, the Law
Centre was addressing the challenges while the staff was described as being “on
side”. They were actually relieved not to have responsibility for tendering and
financial management. “This lets them get on with the job they want to do”, the
manager explained, a view that was fully corroborated by the staff in question. A
lawyer in another Law Centre similarly explained that she was now the co-director,
a position that was developed some four or five years earlier, following the decision
to move away from a collective organisational structure.The collective had been a
positive way to work in many ways.“It was lovely in the ’70s and ’80s”, she added.
But there simply wasn’t time to operate in the collective mode now, given the
increasing pressures. Although the decision to shift from the collective structure
had been the subject of some discussion at the time, there had not been too much
conflict. In her view, people were now happy, being able to come in and get on
with their work, and leaving others to manage the financial and administrative
pressures that the Law Centre was facing.
Comparable views were expressed by a very experienced lawyer in a Law
Centre with a long tradition of working as a collective. This Law Centre did
not have a formal hierarchy but had brought in a part-time administrator with
directly relevant experience. “He’s fantastic”, the lawyer commented. Nobody
had wanted to take on the managerial responsibilities and he had taken them on
very effectively, in her view greatly benefiting the Law Centre as a result. This
seemed to combine the benefits of effective administration with the strengths of
good team working.
There were similar examples of such successful combinations in a number
of other Law Centres, including one Law Centre that had recently appointed
an administrator while maintaining a collective approach to overall decisionmaking. Having resisted such a move for a long time, the staff in this Law
Centre still saw themselves as working collectively – as the recently appointed
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Public service modernisation, restructuring and recommodification
administrator explained, he was the administrator working with the collective,
not the “manager”, and the staff would be deeply resistant to his being described
as the latter. It was similarly argued by the chief executive of a partner agency
that it was essential to have leadership, whether the person concerned was called
a manager or something else, and he added that “even in a collective it’s down
to leadership”; whatever the job title, that person needed to provide leadership
and, most importantly, to have the necessary authority and the confidence of the
staff. There were examples, then, of Law Centres successfully combining a clear
management structure with democratic team working in practice.
In summary, moving from one type of organisational structure to another,
to become more business-like, had been extremely challenging in a number
of cases. As one trustee reflected on the process overall, quoting the example
of redundancies as having been particularly problematic, it had been “a hard
road”. “But the question again is do you want to continue”, he added. “It’s all
about survival ... sometimes an organisation has to adapt to survive. People don’t
necessarily welcome this ... but sometimes you have to take hard choices …it’s
not a position that anybody would like to be in but ... we do want to be here
today and tomorrow.” “It’s like a hot air balloon”, he concluded, “you just have
to drop some sandbags. We’ve done that and we’ve faced up to that.”
Staffing structures
Staffing structures had also needed to be addressed. As one Law Centre manager
commented, Law Centres tended to be seen as “top heavy with lawyers” in
comparison with caseworkers. While this might have benefits for clients (being
seen initially by the most experienced staff, who were well equipped to diagnose
their problems effectively), it did not “sit easily with the funding system for legal
aid”. On the contrary, in fact, the LSC’s view was that simpler cases could be
handled effectively by paralegal staff working under professional legal supervision,
as previous chapters have already indicated. Journal articles had examined the
ways in which such staffing systems were being deployed (Makepeace, 2009) and
had provoked some controversy about different business models among those
concerned with the provision of civil legal aid services (Scott-Moncrieff, 2010).
It has been argued that there were parallels here with the polarisation that was
being identified in other professions, while ‘the legal profession is undergoing the
most profound restructuring (the use of paraprofessionals having been described
as providing cheap, standardized “Tesco law”) all professions are being pushed
in the same direction, of having fewer protected insiders alongside a growing
number of insecure career-less positions’ (Standing, 2011, p 50).
The solution of using paralegal caseworkers was being adopted, even in a Law
Centre that described itself as having “held out as long as we could” against the
trend. But it was described as having become inevitable in the current financial
climate, so that in this particular Law Centre caseworkers were being employed
and were paid less than experienced lawyers. While lawyers continued to be
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Access to justice for disadvantaged communities
self-servicing in some Law Centres (doing their own filing, for example), these
practices were also shifting in other Centres, with some staff trying to take on
more of the background administrative work in order to free up the lawyers to
concentrate on the more specialist legal aspects of the work.
Staffing costs, pay and conditions
Different views were also expressed about the pay and conditions of Law Centre
staff, and the extent to which these could or should be restructured. One view
was that many Law Centre staff were actually relatively well paid, with conditions
of employment that compared favourably with those of other public sector
employees. This was the view of one administrator, for instance, who felt that
it could not be justified in the current climate. Redundancies might also have
to be explored, he said, adding that “we’re not going to look the same as we do
now”, in the future.
Others expressed very different views, however. While some Law Centres
were considered to have had relatively favourable pay and conditions in the past,
there was also evidence that some staff were earning considerably less than they
would have been earning elsewhere, whether in the private or the public sector.
For instance, one lawyer explained that she would have been earning almost
double her current salary if she had continued to work as a legal officer with the
local authority. Another explained similarly that she had taken a significant pay
cut, moving from an academic job to work at her local Law Centre, and added
that she was in a position to do this because her family was now self-supporting.
Lawyers were not necessarily comparatively well paid, then, although relatively
flat pay structures may well have been more favourable for support staff in some
Law Centres.
The issue in relation to redundancies, as one trustee explained, was the question
of “are we treating them fair” ... “have their rights been taken into account ... has
the criterion been fair ... and if there were alternatives have we considered them?”
This trustee was only too aware that the staff in question had been producing
what he described as “quality stuff ”. A judge had recently commended one of
the solicitors on the quality of the preparation for a case, for instance. But it was
perhaps no longer feasible to give any one case such detailed time and attention
in future, in the trustee’s view.
As an alternative approach to containing staffing costs, salary cuts had been
applied in some cases, both in collectives and in more conventionally managed
Law Centres. A member of staff in one Law Centre explained that the previous
financial year there had been “a 10% cut in salary so we could keep afloat, so
that’s how we’ve managed to get by”. A 15% cut was under consideration in
another Law Centre. In yet another Law Centre a staff member described how the
collective had taken the decision to take a voluntary pay cut, a decision that she
had found very difficult, knowing as she did that some staff members would find it
particularly hard to cope on the reduced salary, given their family responsibilities.
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Public service modernisation, restructuring and recommodification
“It’s extremely difficult ... it’s not something you do lightly”, she reflected, pointing
out that the staff were not keen to “undermine our own employment rights”.
She drew parallels with the situations that affected other public service workers.
Public service professionals such as nurses were often depicted as “angels”, but
this was unhelpful, potentially trading upon their commitment, in her view. But
“they still have to pay the rent”.
Arrangements for holidays and time off in lieu had also come under consideration.
In one Law Centre, for example, staff had been working very long hours in order
to cope with the volume of work, and apparently amassing considerable amounts
of time off in lieu. This had been an issue that the management committee had
decided to address.
Long working hours without compensation in time off in lieu were widespread,
it emerged. For some staff, this was simply what they did in order to meet the
demand for services. “We work harder, we do more work in our own time in
the evenings”, explained a lawyer in one Law Centre. But this was a problematic
strategy, it was argued by others, when the result was staff time off for sickness
and staff burn-out. For some, the pressures became untenable, leading to decisions
to leave, despite their overall commitment to working for access to justice for all.
The issues of long working hours and unpaid overtime are more fully explored
in Chapter Eight, which addresses the dilemmas associated with such labours of
love both for paid staff and for volunteers.
Use of volunteers
In addition to developing more effective ways of organising the work, some Law
Centres were evidently finding ways of coping that included increasing the use
of volunteers and/or using volunteers more effectively. Volunteers could help out
with administrative work, for instance, and provide cover for reception work, as
well as providing casework support if they had relevant background knowledge
and experience (such as law students and recently qualified lawyers).There were,
in addition, examples of very experienced lawyers providing pro bono advice at
Law Centres, sometimes over many years.
As one respondent suggested, volunteers fell into different categories. There
were those volunteers who had recently completed a law qualification and were
keen to obtain experience.They generally wanted legal rather than administrative
experience and tended not to stay very long (which posed its own challenges
for Law Centres in terms of continuity of service provision). As employment
opportunities had been becoming more restricted, the use of volunteer lawyers was
described as beginning to raise additional issues. Such volunteering opportunities
could be described as unpaid internships.
This posed dilemmas in that it was widely argued that unpaid internships were
potentially exploitative and that people should be paid the rate for the job. As
a trade unionist involved with Law Centres reflected, Law Centres had always
relied on volunteers, but “increasingly it’s going to be exploitation of volunteers”,
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Access to justice for disadvantaged communities
and in the current situation “I’ve got no doubt they will be using unemployed
solicitors, who want to keep their hand in, which will be total exploitation of
those individuals and not fair for them either”. “It’s just the government getting
any kind of legal advice or legal support on the cheap, basically”, he concluded.
Despite reservations about the notion of unpaid internships, however, Law
Centres could be faced with increasing pressures to provide such opportunities,
raising additional questions about how to allocate them fairly, in line with
equalities considerations (an issue upon which the Law Centres Federation (LCF)
was providing guidance). One suggestion was that preference might be given to
those from local communities, young people without family connections in the
legal profession who might find it even more difficult to find a route into the
profession than those from more privileged backgrounds.
Overall, the economic downturn had meant that it was easier to find good
volunteers, and there was increasing evidence of competition for volunteering
opportunities. A recently qualified volunteer in a Law Centre reflected in
comparable vein:“I want to repeat that it is really difficult to get into volunteering.
Most of my friends say that it is really difficult because people expect you to have
this experience but how are you supposed to have this experience while you are
applying for a volunteering position? ... it is really difficult.” Volunteers were very
aware of the benefits of obtaining such experience, however, and contrasted the
benefits of volunteering in a Law Centre, which provided induction and training,
with the experience of volunteering elsewhere. One young volunteer reflected
that in the (private) firm of solicitors where he had previously volunteered,“they
don’t train you, they don’t induct you – you make the coffee and tea”.
In addition, there were volunteers who were students working for and
completing other qualifications, such as administrative qualifications. Some of these
were described as being “fantastic”, while others were described as being more
trouble to supervise than they were worth, in terms of their contribution.“Some
volunteer because they really mean it”, it was suggested, “but some volunteer to
fill a gap”, although it was also pointed out that volunteers often changed their
views through their experiences of volunteering in the Law Centre and coming
to appreciate its ethos.
There were also volunteers who provided very particular skills, such as
fundraising, for example. Here again, this was sometimes because they were unable
to find paid employment utilising their specific skills; one long-term volunteer
fundraiser explained, for example, that she was unable to find a suitable job despite
having a master’s degree in business administration. She had hoped that gaining
experience as a volunteer would assist in finding paid work, but this had so far
failed to materialise. “I would love to have a [paid] job”, she concluded, however
much she enjoyed volunteering at the Law Centre.
These types of volunteer (with particular skills and experience, developed over
a number of years) tended to stay for longer than did younger people embarking
on their careers, it was suggested – with potentially greater value for Law Centres,
which needed relatively long-term commitment. There were instances of Law
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Public service modernisation, restructuring and recommodification
Centres requiring volunteers to commit to three- or even six-month periods,
in order to maximise the benefits of unpaid labour, for example.Volunteers take
time and energy to organise and support, if they are to contribute effectively, a
point that was emphasised across the board by Law Centre staff, colleagues from
other agencies and lawyers in private practice. Unless they stayed for some time,
the benefits might be limited.The benefits of volunteering have to be reciprocal,
it was argued.
It was also suggested that, with time and resources, more could be achieved
through providing training opportunities for students. Some Law Centres had
on-going relationships with legal training agencies. A lawyer with extensive
experience of both Law Centres and legal training pointed out that this was very
important for two reasons: providing services to meet unmet need in the short
term, and also motivating law students to undertake pro bono work in their future
careers. Initially, the newer universities had been predominant in this field. Now,
however, the older universities were engaging too (maybe partly as a result of
wider pressures to include some reference to corporate social responsibility in their
mission statements).There may also have been pressures from students, in terms of
wanting to strengthen their CVs and so improve their future employability. If all
law schools provided this and reached even 50 clients a year, it could still make a
significant contribution towards addressing unmet need, it was suggested, as well
as having the potential to make major impacts on policy.
While this same lawyer/academic was enthusiastic about what could be achieved,
he also emphasised the importance of being realistic about the limitations.
Universities had to focus upon the educational aspects. So, for example, they
would not necessarily take on cases if similar cases had already been explored by
the students in question.There were also limits to the cases that could be taken on,
in terms of their complexity. There was no way in which this type of university
initiative could substitute for the provision of legal aid advice more generally,
then, although there could be important benefits, including the promotion of
pro bono contributions to Law Centres in the future.
Meanwhile, as has already been suggested, in some areas experienced lawyers
were providing regular advice sessions on a pro bono basis, contributing specialist
knowledge and skills. But this was not the case everywhere (with geographical
differences impacting upon the availability of potential professional volunteers).
And even where lawyers were providing advice on a voluntary basis, this was
generally only one aspect of the service (that is, providing advice but not being
available to follow this up, necessarily). In addition, lawyers generally emphasised
the importance of staying strictly within their own particular areas of specialist
expertise, as the law had become increasingly complex and subject to rapid change.
A property specialist might give advice on housing matters at an evening advice
session, just as an employment lawyer might advise employees. But there were
limits. Reflecting on a comment (made by another interviewee) that lawyers with
specialist knowledge of shipping law were volunteering in a local Law Centre,
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Access to justice for disadvantaged communities
a lawyer responded by describing this an “urban myth”. This simply wouldn’t
happen, in his view.
In summary, it seemed clear that volunteers could make significant and
potentially increasing contributions to the work of Law Centres and that this
could be mutually beneficial, helping to perpetuate Law Centres’ ethos and
mission in future generations. But there was no way that volunteers – whether
legally qualified or not – would be able to substitute for paid staff, for the future.
Furthermore, volunteers are not cost free: they require support and training.There
are parallels here with attempts to increase the use of volunteers in third sector
organisations more generally, with similar dilemmas about the uses and potential
abuses of volunteers and unpaid internships, where they may be substituting for the
employment of paid staff. Chapter Eight takes up some of these issues more fully.
The use of telephone and internet-based mechanisms for
delivering legal advice
One further strategy to address the pressures on Law Centres related to the use
of telephone and internet delivery systems.The LSC was interested in promoting
this as a means of increasing the cost-effectiveness of service provision, and so
were a number of local authorities, for similar reasons. It has also been an issue
of potential interest to Law Centres themselves, both in Britain and more widely.
In several areas there were joint electronic referral systems.This type of system
was described as being “very successful” in one area, contributing to joined-up
advice services in the city. A person accessing any one agency was effectively
accessing all the advice services as s/he could be referred on to an appropriate
agency if this was deemed necessary. It was also pointed out that electronic systems
could strengthen the contributions being made by lawyers providing pro bono
advice (facilitating more effective follow-ups).
Here too, though, there were limits to the strategy as a potential means to meet
the needs of Law Centre clients.A local authority officer who had considered this
reflected that while there was indeed scope for a telephone gateway system in
the area, it was important to acknowledge that when it came to the actual advice
needed, there were clients who “do really want to see a real person” face-to-face.
There were a number of reasons for this, including the difficulties that clients
with English as a second language might experience, especially if they had to
use pay phones to make contact. Telephone gateways and internet access might
work very well for some clients, but clients with complex problems and needs
(including mental health issues) would continue to need face-to-face contact
right from the start.
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Public service modernisation, restructuring and recommodification
Management committees/boards of trustees
As previous chapters have already indicated, the administrative requirements related
to the fixed fee system and the LSC’s targets were also in some cases impacting
upon the roles and compositions of management committees/boards of trustees.1
While some management committees/boards of trustees still retained community
and user community representatives, others were less rooted in these ways.This was
partly due to changes in the nature of communities and community organisations,
it was suggested (with fewer powerfully organised tenants’ federations and trades
councils than had been the case in the past, for instance).
But it was also due to the time pressures that were involved, together with the
demands for more specialist expertise, particularly legal and financial expertise. In
some cases management committee members/trustees were being approached on
the basis of the particular skill sets that they could bring, including experience of
management elsewhere in the public sector and/or in private practice.While this
was seen as a necessary response, there were concerns about the potential loss of
more community-based representation.“It is a challenge to keep the community
base while bringing in the expertise that we need”, as the community worker in
one Law Centre summarised this particular dilemma.
Management committees/trustees also spoke of some of the challenges that they
had faced, including the challenges involved in decisions about making members
of staff redundant and revisiting conditions of employment in Law Centres
facing financial crises. An understanding of employment law, in addition to the
requirements for other forms of management expertise, was key here. Somewhat
ironically, a trade union background emerged as an example of particularly relevant
expertise, in terms of providing the knowledge and experience to ensure that
procedures were fair and that employees’ rights were respected. It was “such a
horrible position to get into”. But “my job [as a management committee member]
is to get the best for the organisation while being fair to the people we employ”,
one trade unionist reflected – although he added that “fairness is a relative concept.
From a manager’s point of view it is perfectly fair to make people redundant if
you need to [in order to save the Law Centre] but employees obviously have a
different view about what is fair.”
Charging clients
As has also been suggested in previous chapters, the issue of whether to charge
clients for services emerged as particularly contentious, being seen by some as the
ultimate capitulation to market forces. For others, however, this was recognised as
a perhaps necessary concession as part of the strategies to preserve Law Centre
services in an increasingly challenging climate. One lawyer explained, for instance,
that at this stage it might be necessary to explore the case for making modest
charges in some areas if this was the only way to ensure access to justice. He
pointed out that any form of charging was potentially problematic, however,
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Access to justice for disadvantaged communities
risking undermining the Law Centre’s ethos (of open access to justice, regardless
of the ability to pay). Housing and benefits clients would be unlikely to be in a
position to pay, in any case, although there might be some scope for charging for
some immigration work, his colleague added, reflecting that she was “open to
anything, to be honest”, including setting up a separate trading arm if this was the
only way to “keep going for my clients”. In her view this would be a matter for
the Law Centres as a movement, however, rather than for any one Law Centre.
And she recognised that some people did have very strong objections to some
such proposals that were currently under consideration within the Law Centres
movement. Between them, these two lawyers summarised the range of views that
were prevalent at this period.
Among those most opposed to charging it was argued that “all the staff and all
the management committee members are really opposed” because “the ethos of
the Law Centre would be undermined”. Such a move would also put enormous
administrative burdens on the staff, as they would have to deal with a range of issues
such as VAT, for example, and it would be “running a business … not providing
for the community”, it was argued. “Is the price too big?” the same Law Centre
worker asked, to which he answered a clear “Yes”. For a lawyer working in another
Law Centre this was similarly an issue of principle, potentially “a resigning issue”.
However, views were shifting as time went by, an administrator in one Law
Centre reflected. Although the issue was deeply contentious it was definitely on
the agenda and becoming less hypothetical as the threats to the availability of legal
aid increased. Charging would be challenging to implement fairly, however, and
would require new structures, such as the establishment of separate trading arms.
The potential viability of charging was similarly questioned by other
stakeholders. The chief executive of a partner agency commented, “What makes
them think that they’ll make money?” What would they do if clients were unable
to pay? “It’s not the panacea that people may think, although it may help”, he
added. It might be more realistic, in his view, to set up a separate trading arm to
take different types of cases, if Law Centres were able to compete effectively with
private firms in their areas on both quality and price. As it was, funding from the
LSC was failing to cover the real costs of providing the service. But how many
Law Centre clients would be in a position to pay more than this, he wondered.
This point was similarly emphasised by a lawyer in private practice. Although
he was absolutely not opposed in principle to charging, he questioned what kind
of contribution clients on welfare benefits would actually be able to make. The
level of funds received through charging would be “chicken feed”, in his view,
and the bookkeeping involved in levying such charges would be “madness”, as
well as potentially impacting upon the relationships between Law Centres and
their clients in disadvantaged communities.
Finally, a lawyer in private practice who provided pro bono advice sessions in a
local Law Centre reflected that if the Law Centre were to start charging clients,
this might impact on her willingness to give her time voluntarily. “It [charging]
wouldn’t feel quite right.” Charging would also raise administrative issues such
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Public service modernisation, restructuring and recommodification
as in relation to insurance, for instance. Nor did she consider that setting up a
separate trading arm to cross-subsidise Law Centres’ legal aid-type work would
be a realistic option. Many private firms, such as the one in which she worked,
were already effectively cross-subsidising legal aid work, in the sense that this was
less profitable than their work in other areas of law. “Would I want to give my
time if it was being charged for – I don’t think I would”, she concluded.
So charging had been a hotly debated issue. As one lawyer explained, for some
of his colleagues in Law Centres this was “a slippery slope thing and if you tamper
with that not only do you lose your own integrity, but the public you serve will
start to see you as a money-making thing and not a community service. On the
whole I agree with that.” But, as he then went on to explain, “because I am not
a purist, because I am a compromiser and an acknowledger of complexity I don’t
think you can simply leave it at that. If the consequence of leaving it at that is
that you die and end up with no service I would say ‘hang on that is an awful
price to pay for simplicity and purity’.” As he then added, however, charging was
in some ways a “completely non answer”, in any case, given the target clientele’s
restricted ability to pay.
Over time, there was evidently greater acceptance across Law Centres that
whatever the problems, charging would need to be considered as part of any
future survival strategy. This chimed with the more general views expressed by a
trustee with wide-ranging experience of management in the public service sector,
views that have already been quoted in Chapter Four. In her opinion, public
policy reforms had been chiselling away at the public service ethos over past
decades. Public attitudes could be softened up to accept changes, she suggested,
and lines that had been thought to be firmly drawn could turn out to be lines
drawn in the sand.
In summary, pressures to become more business-like were resulting in significant
changes in the ways in which Law Centres were working, posing increasing
dilemmas as Centres attempted to hold on to their ethos and values. Some Law
Centres were finding ways to safeguard collaborative ways of working while
meeting the administrative requirements of the LSC, just as some Law Centres
were developing effective partnerships to provide more holistic services to
clients, despite the pressures to compete with other providers, as Chapter Six
describes in more detail. While there was continuing resistance to the processes
of marketisation, the ground was shifting, as the discussion of attitudes towards
charging has illustrated.
Note
1
The name varied, depending upon the particular arrangements in different Law Centres,
the term ‘trustee’ generally being applied to management committee members who also
had responsibilities as trustees of Law Centres with the formal status of a charitable body.
73
SIx
Conflict and competition versus
collaboration and planning
This chapter explores the pressures of increasing conflict and competition, on
the one hand, as against the challenges involved in promoting collaboration and
planning, on the other hand.The first section summarises the tendencies towards
conflict and competition that had impacted on Law Centres’ relationships with
other agencies in the past.This sets the context for the discussion of public service
modernisation, with its associated pressures towards increasing competition in
more recent times – despite New Labour’s attempts to promote partnership
working in parallel. The final section explores the countervailing strategies that
have been developed in a number of Law Centres, where the approach has been
to build collaborative relationships, with joint planning in order to deliver more
joined-up services aiming to meet clients’ needs more holistically as well as
more cost-effectively. This final section includes illustrations from case studies of
collaborative strategies, as were being developed in particular Law Centres such
as Avon and Bristol, Coventry and Nottingham, for example.
Pressures to collaborate or to compete
With public service modernisation creating increasingly competitive environments,
there have been inherent tensions for many third sector organisations which have
been required to compete for contracts, but also to collaborate, working with
partners to provide services most cost-effectively.As previous chapters have already
pointed out, public service modernisation agendas shifted under the New Labour
government, with less emphasis upon privatisation and competition per se and
increasing emphasis upon the importance of developing cross-sectoral partnerships
(although competition was still a significant feature) (Newman and Clarke, 2009).
As Alan Milburn has already been quoted as concluding, such partnerships were
to be ‘the cornerstone of the Government’s modernisation programme in Britain’,
‘central to our drive to modernise key public services’ (Milburn, 2001, p 33).
There were competing pressures, then, as third sector organisations struggled
to survive in an increasing competitive climate. Partnership working was being
promoted as a strategy for survival, but partnership working also entailed potential
risks, and particularly so when there were significant power imbalances between
the different partners involved (Balloch and Taylor, 2001; Glendinning et al, 2002).
Smaller organisations, such as Law Centres, tended to feel particularly vulnerable,
fearful of being swamped by more powerful partners, afraid that partnerships
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Access to justice for disadvantaged communities
(particularly partnerships involving the private sector) would undermine their
distinctive ethos.
Critics argued more generally that the shift from grant funding to contractual
funding could ‘be interpreted as a technology for exerting power over the
voluntary sector’ (Buckingham, 2009, p 235), promoting increasing marketisation
as the prerequisite for success in bidding for contracts as part of such partnerships.
There was a paradox here, Buckingham (among others) continued, given
that increasingly competitive markets had been shown to erode the ‘open
communication and collaboration that had previously been integral to their
[voluntary sector organisations’] work’ (Buckingham, 2009, p 248).
The notion of competition and collaboration as binary opposites belied the
real complexity of the situation, and third sector organisations found themselves
both competing and being encouraged to collaborate, while recognising that
collaboration might turn out to be tokenistic or worse, undermining the weaker
partners’ distinctive identities and values along the line. The reality was shifting
and complex for the voluntary sector, and especially so for smaller organisations
such as Law Centres.
Given their roles of challenging service providers on behalf of their clients
on the one hand, while engaging in preventative policy work (often with the
very same service providers) on the other, Law Centres’ relationships with these
agencies were already complex and frequently characterised by elements of both
collaboration and competition. And this was even before the advent of public
service modernisation agendas. As Williams (2006, p 2) points out more generally,
‘Competition and collaboration are integrally linked – two sides of a coin, though
the contentious side for VCOs [voluntary and community organisations] is
competition’. This was inevitably so, perhaps, with Law Centres, given their role
as advocates, enabling their clients to pursue their rights and challenge unfair
or inequitable treatment. Although a number of Law Centre staff commented
on the relatively collaborative relationships that they had developed with public
officials such as local authority officers, for example, they also recognised that
these relationships could become strained. Lawyers could find themselves crossexamining officers in court one day and then speaking to them on the telephone
the next, seeking collaboration on another issue. Such potential tensions were
inherent in their roles.
A management committee member from a Law Centre reflected as follows on
these paradoxes in the Centre’s relationships with other agencies (including the
NHS, for example). There was sympathetic understanding of the ways in which
organisations such as the NHS were experiencing their own funding challenges,
which impacted on their abilities to meet clients’ needs. Hospitals were under
pressure to move patients on, for instance, whether or not there was adequate
provision for care in the community. But it was important that such understanding
should not prevent the Law Centre from pursuing clients’ rights and entitlements
effectively. A staff member from another Law Centre commented in parallel that,
while understanding the pressures that colleagues in other agencies and services
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Conflict and competition versus collaboration and planning
were experiencing, “it was important not to let this go too far, or you could end
up colluding in a situation in which the client wasn’t getting what they needed”
(such as getting their housing repairs done, for instance). Sometimes agencies did
have to be challenged, she concluded, whatever the pressures on them.
In some areas it was clear that local authorities had uncooperative attitudes
towards their local Law Centre, in any case, and no intention of providing
resources, let alone collaborating. Such relationships were inevitably more
conflictual, although here too, in practice, there were sometimes complexities
and ambiguities. A staff member explained that the Law Centre in question had
collaborative relationships with particular local authority officers, despite the fact
that the councillors, in contrast, tended to see the Law Centre as “a thorn in their
side”. “A pain in the arse” was how a lawyer in another Law Centre described
local councillors’ view of the Centre. Even in this particular locality, though,
relationships with some officers remained generally positive, despite sporadic
conflicts of interest with policy makers.
There were also examples of situations in which a change of political control
following a local election had led to the breakdown of previously relatively
constructive relationships (although, in more than one case, a subsequent change
of political control had later reversed this situation). These relationships were
potentially fragile, then, and were expected to become even more fragile with
the impact of public service modernisation agendas, compounded by the next
round of public expenditure cuts, which were widely expected to impact on local
authority funding in the next financial year.
The impact of public service modernisation: an increasingly
competitive context
As previous chapters have already pointed out, one of the distinctive features of
public service modernisation agendas, and of marketisation agendas more generally,
has been the pressure to compete (despite parallel pressures from New Labour
to collaborate), competition being assumed to promote increasing efficiency
and choice. Many Law Centres had already had some experience of competing
with other agencies, such as the CABs. But the funding system for legal aid that
was introduced following the Carter reforms exacerbated previously existing
tendencies towards competition as agencies bid against each other for contracts.
The result could be staff mistrust between different agencies, especially in
cases where the larger advice agencies were seen as “predatory” when it came to
bidding for contracts. Other studies have identified similar widespread fears that
the contracting culture generally favoured larger VCOs (Milbourne, 2009) while
adding to the pressure on smaller ones.
Pressures to compete were being compounded by fears about how legal and
advice services would be funded (or not) in the future – described as a literal “fight
for survival”. A newly appointed Law Centre worker explained, for example, that
when he had joined the staff the focus had been on the LSC tender, a bidding
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Access to justice for disadvantaged communities
process in which the Law Centre had been successful. But the bidding process had
involved competition between different agencies, which he described as having
been a “kill or be killed situation”. One agency a few miles away was actually
going out of business as a result of losing out in this bidding process, while a
couple of other advice centres had closed in recent years, he said. He reflected
that he had been shocked by the competitive element, and concluded that, in his
view, this was not in the best interests of providing a holistic service in the area.
This example illustrates Milbourne’s premise that ‘Competitive funding and
performance frameworks embedded in local area commissioning undermine
collaboration and constrain innovative, front-line work, the very work for which
community-based organisations have gained positive reputations for addressing
social problems’ (Milbourne, 2009).There were disparities here between political
agendas that recognised the value of the voluntary sector, on the one hand, and,
on the other hand, funding systems that were apparently undermining their
unique value;– their ability to engage and work with diverse and disadvantaged
communities (Milbourne, 2009).
A number of those involved with Law Centres commented that the problem
was not only that the LSC funding system was not funding collaborative ways
of working. The system “actually drives wedges between organisations that
should be working together”.This view contrasted sharply with the LSC’s given
objectives for community legal aid, which stressed greater collaboration (including
the promotion of greater collaboration via the LSC’s proposals for CLACs and
CLANs). As another of those involved with Law Centres reflected, the reality
was that there were “potential tensions with other advice agencies” inherent in
the bidding process itself. So far, relationships had actually remained positive in
that particular area, “but pressures have been increasing, potentially leading to
more tensions in future”.
A stakeholder from an advice agency commented, in a somewhat more positive
vein on the on-going tensions between collaboration and competition, recognising
the potential for collaboration and partnership, as well as the pressures towards
increasing competition:
“There will be opportunities where we can work together and there
may also be times when we are ‘a bit pissed off ’ when the other is
delivering something that you wanted to, but after a few days you are
back to working together again. There is a lot of trust there but it’s a
complex relationship and also quite healthy that we don’t trust each
other completely. It keeps us on our toes.”
Collaboration could be advantageous, then, despite the countervailing pressures.
Where Law Centres and other advice services had already formed partnerships,
bidding processes were experienced less negatively, in that the partners had
positioned themselves in ways that made them externally more competitive,
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Conflict and competition versus collaboration and planning
being able to make collective decisions about sharing resources and developing
coordinated approaches to service provision.
Conflicting pressures
While there was evidence that Law Centres were experiencing increasing pressures
towards competition, the reality was more complex. There were also pressures
towards increasing partnership working and greater collaboration.These pressures
emanated from the top down, not only from New Labour’s approach to public
service modernisation in general and the LSC’s approach more specifically, but
also from other agencies, particularly local authorities, seeking to develop more
strategic (and more cost-effective) services in their areas.
But more collaborative approaches also emanated from the bottom up as Law
Centres and other agencies developed joint strategies based upon partnership
working. In an examination of the varying responses to the conflicting pressures
both to compete and to collaborate, experiences can be plotted across a wide
spectrum. Even where there were examples of successful collaborative partnerships,
stakeholders also recognised the pressures, and sometimes the necessity, of
competition. As a CAB director reflected: “One of the challenges is – when are
we partners and when are we competing?” In his view, while the CAB and the
Law Centre were “natural allies” and working closely within an advice network,
occasions had arisen when only one advice partner was needed in bidding for a
particular funding opportunity. He added that “as our relationship matures” they
would have to find a way to manage this tension.
There were other examples of this kind of complexity in practice. For example,
one Law Centre mentioned its involvement in capacity building and the provision
of specialist support to other advice agencies, such as CABs. However, this was
deemed problematic by others in the area, as some CABs saw themselves as being
in potential competition rather than in collaboration with the Law Centre in
question.
The LSC’s own interventions to promote collaboration and the development
of consortia were a relevant factor in this shifting policy context. As was pointed
out in Chapter Two, the LSC had aimed to promote joint bidding, through the
development of CLACs and CLANs. The piloting of CLACs and CLANs had
provided evidence of the challenges inherent in this type of top-down approach,
however, as Chapter Two has also illustrated.
In one area, for example, attempts to develop a CLAC had ultimately led to
less rather than more collaboration. This was despite a positive starting point. A
group of agencies had been working with the local authority in this particular
area, aiming to develop an advice partnership in order to provide a more holistic
service and improve referrals for clients.The main reasons given for the situation’s
implosion were that there had been insufficient time or resources to build partners’
relationships and this had undermined previously existing levels of trust, with
smaller agencies having concerns about being “swallowed up” by larger providers.
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Access to justice for disadvantaged communities
As Kail and Abercrombie have argued in relation to collaboration in the voluntary
sector more widely, successful collaborations require an investment of time and
money if they are to be effective (Kail and Abercrombie, 2013). In this case, the
problems associated with the lack of time and resources were further exacerbated
by uncertainties about funding, together with uncertainties about the future of
CLACs themselves.
In summary, many of those involved expressed severe misgivings about the
impact of the Carter changes for Law Centres in terms of the effects on increasing
competition – despite the LSC’s somewhat unsuccessful attempts to promote
collaboration via the CLACs and CLANs. It was suggested that the push to
become more managerial, entrepreneurial and ultimately more “business-like”
was not only in danger of radically changing the rationale of Law Centres. This
was also “fracturing the Law Centres movement”.
The failures of the CLACs and Clans raise further questions about what
conditions would needed in order to foster effective collaborative working.
Was this an approach that could be imposed, particularly in a climate of cuts?
Or would that be counterproductive? The effects of cuts, combined with the
pressures associated with public service modernisation more generally, were being
seen as undermining previous relationships of trust and the advice sector’s ability
to respond collaboratively to identifiable needs.
Alternative approaches: partnerships responsive to
community needs developed from the bottom up
There were examples of alternative approaches, however, where there was active
resistance to increasing competition from the bottom up, starting from the
recognition that different agencies had different areas of expertise – which could
be shared for mutual benefit. Collectively, it was argued, they could best meet the
needs of the groups and communities that they aimed to serve and collectively
they stood the best chance of survival. Law Centres were frequently cited as being
a fundamental and irreplaceable part of such wider advice networks, providing
a cornerstone of expert legal advice and recourse to justice. That these types of
strategies differed from the LSC’s approach was explained as follows: “We see a
broad range of services meeting the different need of different communities as
inherently a good thing”, and “We don’t think that centralisation is necessarily a
good thing when it comes to advice services”.
In other words, partnerships needed to start from responses to local needs.This
was contrasted with partnerships starting from the needs of the market – how to
succeed in winning bids on commercial criteria. Large national organisations could
offer economies of scale, winning contracts by undercutting smaller providers.
But large national providers would lack the local networks and the locally rooted
understandings that enabled smaller, more locally based organisations to meet
community needs more effectively, it was argued.
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Conflict and competition versus collaboration and planning
In one particular instance the agencies in question chose to promote a “stand
together – die alone kind of approach”. In doing so, city-wide they brought
together both the (relatively) larger advice agencies (including the Law Centre)
and the smaller, community-based agencies to form a network that collectively
gathered data and mapped access to advice geographically. They worked closely
with the local authority to help to develop the most effective allocation of
resources and to ensure that provision was responsive to identified areas of need.
This approach clearly also had potential implications for greater efficiencies and
savings, maximising cost-effectiveness. This example also highlights the scope
for building common ground between local policy makers and third sector
organisations where there were shared commitments to providing responsive,
‘joined-up’ local services.
These types of partnership from the bottom up seemed to offer win-win
solutions. Still, there were challenges inherent in such approaches– even where
there were already strong collaborative partnerships. One Law Centre worker
reflected, when describing a newly promoted consortium with the CAB and other
agencies, that this approach was “totally new to us. It could be a good thing. But
it could also cause tensions.” These challenges needed to be addressed.
In the areas that offered examples of the most effective partnerships, staff and
stakeholders tended to express feelings of improved morale and more positive
outlooks on their ability to contend with current challenges. For example, as one
of those involved explained, funding issues represented “a huge challenge. I think
the Legal Aid cuts are going to decimate huge sections of the country”, but in
their city the advice agencies had worked collectively with the local authority
and secured core funding which, he believed, would allow them to survive the
next three years at least.
Conversely, in an area where there had been significant competitive pressures
the consequent breakdown of collaborative networks had impacted negatively on
staff within the Law Centre as well as across the advice sector more generally. One
of those involved concluded that he would “love to have been able to describe
the situation in terms of the ‘Dunkirk spirit’”, all pulling together in the face of
external challenges. But this hadn’t actually been the case. On the contrary, the
pressures had led to internal divisions.There was “a lack of solidarity”, and more
mutual suspicion, both within the Law Centre and within the advice sector
more widely.
Key drivers for collaboration, despite the challenges
Genuine and effective collaboration has been notoriously difficult to achieve,
especially when this has involved collaborating cross-sectorally. As Williams
has reflected, ‘alliances require commitment, flexibility and a willingness to
share control’ (Williams, 2006, p 26), and with ‘clearly defined goals so that
all the partners can focus on an ultimate purpose’. Research into successful
collaborative models has also highlighted the need for those involved to work
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Access to justice for disadvantaged communities
on the processes required to develop such partnerships in the first place, as well
as working on the formal structural arrangements entailed (Flynn, 2007). As
Milbourne and Cushman’s research has similarly concluded, ‘cross-sector trust
can be generated and sustained in situations where time and effort are jointly
invested in understanding and learning from different approaches. However, this
demands significant investment in communication and co-creating purposes,
meanings and values in the project. It also demands the kinds of projects and
infrastructural investment which are currently being eroded’ (Milbourne and
Cushman, 2013, p 504). This finding was confirmed by the experiences of a
number of Law Centres.
Staff commented on the time and the resources that were needed to develop
collaborative partnership work. But the output-oriented funding system was
signally failing to provide for this. Networking with other agencies, groups and
community organisations had “gone” because this “takes time” and was not funded.
As a result, one Law Centre had become more isolated within its locality. The
situation had then been exacerbated by the process of competing for contracts, a
process which, it was argued, was undermining networking and cohesion across
the advice sector more generally.
This was reiterated in an area where, historically, the Law Centre had worked
with other local organisations in order to reach specific groups, working through
the local Women’s Advice Centre, for example, to reach a range of women in
the area. Law Centre staff explained that they would “have to cut back [on this
outreach work] because we don’t get paid by anybody for the time spent going
there”.This Law Centre had also been involved in a local forum of advice agencies,
including the CAB and a refugee centre.The forum was “struggling to continue
strictly because the time taken by any of us going to a meeting there which may
take three hours including travelling, this time we should be spending on worrying
about our own agencies and our own businesses and trying to keep them going”.
Despite these challenges, there were examples of Law Centres that were still
developing collaborative ways of working, building partnerships in order to meet
community needs most effectively, and identifying resources to enable them to
build such partnerships in the first place.Their reasons for doing this – the benefits
of collaboration – were cited (in no particular order) as follows:
• sharing resources, and thereby using resources most cost-effectively
• sharing expertise, and effectively building capacity in the process
• improving the ability to formulate stronger projects and to bid for funding
for these more effectively
• developing more effective systems for cross-referral
• consolidating data, creating fuller evidence on local needs and on the take-up
of services within the area
• improving staff morale as a result of not feeling so isolated
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Conflict and competition versus collaboration and planning
• strengthening strategic responsiveness, rather than remaining trapped in reactive
‘fire-fighting’ and, most importantly,
• resulting in better, more holistic services for the clients.
These resonate with research findings on the reasons for developing collaborative
relationships within the voluntary sector more widely. For example, Williams
(2006) summarised the advantages of developing alliances as the abilities to:
•
•
•
•
•
achieve strategic synergy
increase the speed of operations
share risks
share resources, technology and management systems and
increase the range and scale of activities through increased abilities to secure
new contracts.
The role of local authorities in promoting collaboration
In response to both the competitive funding environment and the need for
greater efficiency, Stuffins (2011) has suggested that ‘more unusual or innovative
collaborations could be encouraged by local authorities. With their own overarching view of the voluntary sector in their area, councils are uniquely placed
to help facilitate these partnerships’.
The role of local authorities and their approach to the advice sector emerged
as significant factors in the case study areas’ resilience in contending with current
challenges. In a number of areas the local authority was viewed as being directly
responsible for whether competition or collaboration between agencies was the
pervading influence. For example, a councillor in one case study area reflected that
“we’ve always believed in partnership” and therefore had a strong commitment
to this. The Law Centre was pivotal in this approach to ensuring that the most
disadvantaged could have “access to legal remedies and some sort of justice”.
The councillor described the then current situation as “the most challenging
circumstances we’ve ever been in”, and concluded that there was consequently
a distinct need “to pull together and support each other”.
In another city an advice agency representative described the local authority’s
approach to commissioning advice services in similar terms. He explained
that “There is understanding that there is a better way to commission than
straightforwardly competitive tendering and that it’s important to take a more
strategic approach to advice services as a whole in the city.” This had enabled and
supported the agencies in their efforts to “make things work better with clear
pathways that all of the agencies use”. This was seen to provide a better service,
ultimately, for those seeking advice at any single agency or point of contact. The
impetus for this had partly come from the local authority in question, but there
had also been a strong push from the agencies themselves; an attitude described
as “let’s do the best that we can with it” in the interests of the clients. One of the
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Access to justice for disadvantaged communities
frequently cited motivations for collaboration was in fact precisely this last point
– improving services and access to them for those most in need.
Coordinated bids for resources
Through collaborating, advice networks were succeeding in obtaining additional resources,
as well as ensuring that existing resources were being used most effectively. In Nottingham,
for example, Advice Nottingham obtained funding from the Big Lottery that enabled the
umbrella organisation to develop its collaborative partnership.This, it was explained,“enabled
us to come to the position we’re in now” as a well-established consortium.Together with the
council, it had identified gaps in provision, developing joined-up services to meet the needs
of different areas and client groups. Having funding to build the consortium also enabled the
organisations involved to be “ahead of the game” in terms of putting in other funding bids.
It was planning to bid for additional resources to develop its website, for instance, using
information technologies to provide a single reference point for clients covering all of the
services provided by Advice Nottingham partners.
Advice Services Coventry had similarly obtained additional funding, in this case from
Neighbourhood Renewal Funding as well as from the Big Lottery and the Baring Foundation.
In total, Advice Services Coventry had already obtained almost £1,000,000. These funding
resources enabled it to fund a coordinator to develop the partnership. It too had developed
a joint electronic referral system that was described as being “very successful” in maximising
the effectiveness of advice provision in Coventry. Like Nottingham, it had also developed joint
training, another way of ensuring the most effective use of resources.
Advice Centres for Avon had also obtained funding from the Big Lottery and the Baring
Foundation, enabling the organisation to fund three posts. These three staff members built
relationships with funders, developing consortia bids as well as developing collaborative work
more generally.Together, the Advice Centres built a library of resources relating to common
policies and procedures, further contributing to the development of coordinated service
provision so as to meet advice needs holistically.
Local authority staff themselves gave a number of reasons for working with
existing providers to support a collaborative approach to the commissioning and
provision of advice services. These overlapped to some considerable extent with
advice agencies’ own motivations and included the aims of:
•
•
•
•
•
•
providing more joined-up services
offering clients better coverage
facilitating cross-referrals
avoiding conflicts of interest
targeting provision for specific groups
sharing resources and expertise and deploying limited resources more effectively
and
• supporting the voluntary sector more generally.
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Conflict and competition versus collaboration and planning
A genuine partnership approach would clearly require both leadership and
buy-in from the agencies involved, as fully active partners. Law Centres were
frequently regarded as lead or key partners in these types of networks and were
appreciated as such for their core values and ethos. As an advice centre worker
commented, reflecting on the role played by the local Law Centre manager, she
had been “selfless in putting herself forward to represent all of them [the advice
agencies involved in the partnership] and the work they do”, rather than simply
representing the interests of the Law Centre in question. “We’d be lost without
them”, reflected another stakeholder, recognising the importance of Law Centres’
specialist expertise. Similar comments were made by local authority officers,
concerning Law Centres’ pivotal roles.
Local authority officers recognised that while there may sometimes be tensions
(when Law Centres supported clients in making complaints against the local
authority, for instance), Law Centres’ independence had been vital. This was
not only because Law Centres ensured access to justice for individuals and
communities. It was also because they could contribute to policy development,
leading to service improvements more widely. Some local authorities clearly
valued these aspects of Law Centres’ independent roles, despite the potential
tensions that needed to be managed. A local authority officer reflected that a
better exchange of information between the local authority and the Law Centre
could actually lead to systems change, thereby reducing the problems that had
led to complaints in the first place:
“Where there is a tension is probably around the tackling discrimination
service where you get cases that are against the council and actually
what we would like is to have some anonymised information about
the types of cases against the council so we can use that to learn from
it and actually think about stopping things from happening rather
than a number of cases going in and actually the legal challenge being
taken all the way.”
In several areas, the local authorities in question had either recently undertaken a
strategic review or were in the process of doing so. In these instances the strategic
reviews included concern to promote precisely such preventative approaches – as
well as concerns, of course, about questions of efficiency and the most effective
use of diminishing resources. In summary, these strategic reviews focused upon
supporting collaboration between the different advice agencies within the local
authority area and promoting greater integration, with clear definition of roles
based on differing fields of expertise and different areas of geographical coverage.
In one pertinent case, for example, a local authority representative explained that:
“We have commissioned them to join up better and to think about
strengths and not duplicate. They have thought more about where
they deliver and who to and defined themselves or extended and
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Access to justice for disadvantaged communities
developed more. There are some natural geographic boundaries but
they have had to look at joining up better.”
This was underpinned by the local authority’s commitment to the advice sector,
ring-fencing funding and resisting what was seen as a premature “move to joint
commissioning” via the LSC’s promotion of CLACs and CLANs. The local
authority’s resistance had been due to its awareness of the needs of the network
of advice provision and its desire to build capacity in the sector before the new
commissioning approach was implemented.A local authority officer commented
that “because we worked with the sector and the advice network and we went to
consultation with the sector” it was a lengthy process, but one that had paid off
in that “there has been a real change through this process”, with the result that
“it feels far more like a partnership now rather than us and them”.
For a number of local authorities and advice sector agencies the ideal scenario
was described as “customer focused”, with the client having access to advice
at any point across the advice network. The client would then be referred to
the most appropriate agency, depending upon their individual needs. This type
of advice network recognised the vital role of the Law Centre as the source of
specialist legal advice and support, underpinning the advice services that were
being offered across the rest of the network. In several instances where this type of
joined-up service had developed there had been investment in setting up shared
systems for monitoring and referring clients.This had additional benefits for the
local authority and for the advice sector overall in that it was building a more
comprehensive picture of the levels of service needs and service usage.
This all contrasted with areas where there had been a tendency for greater
competition and less collaboration. In such areas, typically, there had been lesssupportive relationships between Law Centres and their local authorities. These
tensions had been exacerbated with the introduction of competitive tendering.
As one Law Centre staff member described the situation:
“Competition has crept in; we’re all competing for the same pot of
money – a typical example is the CAB and the Law Centre competing
for funding from the local authority and so the question is: whose
bid is better? You have to make an assessment on whose bid is better
and how much they get. Sometimes you split it down the middle and
you say OK, half each. But in another situation there’s just £10 on
the table, only one person’s going to get it so it’s going to be winner
takes it all. And it is going to be on the basis of a bid.”
The consequences of a solely competitive approach driven by a scarcity of
funding undermined the possibilities of an integrated advice sector providing
complementary services. Instead, such an approach seemed likely to favour the
survival of some agencies at the cost of others.This was precisely why some local
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Conflict and competition versus collaboration and planning
authorities had opted for a more collaborative approach to commissioning advice
services, aiming to develop more strategic approaches to meeting local needs.
Collaboration and planning from the bottom up
Bristol City Council was one among a number of local authorities that had developed strategic
approaches to the provision of advice services in the area. Together with South Gloucestershire
local authority it had been critical of the proposal for a CLAC pilot, arguing that such a topdown initiative would potentially cause “damage to community control and accountability”.
Instead, Bristol City Council worked with the Advice Network (Advice Centres for Avon) that
had been established under the Law Centre’s leadership to agree on joint measuring tools
in order to build a comprehensive picture of advice needs and services across the city. This
approach, building from existing networks, “seemed to work”, in the local authority’s view,
providing the information that council officers needed in order to plan their commissioning
and funding processes effectively to meet local needs.
This planning process was lengthy and difficult at times, as a council officer explained, and there
had been “some friction”. But the end result had been positive. This was a real partnership,
rather than an “us and them” approach. Each provider had its own identity, “which is one
of the things that makes it an interesting and vibrant sector”, the officer concluded. Gaps in
services for particular areas, such as areas in the east of the city, had been identified in the
process.The commissioning process that followed took account of the need to address such
gaps, along with the need to ensure clearer access points for clients more generally. The
end result was that providers put in their separate bids in complementary ways, focusing on
clients’ needs. “I think the way forward is collaboration”, one of the stakeholders concluded,
reflecting on the process and the outcomes overall.
Similarly, when reviewing its strategy for providing advice services, Coventry City Council
had consulted with Advice Services Coventry, a network of advice agencies that had been
working together “to coordinate the delivery of advice services in the city” with the aim of
providing “seamless service pathways for clients”. Here too the Law Centre played a leading
role, along with the CAB. The different agencies had developed ways of coordinating access
for clients and clarifying referrals between generalist and specialist providers.
In Nottingham the local authority had decided to collaborate but “stay on the outside” as
a partner with Advice Nottingham, the umbrella organisation that facilitated coordination
between the Law Centre, the CAB, Shelter and other advice agencies in the area. These
organisations had previously competed against each other for funding, before deciding to “get
ahead of the game” by collaborating, developing a consortium rooted in their shared ethos
and values.They worked closely with the local authority, aiming to create a joined-up service
comprehensively meeting clients’ needs. Here too, the Law Centre was fulfilling what other
stakeholders described as a “tremendous role”, providing leadership and specialist expertise.
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Access to justice for disadvantaged communities
Collaborating, competing with or becoming more like the
private sector?
If partnership working with local authorities and other service providers was
potentially challenging, collaborating with private sector firms was even more
so. How to maintain Law Centres’ distinctive ethos in the context of increasing
marketisation? There had been pressures on Law Centres to become more business
oriented in any case, as previous chapters have already argued.
For a number of critics (Buckingham, 2009; Milbourne, 2009), it was the pressure
of the then current policy and funding regimes that was eroding the voluntary
sector’s autonomy and ethos, which were fundamental to its ability to deliver
effective community-level services. As Buckingham has commented, ‘Concerns
have been raised about the erosion of the voluntary sector’s autonomy, its capacity
to campaign for social change and its ability to engage local communities’
(Buckingham, 2009, p 235). This dilemma had been summed up in a report
commissioned by the Institute for Voluntary Action Research which found that
the impact of public service reform on voluntary sector organisations was that
‘some organisations have been drawn by the availability of funding away from
community development and community responsiveness towards delivery of
public services and services designed externally rather than in direct response to
local need ... in making this shift, their potential to act as agents of community
change or as advocate for local people has been diminished’ (Cairns et al, 2006, p 6).
The pressures to become more ‘business-like’ link to the more specific question
of the nature of Law Centres’ relationships with the private sector itself: were these
relationships characterised by competition or collaboration? There were questions
as to whether Law Centres either could or should compete with private firms
of solicitors; competing “on the basis of price was a no-winner”, it was argued,
unless they were to accept poorer conditions of employment and lower wages,
while reducing the time and attention given to clients. These issues have already
been considered in more detail in Chapter Five.
By contrast, however, there were instances where Law Centres did actually
develop collaborative relationships with private legal practices. For example,
one Law Centre cited a number of connections with private firms, including
referrals from them based upon the Law Centre’s specific expertise in welfare
law and employment law. Some of these firms also offered the Law Centre pro
bono work, doing surgeries, for instance, as part of their commitment to social
responsibility. There are parallels here with experiences in the voluntary sector
more widely, as Harris (2010, p 3) has pointed out: ‘many businesses are actually
dependent on cooperation from the VS [voluntary sector] in order to implement
their CSR [corporate social responsibility] policies. This raises questions about
the implications of the relationships with business for VSOs [voluntary sector
organisations] themselves’, however. In the Law Centre examples there were
situations in which this type of relationship could be considered mutually
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Conflict and competition versus collaboration and planning
beneficial – as well as examples to the contrary, as previous chapters have already
outlined.
There were evidently benefits for private firms when such arrangements
enhanced their corporate image, at the same time enabling their staff to gain
useful experience, with the added possibility of new clients being referred to
them, as Chapter Eight considers in more detail. This type of experience was
echoed by a stakeholder who, as both a local councillor and a solicitor, had a
critical understanding of the motivations of both the private sector and Law
Centres. He explained that he used to do a voluntary weekly session at an income
rights centre (subsequently the local Law Centre) and was supported in this by
the private firm for which he was then working. This relationship was seen to
be mutually beneficial, making a useful contribution to the wider society and
facilitating referrals between agencies. He felt that there was considerable good
will and positive motivation within private practice overall. He himself had
become a lawyer in order to be able to help people, and he stressed that some
lawyers within the private sector were motivated by similar ideals to those that
motivated Law Centre staff.
As previous chapters have suggested, however, this was far from representing
the whole picture. This particular councillor–solicitor also commented that the
Law Centre was filling a gap that was not compensated for by law firms doing
legal aid work and added that while 15 years previously someone could walk
into a private law firm and get legal aid and the advice they needed, this was
no longer the case. His view was that “access to justice has become increasingly
more difficult for many people” as a result of a “terribly bureaucratic system that
is more interested in processes than outcomes”. In his view, opportunities for
future collaboration with private firms were inherently limited.
A Law Centre staff member who had previously worked in the private sector
commented in similar vein that there were advantages to collaboration with
private sector firms, but the limits also needed to be recognised. In her view,
“there are some good things about working in the private sector ... because it’s
profit driven it has to be very very efficient”, and “I think that Law Centres can
learn from that”. “Actually there are ways of doing things ... it’s about taking the
best [practice]” and applying this to Law Centres, she concluded.
She recognised that this was not a view that was necessarily shared with other
Law Centres, however. “Historically it’s been seen as a bit of a ‘them and us’
situation ... with some competition.” She referred to fears among Law Centres
about whether working more closely with private firms “might make them turn
into one”, eroding Law Centre values and ethos in the process.
Overall, despite the reservations of so many of those working in Law Centres,
there were in fact a number of instances where there had been positive
collaborations with private sector firms. For example, one Law Centre had a
partnership with a private practice that involved solicitors giving advice on areas
of law that the Law Centre didn’t cover. It was explained that “It’s a good and
positive arrangement that benefits the community” and, on a reciprocal note, the
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Access to justice for disadvantaged communities
work with the Law Centre was part of the firm’s approach to social responsibility.
In broader reflection on this, the conclusion was that Law Centres could also
develop other partnerships and still keep their local roots. These were “difficult
times”, but this was also an “opportunity” and “an impetus to change”.“You can’t
go on delivering services as we did in the 1980s”, in any case, it was argued. “We
do need to be optimistic about ourselves and our ability to meet the challenges
of the 21st century.”
In one city the Law Centre manager described how it had come to be in a
delivery partnership with an established private firm of solicitors and a CAB. He
explained that before the partnership was established they would have regarded
each other as competitors and that “under normal circumstances we wouldn’t
have looked at each other”. In this new and more challenging context, however,
they could see the benefits of collaborative approaches. They each had areas of
specialism, and for each there were areas where they were not in a position to
provide services. But, between the three partners, they were able to provide the
full range of services. So, for example, the Law Centre was delivering welfare
benefits provision at the private solicitors’ offices and the CAB offices and the
CAB was providing debt advice at the Law Centre. The Law Ccentre manager
commented, in conclusion, that “it’s been a success: each of us provides a full
service in each centre”.
In providing the rationale for this particular partnership, the Law Centre manager
explained that he had sought to identify the Law Centre’s nearest competitors
and had then proceeded to explore ways in which they could collaborate rather
than compete with each other. Before the tendering process for the next round
of services was completed, the three partners had signed a memorandum of
agreement. Once they had won the contract for this next round of services, they
had proceeded to develop a more formal partnership agreement and cooperated
increasingly on a range of related issues. There was “additional value for us all”,
in the manager’s view, with scope for developing further forms of collaboration
in the future.
There are parallels here with findings from previous research. For some, the
current challenges facing the voluntary sector generally, with a blurring of
sectoral boundaries and practices, offered opportunities such as ‘the disciplines of
marketing and strategic management’ (Williams, 2006, p 2). For others, in contrast,
they raised new questions, including questions about the costs and benefits of
inter-organisational relationships, how partnerships could combine sectoral
competencies and, overall, whether new partnerships could effectively improve
services (Entwistle and Martin, 2005) without undermining organisations’ ethos
in the process.
In summary, while there have been powerful pressures towards increasing
competition among advice sector providers, this has been far from the whole
story. Despite the tensions, complexities and challenges involved in developing
partnerships – especially partnerships involving private sector firms – without
losing sight of organisations’ missions and ethos, there are examples of positive
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Conflict and competition versus collaboration and planning
approaches, developing forms of collaboration as part of alternative ways forward.
Together they illustrate proactive ways of coping and of developing strategically
planned and democratically accountable services to meet clients’ needs holistically
in response to the challenges associated with increasing marketisation, rather than
engaging in increasing conflict and competition.
91
SEVEN
Public service modernisation and time
Previous chapters have discussed key aspects of the Carter reforms and subsequent
change, as they impacted upon Law Centres, their ethos, values and practices,
as well as on the working conditions of Law Centre staff and volunteers. The
central issue of this chapter relates to questions of time and, more specifically,
to questions of how recent changes have changed both the quantitative and the
qualitative nature of working time. So many of the tensions and dilemmas that
were being experienced were described in relation to time, in terms of increasing
time pressures, in terms of differing notions and understandings of time efficiency
and in terms of how time was being valued and measured in the provision of
legal advice.
This chapter sets out to show how the accountability system that was put into
place with the fixed fee system narrowed the amount of working time to be
spent per case, while failing to include funding for time spent on more holistic or
preventative work.These transformations of working time may be conceptualised
as a re-emergence of Taylorist principles of work, it will be argued, an approach
based upon maximising managerial control over the organisation and timing of
work processes from the top down, rather than aiming to engage the energies
and creativity of the workforce from the bottom up (as in the development of
workplace quality circles, for example, approaches that had been widely debated in
previous decades).The following section summarises debates on the New Public
Management and the sociology of work and time, providing the context for the
subsequent discussion of time pressures, along with the discussion of time being
wasted – and, conversely, of time being valued – in Law Centres.
New Public Management, neo-Taylorism and the new
organisation of (working) time in the public services
As previous chapters have already argued, over recent decades policy makers in
Britain have sought to increase the importation of market mechanisms into the
administration of publicly funded organisations, including the administration of
Law Centres. It was argued that greater competition, an explicit measurement
of outputs and performance as well as more generally a stress on a private sector
style of management practices would produce a higher degree of efficiency and
reduce cost – the changes in governance associated with New Public Management
and New Managerialism (Hood, 1991; Power, 1999; Newman, 2000; Newman
and Clarke, 2009).
Since the mid to late 1980s these had become models for the administration
of the public sphere in health services (Newman and Lawler, 2009; Schofield,
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Access to justice for disadvantaged communities
2009), in education (Brennan, 2009), in local government and in the caring
professions (Newman et al,2008; Healy, 2009), as well as in the provision of public
legal services (Sanderson and Sommerlad 2011; Sommerlad, 2001). As previous
chapters have also pointed out, these approaches underwent changes under the
New Labour governments (Newman, 2000; Newman and Clarke, 2009) and again,
more recently, under the Coalition government’s strategies for welfare reform.
But there have been common threads too, with the increasing use of market
mechanisms as a strategy for public service reform more generally.
As Felts and Jos (2000) have opined, these reforms can be understood in terms
of a reorganisation of time.They suggest that ‘reform efforts that emphasized goal
setting and outcome measurement’ (Felts and Jos, 2000, p 520) in terms of public
administration practices have been accompanied by a shift of the idea of time
in general, and more particularly in terms of the idea of futurity. The model of
the bureaucratic organisation which embodied the notions of predictability and
calculability of the future gave way to the idea of the flexible organisation whose
future is open to constant change. New Public Management approaches, as Felts
and Jos argue, can be viewed as a reflection of this shift in the understanding of
time. The ‘emphasis upon flexible organizations, measurable performance criteria
(i.e. benchmarks, goals, objectives), and the shorter time horizons made possible
by contracting out clearly shows a bias in how to think about time’ (Felts and
Jos, 2000, p 525).
Felts and Jos argued that there were also inherent tensions and contradictions,
pointing out that many of the reforms ‘served mostly symbolic and rhetorical
purposes’ (Felts and Jos, 2000, p 520), part of wider strategies to discipline
employees, including public service professional employees, more effectively. As
du Gay has similarly suggested, the reforms were being implemented in a wider
climate of distrust of the efficiency of public or bureaucratic organisations and
their staff more generally (du Gay, 2000).
Donaldson has argued, in parallel, that the ‘narrow model of human behaviour’
(Donaldson, 1990, p 371) associated with such suspicions characterises public
service professionals as having the ‘inherent propensity to shirk, to be opportunistic,
to maximize his or her self-interest, to act with guile, and to behave in a way that
constitutes a moral hazard’ (Donaldson, 1990, p 372) and needing to be managed
with stricter control mechanisms and more rigorous forms of output measurement.
The changes in the governance of publicly funded organisations have been
considered in the context of the re-emergence of Taylorist managerial practices,
reverting to approaches that had been the subject, in previous decades, of
fundamental criticism, in the context of debates on less negative approaches to the
management of human resources. Taylorism – named after Frederick W. Taylor –
describes a type of management of work processes in which the organisation and
timing of work tasks are no longer performed with the degrees of control that
were previously exercised by workers themselves. In contrast, under Taylorism,
managers aim to control, standardise and hence time work processes by splitting
them into measurable units. This practice has sought to increase time and cost
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Public service modernisation and time
efficiency, reducing workers’ autonomy over work processes and requiring only
fragments of the skills that had been needed in craft production.
Taylor’s ideas originated at the beginning of the 20th century, in a socioeconomic context of rapid industrialisation, mechanisation and the rise of mass
production. Pollitt uses the term ‘neo-Taylorism’ to consider the application of
Taylorist approaches to public service modernisation in the UK in more recent
years. He argues that neo-Taylorist characteristics are evident in the development
of clear performance indicators to measure the achievement of targets while paying
less attention to the complexities of workplace norms, beliefs and aspirations
(Pollitt, 1990, p 56) of individuals working in an organisation. Neo-Taylorist
managerial approaches also encompass an ‘emphasis on economy and efficiency,
to the relative neglect of other values’ and ‘there is the scantiness of attention’
‘afforded to staff as people to be encouraged and developed rather than as work
units to be incentivised and measured’ (Pollitt, 1990, p 59). In terms of practices
and values, neo-Taylorist approaches emphasise output, efficiency and economy,
while ‘other values – for example, fairness, justice, representation, or participation
– were either off the agenda or were treated as constraints on the drive for higher
productivity’ (Pollitt, 1990, 138).
The emergence of neo-Taylorist managerial practices in the provision of
public services has also been suggested in a more recent study by Stoney (2001).
Drawing on empirical research on the changing managerial context in local
authorities in the UK, Stoney claims that Taylorist principles continue to guide
organisational values and practices.This is so in particular in regard to the absence
of autonomy over the allocation of working time, the control of the content and
timing of people’s work as well as in regard to processes of work intensification.
Pollitt similarly argues that one of the most important elements constituting neoTaylorist managerial practics is a strong division between strategic objective-setting
management, on the one hand, and front-line operational line management with
few influences over the actual work process, on the other hand (Pollitt, 1990).
Crowley et al (2010) have similarly argued that neo-Taylorist managerial
practices are not simply features of a bygone industrial era, as had been widely
supposed – but had actually been reinstated with the advent of post-Fordist
modes of production. Contrary to commonly assumed ideas that work under
post-Fordist conditions radically departs from the Taylorist principles of time
discipline,1 standardisation and hierarchical organisations, Crowley et al suggest
that ‘principles of scientific management (…) have assumed key positions in the
post-Fordist era’ (Crowley et al, 2010, p 423). In other words, while post-Fordist
modes of production have increased the need for flexibility in the production
process as well as among the workforce, there has also been an expansion of
control mechanisms, less time autonomy, a stronger focus on output measurement
and an intensification of work processes for the worker – all being elements that
characterise neo-Taylorist managerial practices.
Crowley et al argue that ‘[t]hese flexible practices, which reflect an expanded
scope of Taylor’s methods, have heightened performance pressure and impinged
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Access to justice for disadvantaged communities
on the nature of professional work and employee well-being’ (Crowley et al,
2010, p 441). While Crowley et al ground their empirical research in workplace
ethnographies conducted between 1929 and 1999, there are more recent
indications of a spread of neo-Taylorist practices, with significant effects on the
organisation of working time in the provision of public services, including the
provision of legal aid via Law Centres.
Importantly, in relation to questions of time, with the reforms that followed
the Carter report, most areas of legal aid changed from a system based on hourly
rates to a fixed fee system. As previous chapters have already explained, this fixed
fee was calculated on the average amount of time considered necessary to finish
cases in particular areas of law. The only variation was the provision for additional
funding for exceptional cases – defined as cases requiring more than three times
the value of the fixed fee for that particular area of law.
The underlying aim was that providers of legal advice should start to act in
more business-like ways, balancing the cases that could require more time than
the fixed fee provided for with a higher number of short cases that could be
closed in less time. In summary, the fixed fee system incentivised Law Centres to
spend less time per case, and to close cases in a timely way. This would generate
surpluses that could then be used to offset the additional time taken by more
complex cases. In this way, the introduction of the fixed fee system focused upon
increasing time efficiency as a central feature of wider strategies to promote
market-type mechanisms and approaches more generally.
The introduction of the fixed fee has had major ramifications, as subsequent
sections of this chapter illustrate. There have been significant impacts on both
the quantity and the quality of working time in Law Centres, with increasing
pressures towards work intensification more generally.
Time pressures and work intensification
Law Centre workers and volunteers raised widespread concerns about the tensions
and the associated dilemmas that the introduction of the fixed fee scheme involved
in terms of time pressures.These pressures were particularly problematic for those
involved with Law Centres that were entirely or almost entirely dependent upon
the fixed fee scheme for their funding. (Law Centres with access to alternative
funding sources, such as local authority funding, tended to have rather more
flexibility, with correspondingly greater scope for staff to exercise discretion in
relation to issues of time management.
The fixed fee system itself was associated with pressures either to do unpaid
overtime in order to meet the requisite targets or to finish cases before they were
fully resolved.As a caseworker noted, for example,“there wasn’t enough time to do
everything that needed to be done”, adding that these time pressures left no “time
available for other aspects of the work, such as working with the community”.
A solicitor from a different Law Centre similarly argued that the pressures to
make the fixed fee system work meant that people had to work a lot harder, come
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Public service modernisation and time
in earlier in the morning, stay longer in the afternoon and therefore work longer
hours altogether – without getting paid for the additional hours. A worker from
another Law Centre commented on his situation in similar vein, describing the
transformation of his conditions of work caused by the increasing time pressures.
Of recent years, he explained, he had had to “put in late nights to get things done”.
“You can see cracks”, he reflected, emphasising the emotional and physical strains
of the changes caused by the introduction of the fixed fee scheme. These were
recurring themes, others describing similarly the effects of excessive working
hours, along with the strains involved in meeting the targets.
Despite their efforts to comply with the new requirements while maintaining
their ethos and values, there was widespread concern, among both Law Centre
workers and other stakeholders, as to whether the quality of the service was
suffering as a result. One Law Centre worker commented, for example, that this
was particularly problematic for cases that involved “working in the community or
when you are dealing with issues around violence, homelessness or immigration
(…) where you have to go beyond that half an hour slot”. In these cases it was
necessary that “you give time to people in distressed situations and that was always
one of the strengths within the voluntary sector. I hope that we do not lose this”,
she concluded, or the quality of service would be correspondingly reduced.
A young caseworker from another Law Centre commented in similar vein,
reflecting that the time pressures made it impossible to “spend enough time
preparing representation”, so that “the amount of time we are spending with
the clients is really limited”. Despite her commitment to the ethos of providing
comprehensive legal advice, these pressures and the increasingly precarious
conditions of work made it impossible for her to develop personal plans for the
future within the Law Centre, she concluded.
A related criticism was that financial pressures were incentivising Law Centres
to cherry pick the cases that needed less time and could therefore yield surpluses
more readily and rapidly. Although the LSC was firmly opposed to cherry picking,
as has already been suggested, there were widespread fears that this would emerge
as a significant problem.A Law Centre worker commented as follows on precisely
this dilemma:“we don’t cherry pick cases”, adding that “we have problems turning
people away”. But, he reflected, this “could be our downfall”, undermining the
Law Centre’s prospects for remaining financially viable under the fixed fee system.
Meanwhile the time pressures associated with the fixed fee system were being
intensified even further by the increased amounts of time that Law Centre workers
and volunteers reported as being needed in order to fulfil the new system’s
administrative requirements.The following section explores these administrative
aspects in more detail.
Time efficiency: output versus outcome
Efforts to use time more efficiently, as the fixed fee scheme intended, were
being offset by the time required to comply with the new accountability system,
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a number of Law Centre workers reflected. As a result, it was argued, there
was less time to focus on the actual legal work. The time pressures were being
compounded, in addition, by the fact that there were frequent changes to the
procedures in question.
A solicitor who had left a Law Centre after working there for 27 years
commented on these shifting administrative requirements in the following terms.
When she had arrived at the Law Centre, she explained,“we were pretty efficient
when only 20% of the Law Centre resources went into admin”. By the time
that she left the Law Centre she had needed to spend between 50% and 60% of
her time in order to cope with the additional administrative burdens and what
she described as the “very, very complex financial arrangements”. This had been
“utterly demoralising”, in her view, precipitating her decision to leave the Law
Centre.
Comparable experiences were shared by a number of others, who were
similarly critical of the administrative requirements involved. As a result of these
requirements, one solicitor commented, “a significant part of people’s working
time is now spent on doing tremendous amounts of paper work”.These pressures
were further intensified by the risk of not getting paid at all, if the LSC forms
were not filled in correctly. A staff member from another Law Centre exemplified
this by telling the story of a case in which she had omitted the date, when filling
in the Legal Aid certificate. As a result, some two months’ worth of legal work
went unpaid.
In summary, while it was intended to increase efficiency and reduce the time
spent per case, the fixed fee scheme was widely considered, on the contrary, to
have increased the time that Law Centres needed to spend in order to fulfil the
additional administrative requirements, leaving less time for doing the legal work
itself.
Apart from the increasing amount of time required to administer Law Centres,
there were many criticisms of the LSC’s approach to defining time efficiency in
the first place, in the context of the work that Law Centres were actually doing.
Time efficiency should not simply be equated with a quantitative understanding
of time. A reduction in the amount of time spent per case may reduce costs in
the short term, it was suggested, but may prove to be an inefficient use of time
in the longer term. Tensions between the outputs necessary to receive enough
funding through legal aid contracts and more holistic and sustainable (long-term)
outcomes were a recurring theme.
Time spent approaching clients’ problems holistically was considered as time
well spent, building relationships of trust with individuals and with organisations
and groups within communities. This argument was reinforced by evidence
from a study of advice service, by the Council on Social Action. Its published
findings,Time well-spent (Council on Social Action, 2009), pointed to the
transformative nature of personal advice relationships, arguing that time spent on
building good relationships and listening to clients’ problems was also making sense
from a time-efficiency point of view. The authors concluded that ‘it [spending
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time with clients] is not a luxury. Rather, it is instrumental to achieving a quality
outcome and value for money’ (Council on Social Action, 2009, p 29).
This was especially relevant when working with clients for whom English was
not their first language. As one volunteer reflected, there were particular tensions
here in attempting to balance the ethos and values of the Law Centre with the
temporal restrictions that the requirements of the fixed fee imposed: “We couldn’t
do time limited appointments here. Because of the nature of the community we
have here, English is not the first language of most people”, which meant that “if
you had twenty minutes with a client you wouldn’t get past hello”. Ultimately,
such an approach would be a waste of time. As he concluded, “you would not
be able to give them an effective service; the to and fro between interpreter and
client takes time” – time well spent.
Others commented that “there were pressures to churn people through to
manage the time pressures related to the fixed fee funding system, with less time
to focus on the wider issues”, such as doing preventative or policy work. There
were increasing tendencies to adopt what some described as a “factory approach,
more like a production line” – “more of a conveyor belt approach”, a lawyer
reflected, contrasting this with the more holistic approach to each individual
client’s needs that she considered to be more appropriate to the way in which
Law Centres should operate.
There are parallels here with Sanderson and Sommerlad’s anxiety that the
implementation of differing work practices (as a result of the fixed fee system)
may contribute to the rise of legal aid factories.This would enable a high number
of cases to be closed quickly, in order to make the fixed fee work, they predicted,
but would pose ‘difficulties for many smaller agencies and firms, especially those
committed to specialist and/or high-quality work’ (Sanderson and Sommerlad,
2011, pp 192–3). Sanderson and Sommerlad suggested that this way of making the
fixed fee system work would be possible only via the creation of a two-tier system
with qualified legal executives, and unqualified clerks or paralegals employed at
significantly lower rates of pay, thereby exacerbating the processes of deskilling
and de-professionalisation.
In summary, the reforms that were being implemented, following the Carter
report, were perceived as leading to the promotion of administrative systems that
were reminiscent of Taylorist principles and practices of management, focused on
measurable outputs, while minimising autonomy over work processes and time
allocation for front-line staff. Before we come back to the discussion of how far
these changes might be understood as the re-emergence of a Taylorist regime, the
following section summarises debates about alternative approaches to notions of
value and the measurement of value, time valued and the value of time in relation
to the work of Law Centres.
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Time valued and the value of time
Appreciations of the social and economic value of Law Centres were frequently
expressed by stakeholders from organisations and agencies working with Law
Centres, such as local authorities, CABs and other advice agencies. There were
concerns, however, as to how a preventative approach could be integrated into
the current funding system of the fixed fee. A number suggested that this all
raised wider issues of measurement and value. As a project worker from an advice
network pointed out, for instance, Law Centres were in fact undertaking work
that was saving time on a systemic basis.This should be valued as time well spent.
Another stakeholder reflected similarly, pointing to the potentially negative
effects if those who needed legal advice were to be unable to have access to it
via Law Centres. There was a risk that the courts could become clogged up if
people were not adequately represented and if unrepresented litigants failed to
complete the requisite paper work effectively, he concluded.Time, including the
court’s time, would be wasted in cases where “papers would be sent back again
and again”.
As has already been suggested, the case for reviewing approaches to the
relationship between efficiency and time was particularly evident in relation to the
value of preventative work. Preventative work could help to identify interrelated
problems and thereby make it possible to intervene, more effectively, at an early
stage. But this was becoming increasingly untenable. As a solicitor explained, over
recent years Law Centres had become “understandably focused upon fire-fighting
rather than upon why fires were starting in the first place”.
Similar statements concerning the value of preventative work were made by
Law Centres’ stakeholders. For example, a spokesperson from an organisation
that provided funding for Law Centres commented on the pressures that were
squeezing out preventative work, despite its value, and reflected on the problems
of measuring this type of value. As she explained, people who seek advice from
Law Centres “might come in with a housing issue but you find out that there’s
a health issue, there’s an education issue, a whole raft of issues that the family is
facing”. “A little bit of help at the beginning”, she continued, “could save the
local authority an awful lot of time and effort and money towards the end.” This
type of approach, she recognised, was “something that is not very easy to measure
though” (at least not in ways that would necessarily convince funders).
Law Centres had already addressed this question of measurement, back in the
Thatcher era.The Law Centres Federation Evaluation Framework Research Team
had set out to explore ways of measuring what was of value in their work, contrasting
this with evaluation approaches that ended up valuing what was being measured.
It produced a report in 1988 outlining its findings (Law Centres Evaluation
Framework Team, 1988).
These questions of value and measurement subsequently became a topic of
broader interest, as evidenced in a number of more recent publications, in the
context of public service modernisation. ‘Targets’, as Milbourne and Cushman
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among others have pointed out, ‘do more than require a level of performance:
they structure discourse and define categories of what is meaningful and what
is marginal’ (Milbourne and Cushman, 2013, p 490). What actually constituted
value in the advice sector was the question explored by the New Economics
Foundation (NEF), for example (NEF Consulting, 2008; 2009; 2010a), together
with the question of how outcomes in advice could be measured (NEF Consulting,
2010b), taking into account the outreach and preventative work that Law Centres
had been committed to undertaking. The authors of one of the New Economic
Foundation’s studies (NEF Consulting, 2010a) questioned the assumptions of
efficiency being made by the then current legal aid reforms.Their report argued
that ‘the concept of efficiency and competition in service delivery (…) isn’t
necessarily compatible with best value over the longer term’ (NEF Consulting,
2010a, p 6). In contrast to the commodified understanding of legal advice – that
is, an understanding that views legal advice as a commodity to be consumed – the
authors proposed that the holistic services that Law Centres had been committed
to providing were ‘more consistent with a citizenship or social-change model of
value’ (NEF Consulting, 2010a, p 6).
These differing and often conflicting notions of time and of what constitutes
value relate back to the wider debates that were raised at the beginning of this
chapter.
Conclusion
This chapter has focused upon the ways in which the accountability and
administrative systems that were introduced following the Carter report placed
temporal pressures on Law Centres. Critics argued that the business model, which
focused on the production of measurable outputs, failed to take into account the
time that Law Centre workers and volunteers needed to spend on essential but not
easily measurable or countable outputs.The resulting tensions became particularly
evident in terms of the time needed for building and maintaining relationships
with Law Centres’ clients and in terms of the time needed for doing preventative
and outreach work with surrounding communities. This raises questions about
the extent to which such a neo-Taylorist model may be appropriate at all, as
an approach to increasing efficiency in the provision of advice services, for the
longer term.
These strategies led to intensifications of working time, the growth of excessive
working hours and increasing time pressures in Law Centres, potentially
demoralising staff in the process. Crowley et al (2010) have argued that there are
parallels here with the wider impacts of the ‘heightened performance pressures’
of neo-Taylorist managerial practices and the ways in which they have ‘impinged
on the nature of professional work’ (Crowley et al, 2010, p 441) – with potentially
detrimental effects on the personal health and well-being of the staff concerned.
There were particular ironies here. It was not simply that neo-Taylorist
approaches were potentially counter-productive in terms of promoting increasing
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operational efficiency sustainably. Neo-Taylorist approaches were also potentially
counter-productive in terms of the possible impacts on staff motivation and
morale. Alternative approaches to the management of human resources, such as
the promotion of quality circles, had arguably been more effective as strategies
for increasing productivity, in the private sector. There, the focus had been upon
engaging employees positively, motivating them and promoting effective team
working.The aim had been to improve quality as well as to increase productivity,
thereby enhancing firms’ competitiveness in an increasingly challenging economic
climate. Such strategies had been widely considered in management debates in
the 1980s, building upon what were believed to be key ingredients of the success
of Japanese approaches to management (Bocker and Overgaard, 1982; Ross and
Ross, 1982).
If governments were committed to importing private sector approaches into
management, then these types of approaches might have been thought to have
relevance as part of strategies to increase productivity and, most importantly, to
improve the quality of public services. The pitfalls and perils of neo-Taylorist
approaches have been well documented (Boyle, 2011). The irony was that it was
neo-Taylorist strategies, rather than more forward-looking private sector strategies,
that were imported into the management of public services via the public service
modernisation agendas.
None of this is to suggest that time management is not an issue to be addressed;
on the contrary, as one of the present authors reflected after visiting a busy CAB
office where staff were working against the clock, trying to meet the needs of
everyone waiting in the queue that snaked around the building. How to give
each person sufficient time and still ensure that everyone received advice before
the office had to close? The question is not whether but how such dilemmas are
to be addressed.
The following chapter takes up the impact of public service modernisation
agendas in terms of staff motivation and morale in Law Centres, focusing on their
experiences and their reactions, either quitting or developing coping strategies in
response. This then brings the discussion back, in the final chapter, to questions
of value and values in the welfare state more generally, together with questions
about alternatives to marketisation as strategies for providing public services more
effectively – and with greater democratic accountability to service users, wouldbe service users and their wider communities.
Note
1
For a general discussion on the emergence of time discipline and the importance of
clock-time in the period of industrialisation see Thompson (1967).
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EIGHT
Alienation and demoralisation, or
continuing labours of love?
This chapter draws together evidence on the impact of the challenges and
dilemmas of public service modernisation for the staff members and volunteers
involved with Law Centres. As has already been suggested, one of the criticisms
that has been levelled at New Public Management systems is that they presuppose
negative views of human motivation, assuming that employees in general, and
professionals more specifically, need the discipline of targets imposed from above
(Le Grand, 2003). As a result, critics have argued, target-type cultures actually
risk alienating public service workers, undermining the very motivations and
commitments that brought them into the public service professions in the first
place.
There is, in addition, evidence from research to suggest that such motivations and
commitments to the public service ethos may be deeply rooted in professionals’
own personal histories and identities (Hoggett et al, 2009). This can add to the
dilemmas that are faced in the context of public service modernisation, dilemmas
which may be experienced emotionally as well as in more practical ways. The
term ‘emotional labour’ covers a range of meanings and usages, from varying
perspectives. It could refer to employers’ demands that service workers such as air
stewardesses should keep smiling ‘as though they really meant it’ to reassure their
passengers, constituting additional exploitation of the employees in question, it
could be argued (Hochschild, 1983; Standing, 2011). But the term has also been
applied to the emotional engagement of nurses, for example, giving of themselves
emotionally as they care for seriously ill patients (Smith, 1999). It is in this latter
sense that the term has been used to understand the particular dilemmas faced by
public service workers in the contemporary policy context (Hoggett et al, 2009).
The first part of this chapter builds upon earlier discussions in relation to Law
Centres’ ethos and values, as outlined in Chapter Three, providing fuller accounts
of people’s motivations.This leads into the discussion of the ways in which people’s
motivations had been affected by the introduction of more marketised approaches
to the provision of legal aid. As the discussion argues, there was evidence of
considerable stress, including emotional stress and burn-out, together with some
evidence of alienation and demoralisation. But this was only part of the picture,
as the penultimate section of this chapter demonstrates on the basis of evidence
from staff and volunteers alike.This leads into the final section, which summarises
the coping strategies that were being adopted and the ways in which the public
service ethos was, or was not, being maintained and reproduced.
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Motivations and values
As previous chapters have already suggested, altruism may be combined with more
self-interested motives, entwined with moral, social, psychological, religious and
cultural influences. As Titmuss had argued in relation to the giving of blood, ‘No
donor type can, of course, be said to be characterized by complete, disinterested,
spontaneous altruism’ (Titmuss, 1970, p 89). Motivations among donors varied,
although particular patterns did emerge. There were relatively straightforward
expressions of the desire to help others, such as ‘I felt it was a small contribution
that I could make to the welfare of humanity’ (Titmuss, 1970, p 227), for instance.
Others referred to traditions of donating in their families, or to more general
awareness of the need for the service. There were, in addition, expressions of
gratitude and the desire to give something back, donating blood after ‘being told
that my own life had been saved by transfusion. Determined to repay’ (Titmuss,
1970, p 228), the explanation of one woman, referring to her own experience
in childbirth. Such notions of reciprocity and solidaristic interdependence have
been central to debates on the welfare state, as has already been suggested.
Studies subsequent to Titmuss’s have explored motivations and values among
public service workers more specifically, as Chapter Three has already outlined
in the context of debates on the public service ethos. Was working in the public
services more than just a job? Here too the desire to benefit the community
emerged as the most frequently cited goal in a survey of managers, for example
(Steele, 1999), providing ‘a common theme and sense of purpose for people
working in local government, health and the police’ (Steele, 1999, p 13).
Other parallels emerge, including the influence of childhood experiences and
family patterns. Psycho-social approaches have explored such influences further,
identifying the affective basis for commitments to social justice as well as to
social care. A complex mixture of compassion and anger, Hoggett et al (2009)
argue, ‘fuels a reparative desire to undo the damage and suffering experienced
by particular groups or communities, or, in Titmuss’s terms, a desire to repair the
texture of social relations’ (Hoggett et al, 2009, p 81).
The point is absolutely not to suggest that public service workers are uniquely
altruistic. Rather, the point, as previous chapters have already suggested, is to
emphasise the importance of recognising the complexity and depth of their
motivations and values. As Hoggett et al write, ‘In our conversations with
development workers we realised that a variety of different values and motivations
underlay their commitment to what they did.We also began to realise how deeply
held these were, how frequently earlier life experiences had nurtured a sensitivity
to injustice and the compassion and anger that accompanied this’ (Hoggett et
al, 2009, p 83).
So how does this all apply to Law Centres? As Chapter Three has already
outlined, there was – unsurprisingly – considerable overlap between the ethos
and values of Law Centres and the motivations and values of those who worked
in them, whether as paid staff or as volunteers. People chose to work in Law
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Alienation and demoralisation, or continuing labours of love?
Centres because this chimed with their own values and commitments to facilitating
access to justice for all, “championing all who experience injustice at any level
and by doing so giving people a chance to have their voice heard in society”. A
number of Law Centre staff mentioned their own personal backgrounds when
explaining the strength of their motivation to engage with issues of social justice.
One management committee member/trustee commented, for instance, that her
father had been a vicar, and so she had grown up with the norm of supporting
all those who had come to their door seeking help and advice, including those
with problems such as homelessness. Similar references to the influences of parents
were made by others whose home backgrounds were less directly touched by
the types of problems that Law Centres address. For example, a lawyer who
described his own background as having been privileged (having attended a
public school) referred to the importance of the influence of his mother, who
had always manifested empathetic concern for others (eventually becoming a
social worker). More directly, another lawyer explained that “my dad had been
an advice worker in his career”, which had awakened her interest in a legal career
in the not-for-profit sector.
As Chapter Three has also explained, some described their motivation in terms
of their own commitments to social movements for social justice and anti-racism.
A lawyer with experience of Law Centres reflected that “my motivation for
working in Law Centres … is bound up with my own biography”, outlining his
experiences of squatting and of defending those involved in squatting. As a result
of working alongside the local Law Centre, he decided to pursue a legal career,
seeing “the value of becoming a lawyer to provide legal services of this type”. In
more formal political terms, a lawyer working in another Law Centre explained
that she had always had an interest in becoming a lawyer, but not in commercial
practice, given her interest in progressive politics, including membership of the
Labour Party, from her teens.
Others described the influence of more direct experiences of inequalities and
disadvantages. A management committee member/trustee (with a different Law
Centre from the one cited above) reflected on his “whole life dealing with social
justice” as an active trade unionist whose own father had been blacklisted for trade
union activities (taking up health and safety issues in the hot metal industry). For
him, the issues that the Law Centre was taking up were “about a moral stance”,
about “right and wrong”. Several other respondents similarly mentioned their
family backgrounds – including the experience of having been with a parent
on a picket line – and experiences that had been central to their developing
commitment to social justice. “Working for the common good”, as one case
worker expressed it, after explaining that as a child he had taken sandwiches to
his father on the picket line during the 1972 miners’ strike.Working for the Law
Centre made him happy, he added. “This is what I think I had been looking for
... [through his own trade union work and through previous public service jobs]:
to try to help people.”
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It was clear that for a number of Law Centre workers their involvement with
the Law Centre was central to their own identity and sense of self. A lawyer the
majority of whose career had been in Law Centres reflected that “it [working in
Law Centres] has become part of my self-image”. He added that “if I went into
private practice now I would be quite ashamed”, given the contrast that he had
himself experienced when working in the private sector for a short time after
qualifying.
This personal identification was similarly demonstrated by a Law Centre
worker who had been actively involved in setting up and working with a
particular centre over a number of years. “This is my baby ... I love it ... it’s part
of my life”, he commented, adding that others felt similar levels of commitment
(including working without pay, at one point, when funding had been temporarily
withdrawn). A lawyer in another Law Centre1 provided yet another example,
illustrating the ways in which the Law Centre was bound up with her own identity
and sense of self. Explaining that “without a doubt” she planned to continue with
this type of work in the Law Centre, she added that “I can’t think of another place
where I could find work where I can be who I want to be”.
Motivation and gender
Given earlier feminist research on gender, work and caring (Finch and Groves,
1983; Ungerson, 1990), the research included an analysis in terms of gender.Were
women more focused upon caring and/or less focused upon more traditionally
male career trajectories, for example? More generally, the law has evidently been
an increasingly popular career choice for women, with women making up some
64% of students enrolling on relevant law degrees (compared with 45% of the
total of solicitors on the roll in 2008). Solicitors from ethnic minority backgrounds
made up just over 10% of the roll, although here too the situation seemed to
be changing, with just over 30% from ethnic minority backgrounds enrolling as
lawstudents. Progress was evidently being made, as Kennedy had already recognised,
while pointing to the distance still to be travelled (Kennedy, 2005a). In terms of
career trajectories to the most senior levels of the legal profession, there would
still seem to be issues to be addressed in terms of equalities, for example, with
women accounting for under 8% of QCs in the same period.
As it turned out, gender did not emerge as a significant factor in relation to the
motivation to work in Law Centres. Appendix 1 includes information on such
slight differences as did seem to emerge from the research.
As previous chapters have already illustrated, there were a range of comments
on each topic both from men and from women. Comments on the value of
time spent with clients were very similar as were comments on the pressures of
trying to address complex issues with a client in no more than 30 minutes. It
was a woman who argued that “you feel the need to be more business-like [in
terms of the time spent with each client] but you can’t do it like that – not when
you’re working with the community, not when you are dealing with issues maybe
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Alienation and demoralisation, or continuing labours of love?
around violence or homelessness or immigration”. But it was also a woman who
commented on the importance of “an efficiencies approach” and added that 30
minutes should be plenty of time to undertake a professional analysis even when
addressing complex problems.
As the rest of this chapter demonstrates, there were plenty of comments that
testified to men’s personal commitment and emotional involvement in their
work, just as there were plenty of comments demonstrating such commitments
among women.
Of course this does not in any way prove that gender differences were not at
work, and simply clarifies that this particular research did not provide sufficient
evidence to identify any such patterns. This may perhaps give some clues as to
the characteristics of many of the men who were choosing to work or volunteer
in Law Centres. But this would be to speculate beyond the scope of the evidence
in question.
Nor did this research investigate the extent to which Law Centres’ services
had been particularly important to women as clients – with correspondingly
greater impacts on women if the scope of legal aid were further reduced. The
likely gender impact of the proposed legislative changes has been central to these
debates more widely. As Stephenson and Harrison’s (2011) study pointed out,
62% of applications for civil legal aid were being made by women, with higher
percentages in areas such as education and family law. Cuts in legal aid would have
significant impacts on women, including in relation to welfare benefits, housing,
immigration and aspects of domestic violence (Stephenson and Harrison, 2011).
But this aspect – of the wider impacts on women – was also beyond the remit
of this particular project.
Comparing and contrasting Law Centres with working in
other sectors and types of agency
As Chapter Three has suggested, a number of those involved, both men and
women, picked up on the theme of the particular ethos and values of Law Centres
as a motivation for their involvement. For some, there were comparisons to be
drawn between working in Law Centres and their previous experiences in other
agencies. Several commented on the similarities, describing their work in the Law
Centre as building upon previous experiences in related areas of work, such as
working with refugees, migrant workers and asylum seekers, managing a refuge
for those affected by domestic violence or working on homelessness. In addition,
the manager of one Law Centre said that she had also managed advice provision
in the region and so had relevant background, knowing how important these
issues were and how they related to wider issues, including equalities issues. The
manager of another Law Centre made a comparable reference to the relevance
of her experience in previous posts, adding that this was the most challenging
of a series of challenging posts. There were parallels with the comments of a
number of those involved as trustees/management committee members, several
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Access to justice for disadvantaged communities
of whom had previous experience as trustees of other public service organisations.
In each of these instances, the underlying motivations and values echoed the
public service values expressed above, emphasising the similarities, despite some
differences in context.
For others, however, there were sharp contrasts to be drawn with their previous
experiences elsewhere, experiences that had drawn them into becoming involved
with Law Centres instead. A lawyer who had previously worked as a clerk in
a private firm of solicitors commented that “it was all about making money”.
“I came here [to the Law Centre] because I love the work”, he added. “When
I’ve done a case [successfully] I’ve changed someone’s life.” Another lawyer, who
had experience of working in Washington, DC in the 1970s, explained that in
his view “if you were a millionaire you got your case done properly, and if you
were a ten millionaire your problem was solved by a telephone call to the White
House”, “so I came back and decided that this [practising in the private sector]
wasn’t the career for me”.
A young student undertaking a placement with a Law Centre offered a
comparable although more contemporary view. “All that we heard at Uni was
commercial, commercial, commercial”, she reflected. Since she was placed with
the Law Centre, her “eyes opened”. She would be taking this wider understanding
of “what goes on in the real world” and her wider understanding of the law and
how it impacts on people’s lives with her, into her future career. This comment
links to the findings on the dynamic ways in which motivations and values can
develop over time, as Chapter Three has already suggested.
Before we move on to this, however, it should be added that dissatisfaction
with the private sector was not the only factor in such choices. A Law Centre
worker commented that he had come from advice work in a voluntary sector
organisation in the same locality.This was a large organisation which he described
as working in ways that he found personally unsympathetic, in terms of his own
motivation and values.“It was very corporate”, in his view, he explained (reflecting,
perhaps, increasing marketisation within the voluntary sector more generally and
contrasting this unfavourably with the more congenial ethos of the Law Centre
to which he had moved).
Motivation and values: a two-way process
As Chapter Three has already suggested, motivations and values can be
strengthened – or, indeed, undermined – by people’s experiences. There were
examples of people’s having become involved in Law Centres by happenstance
– applying for a job or a traineeship, or applying to become a volunteer because
the opportunity presented itself. Sometimes this opportunity appealed because
the person concerned was already sympathetic to the work of Law Centres, as
with the trustee/management committee member who became involved as a
trades council representative, responding to calls for a volunteer to take this on.
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In other cases, though, those concerned had very little prior knowledge or
understanding of the work of Law Centres. This was the case, for instance, with
an administrative worker who had previously worked in the private sector. The
person in question described herself as having become “passionate about the Law
Centre now”. She had become more involved as she saw “the impact on clients”.
“Without the Law Centre, clients just wouldn’t have access to justice.” If the Law
Centre were to close, she concluded, she didn’t know whether she could return to
working in the private sector, and commented that she “wouldn’t have said that
before [working in the Law Centre]”.There were a number of similar examples.
These included lawyers providing pro bono advice sessions. Many of them came
with existing commitments to “widening access to justice” and “contributing to
the community”. Another long-standing volunteer explained that volunteering
was rooted in her values: “I’ve always had a social conscience and a belief in
justice”. But there were also examples of others who came, initially, with other
motivations, in some cases largely because this was being encouraged by their line
managers. One lawyer explained that voluntary work in Law Centres was seen
as being very useful because they provided wide experience, in contrast with the
more limited experience available in private firms that might be more reluctant
to allow a young lawyer, let alone a trainee, to undertake responsible work for
their corporate clients.
A lawyer who had begun to volunteer early in his career provided an example
of how he had been encouraged by his firm to undertake some voluntary work.
This, he suggested, may have been for a variety of reasons, from commitment to
corporate social responsibility to the promotion of his chambers’ public image, and
also as what he described as a “promotional device” for his employers. Once he
had started volunteering, however, he came to the view that “this was something
that fits naturally for me”. It had become “very important for me to do the Law
Centre work”, which he enjoyed. He had been doing it for a number of years
now and planned to continue with it until he retired. This was basically because
“it’s a good thing to do. People should help each other”, he explained. This was
central to his view of society, which was based upon people helping each other in
mutually supportive ways rather than being simply focused upon profit making.As
Chapter Three has already suggested, individuals can and indeed do demonstrate
public service motivation, whether they work in the public, voluntary or private
sectors – despite differences between the sectors in terms of their organisational
aims more generally.
Pathways through from client to volunteer and from
volunteer to paid professional
There were also examples of former clients who had been motivated to become
volunteers and, in some cases, qualified professionals as a result of their initial
involvement with a Law Centre. One lawyer explained, for example, that she
had first come to the Law Centre to seek advice as a law student and single
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parent with a problem in relation to housing benefit. This had been some 12
years previously. She had begun to volunteer for a couple of days a week while
completing her degree, and then worked at the Law Centre as a locum. She had
obtained a training contract (at another Law Centre) and was now employed as
a senior solicitor, back in the same office where she had first become involved.
So the Law Centre had been central to the pathway that she had taken into the
profession.
Similarly, a lawyer in another Law Centre explained that he had been working
in manufacturing industry in the 1990s but had experienced problems with his
rent sometime around 1995–96. As a result, he had gone to his local Law Centre
for advice and had been helped. “This was when it [his involvement in Law
Centres] started.” He decided upon a career change and by 1997 he was studying
law, completing his professional training and qualifying in 2005. He became a
volunteer at the local Law Centre while studying, and subsequently obtained a
job there. Apart from a period of training in a city law firm, he had worked in
Law Centres ever since.
He described his motivation as “wanting to help others” as he himself had been
helped. People in Law Centres were “passionate” in their commitment.As a client
he had found that people in Law Centres “listened to me” and “believed in what
I’m saying”.This, together with the passion and commitment, was central to the
distinctive ethos of Law Centres, in his view. As he later explained in more detail,
this distinctive ethos had been challenged as a result of changes over the previous
two years, leading him to decide to leave, and raising issues that are explored in
more detail in the following section. But this is to leap ahead of the argument.
Meanwhile there were further examples of volunteers going on to qualify
as lawyers as a result of their experiences. A lawyer in yet another Law Centre
explained that he had started his legal career as a volunteer receptionist.This had
been almost accidental, as he had not been thinking of a legal career, but through
his involvement in the Law Centre his “passion grew”. Qualifying as a legal
executive encouraged him to go on and try to become a solicitor and, through
the Law Centre, he obtained the opportunity to train. Such training opportunities
provided pathways into the profession that were valued by people who would
have otherwise struggled to qualify professionally, including a number of former
Law Centre volunteers as well as a number of former clients.
Impacts of the Carter reforms
So far this chapter has focused upon the more positive aspects of people’s
motivations and values. But there was also evidence of more negative trends.
These included some very sad reflections such as the following:“I find that the
uncertainty and instability of on-going funding and the high demands to meet
funders’ criteria (especially LSC) means that I am now less inclined to continue in
a Law Centre”. Another referred to feeling that “the role would be ‘dumbed down’
… if I accepted the terms of the ‘Carter Report’ and remained employed I may
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Alienation and demoralisation, or continuing labours of love?
become cynical and disillusioned with my role”, adding that “despite a mortgage
and being a sole earner, I remained true to my principles” (that is, deciding to
resign) and concluding with some irony that “the role was subsequently deemed
redundant” in any case. “I have begun to suffer from compassion fatigue”, wrote
another. “There is an increased level of hopelessness”, added a third.
So, as well as comments about increasing motivation and engagement, there were
also some disturbing accounts of demotivation, including accounts from people
who were considering leaving their Law Centre. Some spoke of their extreme
reluctance to leave the Law Centre, even though they either were contemplating
this or had done so already.Typically, they explained that they felt constrained to
do so as a result of funding uncertainties and/or, in some cases, of sensing a loss
of vision, fearing that Law Centres were drifting away from their original mission
in their struggles to meet the requirements of the current funding system. “You
know you want to help people”, one of those interviewed explained, “you want
to help the community, you are there because you don’t want to make profit like
a private firm, you want to make a difference and it seems that the government
is trying to squeeze that out of the community.” This particular solicitor was
moving on from the Law Centre to work for another not-for-profit organisation.
These accounts of demoralisation as a result of the Carter reforms are, of course,
very personal. Deciding to leave a job in a Law Centre represented one end of the
spectrum, and there were a number of examples of people who had done or who
were in the process of doing precisely that. Another lawyer (who had also been a
trainee) made similar comments about the impact of the reforms.“I think in terms
of [my experiences as] an employee [these changes] really demotivated me.” As a
result of the changes,“rather than providing a personal service and trying to help
someone who may be very vulnerable [with] no other access for them to legal
services ... instead you are doing a paper exercise, you are not giving a personal
service, it’s impersonal, it’s rush, there is less satisfaction in the work we do”.
This lawyer went on to explain that she had reluctantly decided to leave (and
subsequently left), believing that the new LSC contract would involve further
pressures. She added that “I think what all staff found was that the quality is
suffering”. Other staff would leave too, in her opinion.“They really believe in the
principles of the Law Centre and that’s what attracted them. It’s just the working
environment has changed. We’ve got a really good team of people. I think you
have to be quite selfless perhaps wanting to be working for a Law Centre. You
are considering other people, you are not necessarily wanting to work for that
flashy law firm … our office is historically in a very deprived area. So it takes a
certain kind of person to want to work there in any type of capacity, or be in the
management committee. I think you want to do some good and those kind of
people are just gonna walk away because they are thinking ‘what’s the point’?”
She had taken up a post in another not-for-profit agency.
One of the major fears, then, was that the pressures would actually lead to a
worse service for clients. Reflecting on the problems of working on what she
described as “a shoe string” (having to rely on legal texts handed down from
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sympathetic colleagues in private firms, for instance), one lawyer explained that
she sometimes felt as if she was operating on a “wing and a prayer”. So far, the
quality of service had been maintained, despite this, but if this were to change
and if “it starts to actually show (e.g. with a claim for negligence) I’ll throw in
the towel”. This was a fear, although the Law Centre was still coping, for the
present, in her view.
A lawyer in a different Law Centre had actually reached the point of
contemplating a change of career, worrying as to whether she would find that she
couldn’t do what she described as “a decent job for my client”.That, she concluded
was “something I wouldn’t have dreamed of five years ago”. A similar comment
was made by another lawyer who had decided to move on to another post (in a
related field). Having referred to the pressures on the job and the difficulties of
meeting client needs, she concluded that this all “took you so far away from what
you wanted to do and what people actually need”. “So I suppose if you asked
five years ago, I couldn’t have seen a time where I was anything else than a Law
Centre lawyer or possibly a civil legal aid lawyer doing social justice, but I can’t
make it work anymore, so I quit.”
There were parallels with some of the comments made by trustees/management
committee members. One long-standing member of a management committee
reflected that she was unsure of her own future involvement. Although she had
maintained her involvement over a number of years (including some periods that
had been described as challenging, to say the least) she felt that “much more is
expected of management committees”. She added that “I feel it’s almost semiprofessional”, requiring a different skill set, rather than the local knowledge and
skills that she had brought as a community activist and trade unionist.
At the other end of the spectrum from those who had left, there were those
who were absolutely committed to staying, whatever the personal cost, either
financially or emotionally. Despite the pressure, one lawyer explained that she
coped because “you just pop on a few more hours”, adding that “I don’t mind
doing that”. “Everyone feels the same.” These could be described as “labours
of love”, unpaid work for the love of it. “I’ve always been passionate about my
work.” This was, in her view, in contrast to those in large organisations where,
“come 5 o’clock they’re out the door”, whether or not a particular piece of work
needed to be completed. In the Law Centre, on the other hand, “it’s very nice to
be around people with the same passion for work, the same passion for people”.
One of her colleagues made similar comments, adding that if funding were
to be lost in future she would “do something else for an income” and then
continue to “run an advice session anyway ... I’ll do that on a voluntary basis as
a labour of love”. A lawyer with many years’ experience in another Law Centre
similarly commented that, with a family and a mortgage, he would need to find
paid employment if the Law Centre were to run out of funding, but he would
be personally committed to continuing to provide advice on a pro bono basis.
The public service ethos was clearly alive, then, although at considerable cost
to the individuals concerned.The job was demanding enough in any case. As one
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young volunteer commented, it was not just about spending time with clients
but also about “lots of blood, sweat and tears”. There was evidence of burn-out,
together with evidence of levels of stress that could well lead to burn-out. And
there were also some very practical reflections on the limits of what could be
achieved by voluntary efforts alone. Although one particular Law Centre had
continued to operate on a voluntary basis for a period, until funding had been
restored, this would be unsustainable in the current context, it was pointed out.
Apart from any other factors, workers would be unlikely to be able to live on
benefits while providing the service on a voluntary basis, as they had managed to
do previously. In the past, people had expressed willingness to make considerable
sacrifices in order to keep the service going. But rents and mortgages still needed
to be paid.
Coping with tensions and stress
As earlier chapters and the previous section have suggested, both staff and
management committee members provided illustrations of how stressful the
changes actually were, in their experience. Among the sharper examples was the
case of a Law Centre where staff had collectively decided to take a pay cut (despite
being aware of the problems this might cause for some staff, particularly those
with family commitments). Making staff redundant had clearly been stressful for
management committees too, as well as for the staff involved, as were decisions
about changing staff conditions of service such as maternity leave, in order to
make savings. Being in what felt like a “state of crisis” was stressful, in any event.
People spoke of feeling trapped by the challenges of survival from day to day,
without the time to focus upon longer-term solutions. A number pointed to
what they identified as “worrying levels of stress” as a result of these insecurities.
However, some referred to finding ways of managing their time more effectively.
There were also references to the need to learn from time management practices
in the private sector. One lawyer reflected that “you’ve got to have targets … and
a private mentality” in order to survive. He himself had worked in the private
sector for a period precisely in order to acquire these skills, which he had then
brought to the Law Centre when a job had come up there.
Others referred to the reality that Law Centre clients could also be challenging,
“exasperating at times”. Given that there were people with addiction issues
and mental health issues among Law Centres’ clients, and given that clients
were likely to be stressed already when they came to seek legal advice, this was
not surprising. Ways of coping with challenging behaviours included the use
of humour – and sharing experiences with colleagues afterwards – to manage
situations without impacting on the service to clients.“We just laugh it off ” with
colleagues afterwards, one manager explained when discussing ways of coping
with challenging behaviours from clients.
So people were adopting a range of strategies in response to the stress. Good
team work was frequently cited as a source of support. “We do try to support
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each other”, an administrative worker explained, adding that if someone was
really under pressure “then everyone rallies round and gives them the space they
need”. “A fantastic support network among staff ”, commented someone from
another Law Centre. “It’s stressful but this is a nice environment” a lawyer in yet
another Law Centre commented,“sharing ideas, getting suggestions”, with good
levels of support between colleagues from other agencies as well as from the Law
Centre itself. There were also references to regional groups of colleagues from
other Law Centres and from the LCF, for instance.
Some also spoke more personally about their strategies for coping with stress.
For example, a management committee member/trustee explained how she
set out to distinguish those issues where it was possible to make some impact
from those where it was not feasible, and then how “to stop anguishing about
the latter” – easier said than done, in practice, it was agreed. Another respondent
explained that he did “a lot of running” to relieve the stress, adding that he still
felt depressed sometimes – and angry too, in the face of “commissioners who
don’t really understand the impact of what they are doing”, whereas basically “all
we want to do is to advise people”.
Demoralisation and/or the social reproduction of continuing
‘labours of love’?
So, was there evidence that the public service ethos was being undermined? In
summary, as the previous section has demonstrated, there was clearly evidence of
demoralisation and stress, leading some of those interviewed to decide to leave
their jobs or to stop serving on management committees.Those who were taking
such decisions seemed to be doing so with considerable reluctance, though.
Demoralisation seemed to be generally linked to frustration at the difficulties in
providing clients and communities with the types of services that they needed,
rather than with any more fundamental rejection of the ethos and values of Law
Centres per se. Realistically, funding insecurities were a factor in such decisions,
as some of those who have been quoted above pointed out.There was widespread
recognition that voluntary efforts would not be able to fill the gaps if funding
were withdrawn. But none of this suggested any wholesale retreat from public
service values more generally.
On the contrary, there was plenty of evidence to suggest that individuals and
groups were providing unpaid labour, often to a considerable degree, in order
to keep services going in challenging times. For some this was exacting a toll in
terms of personal stress, with evidence of stress-related sickness and some evidence
of potential burn-out. Much of the work was inherently stressful in any case,
and there were other causes of stress to be considered too. But public service
modernisation, as introduced with the Carter reforms, was adding new levels of
stress, which were being compounded because of the emotional commitments
and values of so many Law Centre workers and volunteers.
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Alienation and demoralisation, or continuing labours of love?
Previous research (Burdett, 2004) suggested that the motivations, values and
commitment that long-established Law Centre workers demonstrated were likely
to prove to be passing phenomena. Burdett raised concerns as to whether the next
generation of ‘Thatcher’s children’2 could be expected to be motivated in very
different, more instrumental and far more individualistic ways.This was certainly
the view expressed by a number of long-established public service professionals
in other client-facing positions (Hoggett et al, 2009).
There was some evidence that long-established professionals harboured such
fears for the future of the public service ethos. Several spoke of their concerns,
as younger people were perceived as being far more individualistic and far more
instrumental in their attitudes towards their jobs, lacking the types of commitment
and political understanding that had been characteristic of earlier generations of
Law Centre staff and volunteers.The next generation was “very different” in the
view of one of those interviewed, for instance. They were “not as political, not
as idealistic” and a “whole lot more sensible” (in terms of their attitudes towards
their future careers).
A young lawyer in the same Law Centre echoed this last point insofar as she
recognised a generational difference when it came to attitudes to funding and
job security. She explained that younger people like herself tended to be more
used to the fact that jobs were so often short term – precarious employment was
the norm. (She was on short-term funding herself.) In her view, though, this did
not mean that younger people were less committed than people who had joined
Law Centres in the past. Older people typically had very strong principles.Their
experiences were different from those of younger people. But younger people did
also develop commitment, too.The young lawyer herself appreciated the ethos and
values of the Law Centre, which she described as being “very principled here”.
There was “a real belief in some of the old fashioned principles … about access
to advice ... quality of the advice” for all, regardless of ability to pay.
Summarising generational differences, a manager from another Law Centre
described some of its young legal volunteers as “really brilliant”. There were
some differences from those who came to work in Law Centres in the early days,
the 1970s and 1980s, many of whom had been more politicised, perhaps. The
younger staff and volunteers tended to come with what the manager described as
rather less of a “political perspective” (implying perhaps that they tended not to
start from a coherent political analysis of the underlying structural barriers to be
overcome in order to be effective in promoting strategies for social justice). But
the lack of an underpinning political perspective did not mean that younger staff
and volunteers were interested only in casework, in her view. On the contrary,
they were also interested in campaigning on justice issues. Their experiences of
working in the Law Centre also broadened their appreciation of some of the
problems that people actually faced. “‘Now I get it’, they’d say”, the manager
added. One of the present authors overheard a young volunteer in the same Law
Centre make precisely such a comment, as he explained how and why he was
involved in activities related to the Justice for All campaign.
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Nor did there seem to be a problem, in terms of young people’s interests,
in pursuing legal careers with an emphasis upon access to justice. One of the
universities that specialised in providing opportunities for learning through handson experience illustrated this with reference to the competition for places. They
were vastly over-subscribed – which seemed to indicate that these representatives
of the next generation were not at all uninterested or unmotivated.There would
seem to be parallels here with John and Johnson’s (2008) findings on the lack of
clarity on generational differences, as discussed in Chapter Three.
In summary, some forms of the public service ethos seemed to be surviving
and to be being transmitted to the next generation. But there was also evidence
that this was being achieved at considerable cost in terms of stress and potential
burn-out, labours of love and blood, sweat and tears.
Notes
1
The Law Society, http://juniorlawyers.law society.org.uk, accessed 25 February 2012.
2
The term ‘Thatcher’s children’ has been used to imply that young people who were
brought up in and just after the years when Margaret Thatcher was prime minister were
socialised into a relatively individualistic, competitive and private market-orientated
cultural climate.
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NINE
Access to justice for disadvantaged
communities: value and values
Access to justice was central to the principles upon which the post-war welfare
state was established, as Chapter One explained, demonstrating the importance of
Law Centres’ contributions to the provision of access to justice for all, regardless
of the ability to pay. How, then, were public service modernisation agendas being
experienced in this vitally important but relatively under-researched field? And
what might be the wider implications for social justice agendas more generally?
As the Introduction explained, Law Centres were selected for study for a
number of reasons, including the fact that they were offering precisely the
access to information about rights and responsibilities that had been identified
as centrally important to the public service modernisation agendas, agendas
through which governments have been aiming to shift the balance of power and
accountability from public service providers towards more active and informed
citizens and service users. Were these policy agendas facilitating the development
of new forms of professionalism? Or, conversely, were they being experienced
as promoting new forms of de-professionalisation (Banks, 2004), demotivating,
demoralising and potentially undermining the occupational values and identities
of those involved in Law Centres’ work?
There are parallels here with wider debates. As Clarke and others have pointed
out, public service modernisation has been posing major challenges as different
aspects of the public realm have been subjected to processes of dissolution (Clarke,
2004). Although these processes have themselves been subjected to refusals and
negotiations, as professionals and others have engaged in strategies of resistance, the
extent to which they have been successful has been the subject of debate (Clarke,
2004; Kolthoff, Huberts and Heuvel, 2007), with continuing arguments about
the ethical implications, and debates about the implications for professionalism
in public services.
More specifically, in what ways were these changes being managed; what
strategies were being adopted to cope with competing pressures and demands
while maintaining professional ethical standards; how might strategies to respond
to public service modernisation vary in differing settings; and what might be the
implications for professional education and continuing professional development?
There were issues here with potential relevance for debates on the future of the
public service ethos and the future of the welfare state more generally.
Previous chapters have examined the evidence, illustrating the dilemmas and
tensions that have been identified and some of the strategies that have been
adopted, as Law Centre staff and volunteers have attempted to address the
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challenges while maintaining Law Centres’ ethos and their own professional
values. As previous chapters have also explained, Law Centres’ ethos and values
have been closely linked with the motivations and values of those who have been
involved with them, whether as paid staff or as volunteers. This helps to explain
why the dilemmas inherent in managing the challenges were being experienced
so painfully, in so many cases. Before we summarise these findings and their
possible implications for debates about the public service ethos and values more
generally, this chapter reflects on the evidence for the value of Law Centres
themselves.What claims were they making, and how far were these claims being
corroborated by other stakeholders?
The value of Law Centres
Law Centres are embedded in their communities and answer to
committees of local people. They assist vulnerable people when they
suffer injustice, educate people about their rights and tackle local
problems. (Law Centres Federation website: www.lawcentres.org.uk)
This assertion was corroborated by stakeholders. A volunteer lawyer whose law
firm encouraged its employees to undertake a range of pro bono work explained
the need for Law Centres as follows:
“I think there are certain things that society thinks people are entitled
to: shelter, food are the obvious ones but at some point the right to be
treated fairly comes along and the only way you can enforce that is
through the law.You get some people who have been treated terribly
and that is only prevented if people have recourse to the law.This is the
system that ensures fairness, or what passes for fairness. I think if you
can pay for the services you should but I guess it is often the people
who can’t pay who really need the law for fairness. I guess a society
without legal representatives is a society without the law because the
rules just mean nothing, don’t they. If you don’t know what you are
entitled to and you don’t follow the paths to get what you are entitled
to, then it is as if the law did not exist.”
As this law firm volunteer proceeded to point out, without Law Centres,
democratic rights exist only on paper, rather than being genuinely available.This
links back to the discussion in Chapter One of the central importance of access
to justice as a defining characteristic of the post-war welfare state. One of the
defining characteristics of Law Centres was the virtually universal appreciation for
the work they did in providing access to justice. A former client testified to this:
“Finding the Law Centre was like winning the Lottery. For me I think
they’re the people’s lawyer, the poor people’s lawyer.They represent the
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Access to justice for disadvantaged communities: value and values
people who cannot afford it and they fight for these people. Because
in their view we’ve got rights just like the people who’ve got the
money and we’re entitled to the same thing as the people that have
got the money”.
Appreciation of Law Centres by other advice agencies across the statutory and
voluntary sector was strongly evidenced from the stakeholder interviews. These
agencies saw the Law Centres’ sine qua non as being “accessible to all”. An advice
worker whose agency collaborated closely with their local Law Centre reflected:
“The uniqueness of the Law Centre is that it is actually accessible to all.You can
be anyone, which is really good. If you haven’t got any money you can access
the Law Centre and because it is a community based organisation you see all
sorts of people there.”
This was central to Law Centres’ ethos. The advice worker explained that the
Law Centre’s ambience was welcoming and informal, which meant that “you
feel you can relax and express yourself a little bit more”, adding that “being in
that environment it does make a difference”.
“If there isn’t an organisation like the Law Centre available to people
then where do people go? What do people do then? Is that not a
form of concern for the government; that there are people who are
abandoned and unsupported? Quite often people will just stay in their
circumstances which isn’t good because they are not getting the legal
support, which is not ethical, it is not right, because of your situation,
because you can’t access a service. It brings in a hierarchy thing, with
society, how all those who can actually afford it, their needs will be met,
but those who can’t ... their needs will not be met and it leaves a hole.”
A local authority manager was also quick to emphasise the ways in which Law
Centres could lead to improved managerial outcomes:
“With homelessness, when it comes to challenging the outcome of
our decision, we can’t do that. Advice will have to be given by an
independent person or group who would look at issues and satisfy
themselves as to the necessity for such a challenge. Overall the Law
Centre will stand guard on behalf of the individual and say,‘you know
what, this is not compliant with the necessary requirements of the
law, you have fallen short of what you set out to deliver, you need to
rectify this, otherwise you face a challenge in court’. And for the most
part the local authority [will] turn around and review their decision
and see whether they were right. But usually at that point, justice is
seen to be done because they reconsider more carefully”.
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The dual outcome of improved access to services and justice was thus being
achieved.
However, for a young volunteer who was seeking work experience at a local
Law Centre after graduating from college, what most stood out was the humanity
and commitment encountered in a Law Centre:
“You’re likely to be helped here. You will be helped to the best of
their ability and people will do the best they can and considering the
budget and the pressures that they have to go by, they do a lot for the
people that come in. They’re very understanding, and the language
barrier sometimes, the effort that is put in to find an interpreter, little
things like that. It’s all that extra effort that you won’t get anywhere
else, that easily. Especially considering that some of the people here
are not being paid and there are a lot of volunteers. To put that effort
in, knowing that you’re not actually getting any money from it, that’s
a rare thing.You just feel like you’re being cared for, you do.You feel
like you’re getting the help you need, because to go somewhere else,
you’re not going to get it and you’re just going to be struggling.They
are actually here for the community. That’s what they’re supposed to
do and they do what they’re meant to do.”
The holistic approach of Law Centres was also particularly valued. For example,
a local council manager spoke of the nature of the added value engendered by
the local Law Centre in the following terms:
“So usually the Law Centre would look at the whole issues concerning
the person’s circumstances and examine all of the parameters set down
and satisfy themselves [as to whether] the local authority [has] done all
they are required to do by law. Is there any more information from the
individual that they have not bothered to interrogate or even ask the
individual to provide? It is essential to continue to make reasonable
inquiries, not just slap-dash inquiries.”
The local council manager feared that without this independent oversight and
intervention processes too often became cursory and inattentive. Rather than
defensively interpreting the challenging questions asked of his department he
argued such enquiries were “essential”. By looking at the “whole issues” and
asking the questions that the local authority had not “bothered to ... ask”, the
Law Centre broadened the reach of the law and the efficacy of the service and
enhanced access to justice. From the client’s point of view it was the way they
were dealt with holistically, as well as with warmth, that made all the difference.
In addition to providing access to justice for individuals and communities
who would otherwise have no recourse to the law, Law Centres were also
valued for providing a wide range of specialist knowledge and skills. Chapter
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Access to justice for disadvantaged communities: value and values
Six has demonstrated the potential value of partnership working, when Law
Centres were working collaboratively with other agencies. These benefits were
identified by stakeholders who commented on the multiple benefits accrued
from collaboration, notably in the provision of seamless services and capacity
building across a local area.
Law Centres were valued for their contributions in a number of these ways,
including leading on joint working initiatives, servicing interagency forums and
providing bespoke training for advice workers. The synergies that arose from
networking across organisational boundaries were highly prized by both statutory
and voluntary sector colleagues. As one advice worker explained:
“Organisations like [ours] are reliant on Law Centres to inform us
about consultations which are out. It may even be preparing a template
for a consultation response, so that the responses go in.The voluntary
sector does not have time to do this because they are busy providing
frontline services. It is important for the sector to be mobilised,
represent our communities and have a voice.”
This advice worker then cited the importance of the local Law Centre’s value
base and proven leadership:
“They come from a very anti-racist, anti-sexist perspective.They have
that ethos embedded in them in terms of what they do on a day-today basis. It’s not an afterthought; it’s not something that we could say
they’re not going to be looking at that point.They’ve got that political
awareness. They understand the whole political context of why they
were here in the first place and what they need to be doing.And they’ve
held onto that and I suppose that’s one of the reasons they’re finding
it difficult to hold on, like everybody else really. I always remember
going to a Voluntary Sector Forum meeting and everyone’s very formal
and the [Law Centre] worker would speak up and challenge. They
had the confidence to do that. For another organisation this may be
difficult.The worker put their head above the parapet, put it that way
in order to make their point and we have a lot of admiration and a
lot of respect for that.”
The implementation of the Carter reforms had been associated with significant
reductions in the time spent on anything other than case work. But there was also
some evidence that Law Centres were continuing to find ways of contributing to
wider policy and preventative work.Where preventative and policy work was still
taking place there was also evidence that it was being valued by other stakeholders.
One council procurement officer illustrated this point, giving an example of the
dilemmas involved in making a review of funding:
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Access to justice for disadvantaged communities
“If we were to cut some of the services that our third sector [agencies
such as the Law Centre] deliver we potentially will see an increase of
people coming to see us for advice. That’s one side, and without the
prevention early on, for example on homelessness, we would be having
to potentially pick those clients up and put them into some form of
temporary accommodation. That has an impact on our stats and our
ability to deliver and increases our costs. So you take from one end
and you’re actually increasing at the other end and there’s a tightrope
there in terms of balancing prevention with statutory functions. That
all needs to be taken account of as part of the review.”
The preventative work of Law Centres has had both social and economic value, as
Chapter Seven argued in more detail. By feeding back intelligence into legal and
partnership frameworks, for example, systems and performance measures could
be improved, including avoiding unnecessary litigation.While these contributions
were valued by stakeholders, there was also widespread recognition that these
benefits might no longer be available in the future. As a local council manager
recalled:
“Over the years I’ve noticed that the Law Centres have blossomed
into a group of community centres whereby legal advice can be
obtained, social policy issues can sometimes be championed. But the
near disappearance of legal aid to them has shackled their activities
completely – it is almost killing off the services they provide in the
various community groups. Some of them are shutting down and most
people are threatened with their closures. So in an absence of adequate
funding either through private individual contribution, or charitable
groups, then Law Centres are set to disappear. It would be a sad case
if that happens in this country because we have this tradition of very
good Law Centres … It would be really sad if they all disappeared
because of lack of funding or changing government policy or local
authority funding.”
A funder explained that times of austerity made Law Centres especially vulnerable
to closure, however:
“In the past [Law Centres] have not been popular ... with some
local authorities. Sometimes the officers are enlightened and see
the opportunity to learn from feedback. It is often perhaps about
convincing councillors who are going to have somebody knocking on
the door saying ‘don’t close my library’. I often think that sometimes,
if you are faced with cuts, like the authorities are now, the challenging
situation may not be as welcomed; less staff, less time, less money ...
I think that there is a fear from the Law Centres that that could be
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more of an issue in the future and when they do challenge they are
not popular and when they do this [in the context of austerity policies]
they’ll become even less popular. There is a view, I don’t know how
true it is, that the Citizens Advice Bureaux get more funding than
Law Centres because Law Centres are more challenging towards the
local authority. It is more in terms of professional legal advice, which
CABs also do but sometimes it is more generalist.”
But Law Centres were the linch-pins of strategic approaches to advice service
provision. A local authority officer in one city explained that “they fit into the
network and they are a city-wide service, although they do work sometimes with
particular groups.The service is complementary, a specialist service that isn’t met
elsewhere. The other advice services give advice, the Law Centre gives specialist
legal advice that isn’t available elsewhere.”
An advice worker from a neighbouring agency reflected in similar vein that
“I really don’t know what we’ll do if they [the Law Centre] don’t survive the
next round of cuts”.
“Save our Law Centres, they are crucial”, another stakeholder concluded.
Ways forward facing uncertain futures?
Although there was evidence of considerable demoralisation among Law Centre
staff and volunteers, there was also powerful evidence of continuing commitment.
Despite their negative experiences, those who were most critical of public service
modernisation agendas were among the ones who were also most determined
to find ways forward, working smarter without losing sight of Law Centres’
ethos and without compromising their own professional values. But there were
stressful dilemmas to be faced, it emerged, and painful choices to be made in the
context of the proposed – and subsequently enacted – legislation to restrict the
provision of legal aid still further. This would have the effect of moving legal aid
decisively away from ‘a safety-net legal service working like a fifth pillar of the
Welfare State’, critics argued, and towards a minimalist ‘rump service to cover
people accused of a crime and civil cases for the poorest in which human rights
were directly engaged’ (Hynes, 2012, p 100). Considerable emotional labour was
being expended as Law Centre staff and volunteers struggled to hold on to their
values in face of these challenges, as previous chapters have already demonstrated.
Previous research had suggested that earlier generations of Law Centre staff and
volunteers had been characterised by stronger commitments to Law Centres and
to public service values overall. In contrast, younger generations were becoming
more instrumental in their outlook, it had been suggested, and less troubled by
the dilemmas of public service modernisation and marketisation agendas more
generally (Burdett, 2004). These trends were not so clearly identified by this
research, however. There were indeed some generational differences, as earlier
chapters have demonstrated. But there were also examples of younger staff and
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volunteers demonstrating strong commitments; commitments that were typically
strengthened further as a result of these people’s experiences in Law Centres.
Education and training for future generations
As Chapter Eight illustrated, there were examples of students applying for law
courses on the basis of their specific commitments to developing knowledge and
skills in the field of legal aid work; commitments that they could take forward
whether as Law Centre staff or as volunteers providing pro bono sessions in the
future. Law Centres had potentially important contributions to make to legal
education and training for the future, providing opportunities for widening
knowledge and skills as well as making students aware of professional issues and
ethical dilemmas that might otherwise have passed them by, virtually unnoticed,
if their training had been confined to experiences in more commercial aspects of
the law.The public service ethos may be socially reproduced in such ways among
individual students and volunteers, wherever they subsequently end up working.
There would seem to be implications in relation to the education and training of
other professionals too. Like their counterparts in the legal profession, community
workers and other community-based professionals need to be aware of the
issues and dilemmas involved. And they need to have the knowledge and skills
to manage the associated tensions. As previous chapters have suggested, public
service professionals have to operate in a dilemmatic space in which there may
be no self-evidently right thing to do (Honig, 1996). Both professionals and
street-level bureaucrats experience tensions, it has been suggested, in attempting
to balance colliding value systems and competing demands in the public sphere
(Lipsky, 1980; Hoggett et al, 2009) under increasingly challenging circumstances in
the context of public service modernisation. As previous studies have concluded,
professionals such as development workers need to have the capacities to manage
these tensions with reflexivity, and the ability to cope with emotions, remaining
passionate as well as thoughtful (Hoggett et al, 2009). And their education and
training needs to support them in developing these capabilities.
Grounds for optimism?
In summary, there were grounds for some optimism in terms of the reproduction
of value commitments among the next generation. As the (then) Law Centres
Federation Annual Report for 2010–11 described its position, there was also
optimism more generally ‘in the face of austerity’ (Law Centres Federation,
2011, p 5). ‘The fight for legal aid is the fight for what is just and it is a fight for
our clients’, the report stated. ‘We must do as Law Centres have always done –
fight fearlessly for our communities’; and it concluded that ‘Law Centres will
survive the storm’. The Annual Report of the (by then rebranded) Law Centres
Network (LCN) for 2011–12 maintained this firm commitment.As the co-chairs
emphasised: ‘we are not defeatist. Law Centres and the LCN have been coming
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together throughout this year, working on ways to continue our service to our
communities as they are faced with major challenges such as the impact of welfare
reform’ (Law Centres Network, 2011–12, p 1).
There were also grounds for optimism in terms of the development of survival
strategies. Chapter Six provided illustrations of such strategies in practice,
demonstrating ways of using resources more cost-effectively while continuing to
provide services holistically. There were examples of Law Centres continuing to
meet individuals’ needs for information and advice while continuing to promote
preventative approaches, for instance. And there were examples of Law Centres
working collaboratively with other agencies rather than competing with them,
in order to provide more comprehensive services to clients across localities. In
Avon and Bristol, for example, the Advice Network coordinated services across
the city and neighbouring counties, with the Law Centre providing specialist
legal services.The aim was for agencies to provide a cohesive map of information,
advice and advocacy, based upon collaboration with local authorities and with
each other, instead of being rooted in competition for scarce resources.
Similarly, in Coventry Advice Services, Coventry had developed a joint strategy
to meet clients’ and communities’ needs holistically as well as cost-effectively.
Two-way referral relationships were developed between generalist and specialist
agencies and vice versa with what was described as a very successful electronic
referral system that was developed with Big Lottery funding. This illustrated the
potential scope for agencies to secure additional funding on the basis of such
partnership approaches.
There had been comparable developments in Nottingham, where a group of
not-for-profit advice agencies had come together to form Advice Nottingham.
Here too, this had improved the coverage of services as well as providing mutual
support and enhanced opportunities for responding proactively in the context
of funding pressures (“getting ahead of the game”, as one interviewee explained
it). And here too, the Law Centre had been central to these developments. The
outcome had been a joined-up structure that effectively linked generalist and
specialist provision, operating in more cost-effective ways without losing sight
of the interests of clients and communities.
The need for continuing public sector support as part of
longer-term strategies for access to justice for all
Ironically, the Cabinet Office report on Not-for-profit advice services in England
(Cabinet Office, 2011) identified precisely such strategies as potential ways forward
for advice services; strategies such as effective collaboration, early intervention
and preventative work, along with greater use of telephone and web-based advice
and increasing efficiency more generally. Yet this report offered only transition
funding arrangements, rather than longer-term support, despite recognising the
pincer effect of diminishing funding to meet increasing demands for advice
services (the result, to a considerable extent, of changes in public policies towards
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Access to justice for disadvantaged communities
the provision of social welfare, as the report also recognised).This was not enough,
even in the short-term, let alone sufficient as a longer-term strategy to ensure
access to justice for all.
The challenges and dilemmas that public service modernisation have posed
for the ethos and values of staff and trustees emerged powerfully. But so too
did the determination of those engaged in developing alternative responses: reexamining ways of providing services most effectively while holding on to the
Law Centres’ underlying ethos, developing more efficient ways of managing their
operations without losing their commitment to team work, increasing the use of
voluntary effort without exploiting unpaid labour, using new technologies without
undermining the importance of personal face-to-face support for clients, working
collaboratively in partnership with other organisations and agencies rather than
via strategies based upon increasing competition.
Previous chapters have also demonstrated the human costs, including the
emotional labour involved as well as the unpaid overtime and the voluntary
effort that all this has required. However, it would seem unlikely that Law Centres
could survive for long, without continuing public support. Despite the efforts to
find ways of working smarter, to develop new forms of income generation and
to attract alternatives sources of funding and volunteers, the future sustainability
of Law Centres would seem to depend primarily upon underpinning by a firm
foundation of public resources.
Short-term savings might be achieved by removing areas of law from the scope
of legal aid, it was argued. But this would entail longer-term financial, social and
human costs, with resource implications for the future. For example, Steve Hynes,
director of the Legal Action Group (Hynes, 2012) reviewed the effects of cuts
in social welfare law. Through a total of £280 million of cuts in funding from
civil legal aid, the government estimated,1 around 600,000 people would lose
out on help with everyday civil legal problems. In making the alternative case
for investment rather than cuts, the Legal Action Group highlighted the shortsightedness of such cuts in preventative and economic terms. Its research made
the case that ‘£60m in expenditure on legal aid advice saves the state £338.65m
in expenditure on other services’.The report proceeded to spell out the leverage
involved: ‘Put another way, one pound expenditure on legal aid saves the state
around six pounds in other spending’ (Hynes, 2012).
In terms of long-term savings, then, the case for cutting back on poor people’s
access to justice was open to question. Marketisation strategies were criticised
for embodying their own internal tensions in relation to the provision of legal
aid, as indeed more generally (Moorhead and Pleasance, 2003). More emphasis
upon preventative strategies might prove to be far more effective. The provision
of more comprehensive access to debt advice could reduce the number of
cases involving rent arrears and the risk of homelessness, for instance. Improved
administrative procedures could reduce the number of appeals in asylum cases
and disability benefits cases – reducing the stresses experienced by those exposed
to dysfunctional decision-making processes in the first place.
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The criticisms of marketisation in relation to the provision of legal aid go
beyond such questions of cost-effectiveness for the longer term, however. As
the Scottish Government had already recognised, in contrast to the Coalition
government’s approach, there were wider considerations to be taken into account
here.‘[W]holesale reductions to scope [of legal aid] can have a damaging impact on
access to justice and can have adverse consequences for other parts of the justice
system as well as wider society’, the LAG report concluded. Reducing legal aid
to a rump service could prove to be socially destructive, and particularly so in
the context of austerity. These wider implications were acknowledged even by a
Conservative MP (subsequently a minister in the Ministry of Justice) when the
LASPO Bill was under consideration, reflecting that ‘to stem the flow of legal aid
when we are in such a critical condition, amid a stifling recession, could prove
devastating’ (Helen Grant, MP, Guardian, 2 February 2011).
As the publication Austerity justice by Steve Hynes, director of the Legal Action
Group, has argued, campaigning for access to justice must continue (Hynes, 2012).
The broad coalition that campaigned for amendments to the LASPO Bill could
have sown the seeds of recovery, he wrote, building support for the development
of new and more comprehensive approaches to the provision of legal aid. The
aim of such continued campaigning, Hynes concluded, must be to persuade the
next government to map legal needs and develop a strategy for providing access
to advice and support on social welfare law in England and Wales – putting right
the damage that the cuts introduced by the LASPO Act were expected to cause.
Wider implications?
Access to justice has been the hallmark of the post-war welfare state and, indeed,
of democratic societies more generally. ‘The Law is the bedrock of a nation; it
tells us who we are, what we value, who has power and who hasn’t’ (Kennedy,
2005b, p 3). As a lawyer who had been providing pro bono advice in a Law Centre
reflected, without Law Centres people in the communities that they currently
served would struggle to access justice.“What is justice”, she concluded,“if people
don’t understand it and can’t access it?” Law Centres enable people who would
otherwise be unable to do so “to have access to justice and recourse to remedies”.
‘This is what lawyers provide to citizens, and what should be available to citizens
in democratic societies under the rule of law.’ This takes the discussion back to the
starting point, the centrality of access to justice to debates on social welfare and
social justice – the fifth pillar of the welfare state. Previous chapters have illustrated
ways in which the marketisation of legal aid has been undermining people’s access
to justice. As Morris, among others, has argued, government perspectives on
rights have been increasingly conditional (Morris, 2007), raising questions about
the extent to which successive governments have been committed to one of the
most fundamental features of democratic societies: equality of treatment for all
citizens with universal access to the law.As previous chapters have argued, this was
central to T.H. Marshall’s concept of social citizenship (Marshall, 1950) backed
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by affordable and effective access to justice. This was an essential component of
even the most limited concept of social justice: equality of treatment before the
law, regardless of the ability to pay for legal advice and legal representation.
The consequences of the residualisation of legal aid emerge even more starkly
when considered in the context of more expanded notions of social justice. As
previous chapters have also argued, the law’s relationship with the social and
political order is profoundly ambiguous; the law provides safeguards against
injustice, including injustices resulting from the arbitrary exercise of authority
of the part of the state.Yet equal treatment before the law still tends to produce
unequal outcomes when playing fields are so far from being level.This is precisely
why more expanded notions of social justice underpinned the establishment of the
first community Law Centres in Britain. Their remit was to go way beyond the
provision of information and advice to individual clients, to include preventative
policy work, advocacy and campaigning, taking up test cases, for example, as part
of strategies to tackle social injustices.
Despite the pressures, there is still evidence of Law Centres’ continuing
commitment to these wider approaches to social justice. The Migrants’ Law
Project, hosted by Islington Law Centre, provides an illustration in point. Funded
by donations and grants, The Migrants’ Law Project represents a determined
response to the loss of legal aid funding, aiming to improve the rights of migrants,
refugees and asylum seekers through the use of public law. The project provides
free legal advice and support to organisations working with migrants, refugees
and asylum seekers, including providing them with training to enable them to
negotiate more effectively with government and other relevant public bodies.And
where negotiation fails, as The Migrants’ Law Project’s website explains, they will
‘take legal action, where appropriate, to challenge unjust government policies’.2
As previous chapters have illustrated, these wider roles have been precisely those
aspects of Law Centres’ missions – challenging unjust policies in the interests of
social justice agendas – that have been most effectively undermined as a result of
marketisation in the provision of legal aid. Sommerlad has similarly argued, even
before the changes promoted by the Coalition government, that
the neo-liberal revolution has transformed the dialectical relationship
between law and society and the social form of citizenship, and is
eroding the possibility of this reformist use of the law. As a result it is
likely not only to constrict the pivotal role of law in the process of
participative, deliberative democracy, but its very reconstruction as a
residual service plays a part in producing social exclusion. (Sommerlad,
2004, pp 367–8).
As Esping Andersen and others have argued in parallel, the (relatively) social
democratic model of the welfare state that was developed in post-war Britain
set out to tame, regulate or marginalise markets so as to ensure human welfare
(Esping Andersen et al, 2002). This contrasts with more recent policies to
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promote increasing marketisation based upon envisaging service users as informed
consumers. As this book has argued, there are inherent contradictions here, when
such marketisation is applied to service users who are too poor to afford to pursue
their rights. There are tensions and dilemmas for professionals and other public
sector and community-based staff and volunteers attempting to balance their
public service ethos with the requirements of organisational survival in more
marketised policy contexts. And there are fundamental questions of value.
As citizens we need to be protected from arbitrary state action, just as we need
to be protected from incompetence or worse on the part of service providers,
including professionals such as lawyers. But this in no way implies the lack of
a need for state intervention and support, despite the inevitable tensions. On
the contrary, despite all the underlying limitations and biases, the state can also
intervene, regulating markets and providing resources for services to promote
human welfare.
There need to be powerful mechanisms to hold the state to account, of course,
just as there need to be powerful mechanisms to hold professionals to account,
more generally. But not via the importation of inappropriate market mechanisms,
public service modernisation agendas and more recent strategies for increasing
marketisation more widely.
As the evidence demonstrates, alternative ways of approaching public service
reform can be effective. Services can be enhanced and service providers can be
held democratically accountable to service users, would-be service users and
their communities without undermining the public service ethos in the process.
Marketisation is not the only, or even the most effective, way forward for the
longer term, let alone the most appropriate in terms of the quality, value – and
values – of social welfare and social justice.
As previous chapters have argued, there are powerful arguments to support the
view that there are indeed services that are too important to be left to the vagaries
of the market, such as Nussbaum’s argument in relation to higher education and
the humanities (Nussbaum, 2010). Commercialisation was less effective as a means
of procuring human blood, in Titmuss’s view, undermining reciprocity and social
solidarity. Quoting from Alexander Solzhenitsyn’s Cancer ward, Titmuss cited a
discussion between two patients as to whether an economy could and should be
built on an ethical basis: ‘Ethics first and economics afterwards?’ (Titmuss, 1970,
p 208). There are contemporary resonances here. The dilemmas posed by the
increasing marketisation of access to social welfare and social justice highlight
Sandel’s (2012) wider case for questioning: what should be the moral limits of
markets?
Notes
1
Figures from Ministry of Justice (2010), Annex A.
2
www.themigrantslawproject.org, accessed 22 February 2013.
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APPENDIx 1
Research methodology and
questionnaire
The research set out to explore the impacts of public service modernisation as
these agendas were being experienced and the dilemmas that were being faced
by professionals and volunteers providing legal services within Law Centres.The
study was planned to take place in three stages, starting with a literature review and
postal/electronic survey of Law Centre staff and volunteers in England (including
management committee members/trustees) to obtain benchmarks for the second
stage.This second stage was originally planned to involve sets of semi-structured
interviews with between 30 and 40 staff and volunteers from a sample of Law
Centres. Through this more qualitative approach the research aimed to obtain
in-depth understandings to complement the quantitative data from the survey.
The third and final stage would then involve focus group discussions to explore
preliminary findings and test conclusions before completing the research and
moving into the final dissemination stage.The original timeframe envisaged that
this would all be completed by 2011.
In the event however, the start of the project was delayed due to circumstances
beyond the team’s control. Although the research subsequently got back on
track (albeit on a revised schedule, concluding in March 2012) the context
was already changing rapidly. Law Centres were experiencing the impact of
the implementation of funding changes including the uncertain outcomes of
competitive tendering processes.
Following the election of the Coalition government in May 2010, public
policy towards resourcing legal aid came under review, with new legislation being
introduced, leading to further significant challenges for Law Centres, raising
fundamental questions about their longer-term futures.The Law Centres’ umbrella
body, the LCF (subsequently renamed the Law Centres Network), estimated that a
significant proportion of Law Centres would have very uncertain futures. During
the research period several Law Centres closed or reduced their operations, some
staff members were made redundant and further financial challenges were being
anticipated in the wake of more recent public expenditure decisions. Despite
this, however, the annual report for 2010–11 (Law Centres Federation, 2011) was
entitled ‘Weathering the Storm’, testifying to the LCF’s ‘optimism in the face of
austerity’ together with their determination to safeguard services, despite these
challenges. As the co-chairs’ concluded ‘Legal aid may be going, but our clients
are not going to disappear. And nor are we’ (Law Centres Federation, 2011).
This changing and increasingly problematic context required some flexibility
in the research strategy, as subsequent sections outline. It also required some
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sensitivity.There were occasions when those who had so generously agreed to be
interviewed were evidently stressed. The researchers needed to take account of
the challenges facing Law Centres, including the threat of redundancies for staff
and try to ensure that stress levels would in no way be exacerbated as a result of
the research process itself. In the event, however, a number of those who had been
interviewed subsequently commented that they had actually found it useful to
have had this space – to reflect upon the dilemmas that they were facing and the
strategies that were being adopted in response. The team would like to express
our deep appreciation of the responsiveness of so many Law Centre staff and
volunteers, despite these typically challenging circumstances.
Following consultation with the umbrella body, the LCF the questionnaire was
administered electronically as well as by post with questions kept to a minimum,
to take account of the then current time pressures on Law Centre staff. This
appendix concludes with details of the questionnaire.
Despite some initial doubts as to the extent to which the survey would be
completed at all, in these circumstances, the final total of completed questionnaires
was 107. In total these replies referred to experiences in 25 different Law Centres
(out of a total which was given as 55 at that time).These covered a range of Law
Centres, urban and rural, large and small, including longer and more recently
established ones. Appendix 2 provides details of the 43 Law Centres that were
included in the research, overall (including the interviews as well as the survey
responses).
At this point it should also be emphasised that the Law Centres varied
considerably in terms of their histories, funding, size, organisational structures,
overall focus and the areas of law that they covered (with varying administrative
and funding procedures and processes). This meant that issues identified in any
one Law Centre would not necessarily have applied in the same ways elsewhere.
And the impact of subsequent policies and further potential changes to these may
have been experienced in differing ways.
Following on from the survey, semi-structured interviews were completed, to
explore the issues that had been raised, in greater depth. Appendix 3 provides the
topic guides for these and subsequent semi-structured interviews. Interviews were
completed with 54 people from 28 Law Centres. Of these 45 interviews were
carried out on a one-to one basis. Two sets of colleagues (i.e. four individuals)
chose to be interviewed together with a colleague and four further people were
interviewed as a group. In addition, three other individuals were present for
part of a joint interview (two of these left the group interview in order to see
clients before the discussions were completed and one joined an interview with
a colleague (being invited to join in order to add comments from their particular
perspective, as a young volunteer).
Almost all the interviews were carried out in person, but a small number (2
interviews) were carried out over the telephone. In one case this was due to bad
weather that disrupted travel plans. The other telephone interview was with a
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Appendix 1: Research methodology and questionnaire
respondent who was too busy to meet but was prepared to be interviewed by
telephone.
In each case, those interviewed were subsequently provided with an (edited)
transcript of the discussion and offered the opportunity to point to any corrections
or significant omissions.The overwhelming majority agreed that this was indeed
an accurate record of the discussion.The small minority of those that did respond,
added minor points of clarification, or identified comments that should not be
directly quoted in case this could identify particular individuals.
The transcripts were analysed and themes identified, using NVivo software.
An Interim Report, summarising the findings from this analysis was then
circulated to those who had participated and their views invited, for further
discussion. The reality was, however, that although a few did express satisfaction
at receiving feedback, there was very limited response, overall. This was a very
challenging period for Law Centres in relation to tendering processes which
might help to explain why it was difficult to engage in more detailed discussions
at that stage.
Having completed this round of interviews it was decided, in addition, to
interview a range of other stakeholders. This was to obtain their views on the
issues in question together with their views on Law Centres’ strategies for how
to survive in such a challenging climate, without compromising their ethos
and values. This next round of interviews provided triangulation, enabling the
researchers to compare and contrast the views – and claims – of Law Centre staff
and volunteers with the views of other stakeholders. More specifically this would
also add depth to our understanding of the importance of and the scope for
collaboration between Law Centres and other agencies, whether in the voluntary
and/or statutory sectors.This was emerging as a central theme in terms of forward
looking strategies for survival.
So for this second phase 58 semi-structured interviews were carried out
with voluntary sector advice agencies’ and voluntary sector networks’ staff with
knowledge and experience of working with Law Centres, local authority officers
and local councillors, representatives of other funding agencies (including the LSC),
lawyers with particular expertise in legal education and training and private sector
lawyers, including those providing pro bono advice, together with a number of
other volunteers (as this group had been relatively under-represented in the first
round of interviews). Of these second round interviews 49 were face to face and
9 were telephone interviews. Here too, each person interviewed was provided
with an edited draft of the discussion and invited to point to any corrections or
significant omissions. Once again very few chose to make any such suggestions,
the overwhelming majority simply agreeing that this was indeed an accurate
record of the discussion.
In addition there were two meetings with the LCF (now the LCN) in London
to explore their perspectives and then to offer interim feedback, together with a
telephone interview with a member of the LCF staff with specialist knowledge
of the Northern region.
133
Access to justice for disadvantaged communities
In order to build up more detailed pictures of the ways in which Law Centres
and other stakeholders were interacting together, this final stage of the research
focused upon a limited number of geographical locations, selected to cover a
range of contexts. In all, eight locations were selected for further study. Through
visiting these locations on a number of occasions, the researchers were also able
to develop more holistic perceptions of each context together with the operations
and ethos of the Law Centres in question.
This raises the important issue of bias however. Whilst the Law Centres
that were being referred to in the second phase were experiencing significant
challenges, they were also amongst those that were developing some of the most
apparently promising survival strategies in response. The pictures that emerged
from this second phase of the research were not necessarily representative of the
situation nationally, as a result, with less evidence of the type of demoralisation
that had been emerging from some of the first phase of interviews (although, as
it subsequently emerged, two of the Law Centres in this second phase were not
just facing challenges but were actually struggling to survive).
The other significant limitation was that the research did not include interviews
with service users per se. This would have involved additional resources way
beyond the perimeters of this particular study. In the event, some user views were
obtained; for example some volunteers and indeed some staff had previously been
service users themselves. Some Law Centres had compiled user views themselves
and these were made available. And some management committee members and
some external stakeholders offered reflections on the user feedback that they had
received. For example other advice agencies were very aware of the importance of
taking account of user views, when making decisions about referring future client
to Law Centres.There were, in addition, opportunities for researchers to observe
some aspects of Law Centres’ operations such as witnessing clients’ experiences
in reception, when they arrived at Law Centres seeking advice. Comments on
some of these observations have been included. But overall, the views of users
themselves could not be evaluated systematically, on the basis of this research.
These limitations need to be borne in mind, then. Despite these inherent
limitations, however, the findings can be argued to have significance still, in their
own right.They illustrate the ways in which public service modernisation agendas
have been experienced by staff and volunteers and the dilemmas that they have
been facing in this significant but relatively under-researched component of
the Welfare State. And they provide pointers in the direction of potential ways
forward, ways in which Law Centres were developing strategies to survive and to
succeed in continuing to provide access to justice for disadvantaged individuals and
communities – without losing sight of their professional ethos and public service
values – even in the context of the challenges that they were currently facing.
134
Appendix 1: Research methodology and questionnaire
The questionnaire
The impact of changes in legal aid for Law Centre staff, volunteers
and management committee members: researching the challenges for
Law Centres’ values and ethos
The findings will be fed back and should be useful to Law Centres and the Law
Centre Federation.
The study is being carried out by researchers at Goldsmiths, University of London.
The questionnaire takes 5–10 minutes to fill in.
The data will be strictly confidential and anonymous.
We very much appreciate your participation in this survey!
Section 1: You and your involvement in Law Centres
1. Which Law Centre have you been involved with, for how long and in which
role? (Please start a new column after every change of Law Centre and/or role)
Law Centre
/Role (1)
Law Centre
/Role (2)
Law Centre
/Role (3)
Name of Law Centre
Period of time
Volunteer
Staff member
Management Committee member
Administrator
Finance Officer
Community worker
Solicitor
Director
Chair of Management committee
Other:
135
Access to justice for disadvantaged communities
2. How important to you were the following factors, when you decided to work in/
give your time to a Law Centre?
very
important
fairly
important
not very
important
not
important
at all
Concern with meeting community
needs for legal services
Reasonable pay and conditions
Challenging job
Concern with addressing social
justice issues
Offers valuable experience/builds
c.v.
Other (please specify):
3. Has your interest/motivation changed over time?
Yes
No
If so, in what ways?
Section 2: Current issues in Law Centres
4. Research for the Law Centres Federation has raised a number of issues and
concerns about the introduction of the Unified Contract system, following the
Carter report. In each case, on the basis of your own experiences, please would you
identify how far you agree or disagree with the following statements, that this is
indeed a problem:
136
Appendix 1: Research methodology and questionnaire
strongly
agree
broadly
agree
broadly
disagree
strongly
disagree
don’t know
Standardised fixed fees underfund the
complex debt, housing, employment,
education, mental health and
community care cases that law
centres focus on.
The Unified Contract system places
increased administrative burdens on
law centres.
The scheme potentially fosters
competition between local providers,
putting at risk longstanding
partnerships and collaborative ways
of working.
Standardised fixed fees put at
risk provision and support that
is specialist and challenging,
encouraging Law Centres to ‘cherry
pick’ particular types of cases
(concentrating upon cases that can
be resolved relatively simply, rather
than providing holistic responses to
the clusters of problems that are
experienced by many vulnerable
clients).
Preventative work – including
education work, policy work and
advocacy – has been put at risk.
5. On the basis of your experiences, do you consider that there are other issues for
Law Centres, too, as a result of the introduction of the Unified Contract?
Yes
No
If so, what are these?
137
Access to justice for disadvantaged communities
6. Overall, has the introduction of the Unified Contract had an effect on your own
feelings about working in/volunteering in/serving on the management committee
of a Law Centre?
Yes
No
If so, in what way(s)?
Section 3: Further details
Please tick all which apply:
7. Are you:
Male
Female
8. How would you describe your ethnicity?
Black
Asian
Mixed Race
White British
White Other
Other
Prefer not to specify
9.Which age band are you in:
138
Under 30
31–40
41–50
51–60
Over 60
Appendix 1: Research methodology and questionnaire
As a follow up to this survey, we shall be interviewing a sample of law centre
workers, volunteers and management committee members, to explore their views
in more detail.
If you might be prepared to be contacted for a follow up interview, please would
you very kindly provide your name and contact details?
Law Centre:--------------------------------------------------------Name:--------------------------------------------------------------Contact details (email or phone): ----------------------------------
Findings
The questions about what were the current issues in Law Centres produced
high levels of agreement, as it turned out.The first question asked was about the
impact of standardised fixed fees. Seventy-four per cent strongly agreed with the
view that standardised fees underfunded the complex debt, housing, employment,
education, mental health and community care cases that Law Centres focused on,
with a further 16% in broad agreement with this view.
Table 1: Standardised fixed fees underfund the complex debt, housing,
employment, education, mental health and community care cases that Law
Centres focus on
strongly agree
Frequency
Per cent
79
73.8%
broadly agree
17
15.9%
broadly disagree
1
0.9%
strongly disagree
2
1.9%
don’t know
2
1.9%
Missing
6
5.6%
Total
107
100%
Almost two-thirds (65%) also strongly agreed with the view that the Unified
Contract system was placing increased administrative burdens on Law Centres,
with a further 21% in broad agreement.
There was strong (although slightly less strong) agreement that the scheme
potentially fostered competition between local providers, putting at risk longstanding partnerships and collaborative ways of working. Just under half (49%)
strongly agreed, with a further 32% in broad agreement.While there was evidence
139
Access to justice for disadvantaged communities
of anxiety on this score, others were less concerned about this as a potential threat.
The issue is examined further in Chapter Six, which explores the strategies for
collaboration and partnership working that were being taken forward as part of
survival plans for Law Centres for the future.
The pattern was relatively similar when it came to the issue of cherry-picking
(that is, prioritising cases that would fit most readily with the fixed fee funding
system), 47% strongly agreeing that this was a risk, and a further 35% being in
broad agreement. Here too, there were comments pointing to the ways in which
some Law Centres were taking action to avoid cherry-picking cases.
Finally, 66% of respondents strongly agreed with the view that preventative work,
including public legal education, policy and advocacy work was being put at risk,
with a further 22% in broad agreement.
Table 2: With the introduction of fixed fees preventative work – including
education work, policy work and advocacy – has been put at risk
strongly agree
Frequency
Per cent
71
66.4%
broadly agree
24
22.4%
broadly disagree
1
0.9%
strongly disagree
3
2.8%
don’t know
2
1.9%
Missing
6
5.6%
Total
107
100%
Respondents were then asked if there were any other issues for Law Centres as a
result of the introduction of the Unified Contract. In total just under two-thirds
(63%) thought that there were.
The following comments illustrate these.
“Payment at the end of a case and the fixed fees system has eroded reserves, putting
the survival of the Law Centre at threat, causing de-motivation within staff and in
fact staff losses and cuts in terms and conditions”, according to one respondent.
“Not drawing down enough funding to cover costs and salaries”, added another.
The ways in which the Unified Contract operated were cited here, as well as
the financial impacts of the fixed fees system. One respondent wrote as follows:
“Feel worn down by the bureaucracy of casework. Like being on a treadmill.”
“LSC issues very frustrating – reduces motivation”, added another. “Hitting
targets becomes a big driving factor even though I don’t like this aspect of my
job”, wrote a third. “The emphasis has to be on maximising income, by meeting
individual targets. This narrows what one can do. The workplace has become
more pressurised. There is much less opportunity to provide a holistic service.”
140
Appendix 1: Research methodology and questionnaire
“Pressures to close cases prematurely”, wrote another respondent. “Law Centres
waste time and money due to LSC administrative incompetence/bureaucracy”,
added another. “Ultimately clients will suffer as they will effectively be deprived
of access to justice, most clients are vulnerable and poor”, reflected yet another.
“Generally the measure of success has become driven by achievement of targets
rather than benefits to clients.This is demoralising and can be divisive to the staff
team”, was the verdict of a further respondent, summarising their views on the
impact of public service modernisation as exemplified by the Carter reforms. As
another respondent put this, “it emphasises targets and, as has been evidenced in
other services, it is possible to meet targets whilst providing a service that serves
no-one adequately”.
Broadly, these findings were consistent with many of the concerns that had been
identified in the literature review, focusing upon the changes that had accompanied
the introduction of the Carter reforms and the administrative systems involved in
LSC-supported provision since then.The responses were by no means unanimous,
however. For example, there were some differing views on the extent to which
collaborative work and partnership working were being put at risk. (The interviews
subsequently provided evidence that this risk had not actually materialised in
some cases: there were examples where increased partnership working had been
developed between Law Centres, other advice agencies and other service providers,
as Chapter Six discusses in more detail.)
There were also comments that indicated that Law Centres should not attribute
all their problems to the LSC. “I think it is mistaken to attribute all our ills to
the LSC”, a respondent commented, going on to refer to reductions in other
funding sources and concluding that it was “partly also Law Centres’ failure to
adapt our mission and message to modern conditions”.The interviews provided
fuller evidence on this topic too, including reflections on some of the dilemmas
inherent in managing the potential tensions between modernising and becoming
more business-like, on the one hand, and fears of the possible loss of mission, on
the other, as Chapter Eight explores in more detail.
Comparisons by gender
The responses of the 56 women who completed the survey differed very little, if
at all, from the men’s responses. There were only two tables where there seemed
to be some minor differences. One of these tables related to responses to the
question about whether or not the Carter reforms were leading to increasing
competition, rather than collaboration between providers. Here women were
rather less likely to think that this was the case; indicating, perhaps, that women
were more committed to the values of collaboration and more determined to
continue to collaborate with colleagues? This may or may not have been the case.
141
Access to justice for disadvantaged communities
Table 3:The scheme potentially fosters competition between local providers,
putting at risk longstanding partnerships and collaborative ways of working.
Absolute
Per cent
male
female
male
female
strongly agree
22
29
50%
53%
broadly agree
19
16
43%
29%
broadly disagree
0
6
0%
11%
strongly disagree
0
1
0%
2%
don’t know
3
3
7%
5%
Total
44
55
100%
100%
%
100
5%
2%
7%
90
11%
80
43%
70
Don’t know
29%
60
Strongly disagree
50
Broadly disagree
40
Broadly agree
30
53%
50%
Strongly agree
20
10
0
Female
Male
When it came to the issue of motivation, the differences seemed, if anything, to
be counter-intuitive.Women were slightly more likely than men to consider that
pay and conditions were important as motivating factors. Again, the reasons for
this can only be speculated about.
Table 4: How important to you were reasonable pay and conditions, when you
decided to work in/give your time to a Law Centre?
Absolute
Per cent
male
female
male
female
very important
11
15
26%
28%
fairly important
19
28
44%
52%
not very important
12
6
28%
11%
not important at all
1
5
2%
9%
Total
43
54
100%
100%
142
Appendix 1: Research methodology and questionnaire
%
100
90
80
7%
2%
9%
43%
28%
11%
70
60
50
52%
44%
Not important at all
Not very important
40
Fairly important
30
Very important
20
10
26%
28%
0
Male
Female
143
APPENDIx 2
Law Centres included
Avon and Bristol Law Centre
Barnet Law Centre
Birmingham Law Centre
Brent Community Law Centre
Bury Law Centre
Cambridge House
Camden Community Law Centre
Chesterfield Law Centre
Coventry Law Centre
Cross Street Law Centre
Croydon Law Centre
Cumbria Law Centre
Derby Citizens Advice and Law Centre
Gloucester Law Centre
Greenwich Law Centre
Hackney Community Law Centre
Hammersmith and Fulham Law Centre
Harehills Law Centre
Hillingdon Law Centre
Islington Law Centre
Kent Law Clinic
Wiltshire Law Centre
Wythenshawe Law Centre
Lambeth Law Centre
Leeds Law Centre
Luton Law Centre
Newcastle Law Centre
North Kensington Law Centre
Nottingham Law Centre
Oldham Law Centre
Paddington Law Centre
Plumstead Law Centre
Rochdale Law Centre
Saltley and Nechells Law Centre
Sheffield Law Centre
South Manchester Law Centre
South West London Law Centre
Southwark Law Centre
Streetwise Community Law Centre
Surrey Law Centre
Tower Hamlets Law Centre
Vauxhall Law Centre
Wandsworth and Merton Law Centre
145
APPENDIx 3
Topic guides for semi-structured
interviews
Law Centres
(1st round interviews)
1. Explore the participant’s motivation for becoming involved with Law Centres
(whether as a paid worker, volunteer or management committee member).
2. Invite participant to summarise the history of their involvement (e.g. having
started to become involved as a volunteer/or client).
3. Has the motivation for their involvement changed over time? If so, in what
ways and why?
4. Does the Law Centre(s) have a particular ethos? If so, how would they describe
this? How important is this for them?
5. How (if at all) might this relate to wider debates about the future of the public
service ethos more generally?
6. Invite the participant to comment more specifically on their views on the
impact of recent policy changes. How have these changes affected them, both
in practical ways and in terms of their motivation and commitment?
7. How have these changes been managed/coped with? And how has the
participant been managing these changes and their feelings about them?
8. Are there tensions/professional dilemmas involved here? If so, how does the
participant cope with these/with what coping strategies and resources to draw
upon (both internal resources and external resources, including sharing tensions
with colleagues/former colleagues/friends)?
9. More generally, how does the participant see the future of Law Centres, taking
account of differing/contradictory policy objectives e.g. for enabling the most
disadvantaged to become active consumers of public services whilst also saving
money on legal services – and for promoting ‘new and more accountable forms
of professionalism’ rather than de-professionalisation?
10. How does the participant see their own future in Law Centres – or elsewhere?
147
Access to justice for disadvantaged communities
Other stakeholders (such as local authorities)
(2nd round interviews)
1. How have you/your organisation come to be supporting/resourcing/working
in collaboration with/in partnership with the Law Centre (initial motivation/
and continuing motivation)?
2. How would you describe your organisation’s particular relationship with the
Law Centre? Has this changed over time? If so in what ways and why? Have
there been differences of perspective (e.g. between councillors and officers)?
3. How would you describe the Law Centre’s particular ethos – and its
particular contributions to local communities – and to access to justice more
widely? (commenting on Law Centres’ own views on their specific roles and
contribution including):
• reaching particularly disadvantaged groups/communities regardless of ability
to pay for access to justice
• providing holistic services to individuals/communities/addressing related
issues such as housing/benefits/immigration holistically
• undertaking preventative work through public legal education/training
• negotiating e.g. working with public authorities to address individual/
collective concerns in preventative ways
• undertaking policy work
• providing specialist advice/support/training to other agencies e.g. CABs
and other advice services as part of holistic approach to provision within
localities
• taking up test cases in welfare and related areas of law
Anything else?
1. How would you describe/summarise the current and forthcoming challenges
to Law Centres including potential changes to the availability of legal aid?
2. What in your view might be relevant ways forward/which types of approaches
might be appropriate to meet these challenges, building upon Law Centres’
particular areas of expertise – and without losing Law Centres’ particular ethos?
3. More specifically how far do you think that volunteering could provide
solutions/what if any might be the limitations to volunteering in this context?
4. Any other comments/reflections?
148
Appendix 3:Topic guides for semi-structured interviews
Volunteers
(2nd round interviews)
1. How have you come to be volunteering/still volunteering (initial motivation/
and continuing motivation)?
2. How would you describe your particular contribution to the Law Centre?
3. How would you describe the Law Centre’s particular ethos – and its
particular contributions to local communities – and to access to justice more
widely? (commenting on Law Centres’ own views on their specific roles and
contribution including):
• reaching particularly disadvantaged groups/communities regardless of ability
to pay for access to justice
• providing holistic services to individuals/communities/addressing related
issues such as housing/benefits/immigration holistically
• undertaking preventative work through public legal education/training
• negotiating e.g. with public authorities to address individual/collective
concerns in preventative ways
• undertaking policy work
• providing specialist advice/support/training to other agencies e.g. CABs as
part of holistic approach to provision within localities
• taking up test cases in welfare and related areas of law
Anything else?
1. How would you describe/summarise the current and forthcoming challenges
to Law Centres?
2. What in your view might be relevant ways forward/which types of approaches
might be appropriate to meet these challenges without losing Law Centres’
particular ethos and contributions?
3. More specifically how far do you think that volunteering could provide
solutions/what if any might be the limitations to volunteering in this context?
4. Any other comments/reflections?
149
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Index
Index
Please note: LCs refers to Law Centres
A
Abel, R. 29-30
Abel-Smith, B. and Titmuss, R. 13
Abel-Smith, B. and Townsend, P. 10
Abel-Smith, B. et al. 23, 42
access to justice
as central tenet of LC work 118-20, 127-9
and public policy 22-6
see also social justice
administrative challenges of reforms 53-4,
97-9
LCs perspectives 55-7, 97-9, 139-40
Legal Services Commission perspectives
54-5
Advice Centres for Avon 84, 87
Advice Network 125
Advice Nottingham 84, 87, 125
Advice Services Alliance (ASA) 31-2
Advice Services Coventry 84, 87, 125
alienation experiences 103, 110-13
see also motivation factors
alliance-building see collaboration and
partnership working
altruism 35-6, 104-6
ASA (Advice Services Alliance) 31-2
asylum cases 3, 25, 44, 107, 126, 128
atmosphere and ambience 42-3
Austerity Justice (Hynes 2012) 127
autonomy constraints 39, 51, 88, 94-6, 99
B
Balloch, S. and Taylor, M. 75
Banks, S. 4, 29, 37, 39-41, 117
Banks, S. and Gallagher, A. 40
Barnes, M. and Prior, D. 18, 61
Bauman, Z. 3
benefit ‘scroungers’ 20
Benington, J. and Moore, M. 29
Beresford, P. and Turner, G. 14
‘best value’ strategies vii 101
Beveridge Report (1942) 9-10
Big lottery funding 84, 125
Bindman, G. 22-3
Blackledge, P. 21-2
Blair, Tony, on market mechanisms 2
Bocker, H.J. and Overgaard, H.O. 102
Bonoli, G. 14
Boyle, D. 102
Brennan, M. 94
Bristol City Council 87
Bryson,V. and Deery, R. 28
Bryson,V. and Fisher, P. 21
Buckingham, H. 76, 88
Burchardt, T. and Craig, G. 1, 21
Burdett, J. 28, 115, 123
bureaucracy
and paternalism 1-2, 14-15
and the public service ethos 36
of target cultures 7, 52, 140-1
vs. flexibility 94
burn-out 103
see also stress responses
C
Cabinet Office 59, 125
Cairns, B. et al. 88
Callinicos, A. 22
campaigning roles 44-5
capabilities approaches 20
Carter Report (2006) vii, 26-7
criticisms 28-31
key reforms 27-8, 62
implications for professionals 28-31,
62-73
marketisation and competition 77-9, 7991, 127, 129
to funding 5, 27, 29, 52-6, 96-100, 13940
to performance monitoring 38-41, 61-2,
96-9, 100-1, 140-1
case selection 96-7
centralisation tendencies 39-40
cherry-picking cases 97
Chicago School of Economics 10-11
choice discourses
and disadvantage 20
and marketisation 15-16
Citizens Advice Bureau (CAB) vii, 86-7
159
Access to justice for disadvantaged communities
bidding for contracts 77, 79
collaboration vs. competition 6, 79, 81-2,
86-7, 90, 122-3
funding 122-3
legal advice training 57
review of homelessness 48
time pressures 102
citizenship 10
CLACs see Community Legal Advice
Centres (CLACs)
CLANs see Community Legal Advice
Networks (CLANs)
Clarke, J. 117
Clarke, J. and Newman, J. 39
Clarke, J. et al. 61
client charging 71-3
see also fixed fee system
closures 122-3, 131
Coalition policies, legislative changes 32-3
Cohn, E.J. 9
collaboration and partnership working 1718, 75-91, 124-5
context and climate 75-7
impact of modernisation and competition
77-9
key pressures and conflicts 79-80
local need responses 80-1
drivers for collaboration 81-3
examples of best practice 81-3, 124-5
private sector collaborations 88-91
role of local authorities 83-7
success stories 81-3, 124-5
collective working 63-5
Collins, R. 37
Commission on Social Justice 21
commissioning agents 27-8
commissioning and tendering activities vii,
5, 27-8, 31-2, 54-5, 62-4, 77-8, 82-91
LC study findings 139-41
role of local authorities 83-7
see also Unified Contract
commodification vii, 15-16
Community Legal Advice Centres (CLACs)
vii, 31-2
Community Legal Advice Networks
(CLANs) vii, 31-2
competition implications 15-16, 75-9
criticisms 127, 129
research findings 141-2
see also commissioning and tendering
activities
contracts see Unified Contract
Cookson, G. 32-3
Cooper, A. 28
160
Council on Social Action 98-9
Coventry City Council 87
Craig, G. et al. 3
Crouch, C. 28
Crowley, M. et al. 95-6, 101
D
de-professionalisation vii, 4, 40-1, 99, 117
Deakin, N. 14
decentralisation approaches 39-40
decommodification vii, 12
demoralisation factors 114-16
see also stress responses
disability benefits cases 43, 126
Donaldson, L. 94
Doonan, K. 2
Dorling, D. 1
Downs, A. 40
Doyle, L. and Gough, I. 21
Drakeford, M. 61
du Gay, P. 94
Dworkin, R. 19-20
E
education and training 57-8, 124
see also public legal education
efficiency measures 97-9
and value 100-1
emergency services 44-5
Entwhistle, T. and Martin, S. 90
Esping Andersen, G. 4, 12-14
Esping Andersen, G. et al. 13, 15, 128-9
ethics and the professions 37-8
see also public service ethos
evaluation of LC outputs and performance
93-102
impact of New Public Management
approaches 93-6
time pressures and work intensification
96-7
output vs. outcome performance
measurement 97-8
understanding ‘value’ measures 100-1
Evans, T. 39
F
Felts, A. and Jos, P. 94
Finch, J. and Groves, D. 106
Finlayson, A. 15, 17
fixed fee system vii, 1, 5, 27, 29, 52-6, 96100, 139-41
and client charging 71-3
Index
and exceptional cases 96
research survey findings 139-41
Flynn, N. 17, 82
Fraser, N. 20
Friedman, Milton 10, 10-11
funding of LCs 25-6
difficulties and constraints 53-4
extent of cuts 126
promoting socio-economic value 101
reform proposals
fixed fee systems 5, 27, 29, 52-6, 96-100,
139-41
introducing client charging 71-3
partnership working and joint bidding
83-91
G
gender issues
equality trends 20
and motivation 106-7
research survey findings 141-3
The gift relationship; From human blood to
social policy (Titmuss 1970) 11
Glendinning, C. et al. 75
Grant, H. 127
H
Hale, Baroness 9
Hansen, O. 31
Harris, M. 88
Hochschild, A. 103
Hoggett, P. et al. 18, 29, 38-40, 58, 103-4,
115, 124
holistic approaches 43-4
value of 120-2
Honig, B. 38, 124
Hood, C. 93
House of Commons 36
Hugman, R. 39
Hynes, S. 33, 123, 126-7
Hynes, S. and Robins, J. 32
I
information needs of consumers 15
Institute for Voluntary Action Research 88
internal markets 16-17
internet-based legal advice 70
J
James, D. and Killick, E. 52
John, P. and Johnson, M. 36-7, 116
Johnson, J. 2-3, 23-4
Justice for all (Society of Labour Lawyers
1968) 25
justice and society see social justice
K
Kail, A. and Abercormbie, R. 80
Kantian approaches 38-9
Kennedy, H. 27, 30, 106, 127
Kilwein, J. 2-3, 24
Kolthoff, E. et al. 117
L
language challenges 43, 99
LASPO (Legal Aid, Sentencing and
Punishment of Offenders Bill) vii, 32-3,
127
Law Centres (LCs)
aims and remits 25-6, 28, 41-3
background history 22-4
establishment 25-6
funding 25-6, 101
difficulties and constraints 53-4, 71-3
holistic approaches 43-4
key challenges 52-4
management and organisation 65-6, 71
mission and ethos 41-3
campaigning roles 44-5
post-Carter reforms 27-8
competition vs. cooperation 77-9, 79-91
general implications for LCs 62-73
impact on professionals 28-31, 58-60,
96-7, 103-16
performance monitoring 38-41, 61-2,
96-9, 100-1, 140-1
positive perceptions and benefits 47-8
two-tier systems 99
work intensification 96-7
preventative and collective approaches 445, 48-9, 100-1, 126
recent research findings 51-2, 139-43
staff pay and conditions 66-7, 142-3
staffing structures 65-6
stakeholder perspectives 45-7
telephone and internet-based advice 70
threat of closure 122-3
trustees 71
use of volunteers 67-70
value of work 100-1, 118-23
working atmosphere 42-3
Law Centres Evaluation Framework Team
100
Law Centres Federation (LCF) vii, 131
Reports 124-5
research into value of LCs 101
161
Access to justice for disadvantaged communities
see also Law Centres Network
Law Centres Network 3, 124-5
Law Society vii, 29
attitudes to LCs 25
LCF see Law Centres Federation (LCF)
Le Grand, J. 4, 15, 36-7, 103
Le Grand, J. and Bartlett, W. 15
Lee, P. and Raban, C. 14
Legal Action Group 126
Legal Aid Scheme
background and history 22-4
criticisms of 26-7
definitions vii
extent of cuts 126
means-tested contributions 32
post-Carter Report reforms 27-8
scope and remit changes post-2010 32-3
Legal Aid, Sentencing and Punishment of
Offenders Bill (LASPO) vii, 32-3, 127
legal executives 99
legal professionals
accountability and trust issues 28-9
de-professionalisation trends 4, 40-1, 99,
117
next generation workers 115-16, 123-5
public perceptions of 28-30
responses to Carter reforms 29-31, 40,
96-7
research survey findings 139-43
stress factors 58-60, 96-7, 101-2, 103-16
training and professional development
57-8, 124
Legal Services Commission (LSC)
funding schemes 27-9, 31-2, 45, 49, 53
criticisms of 62-4
perspectives on administration challenges
54-5
legal training 57-8
Lipsky, M. 38, 124
Lister, R. 14
local authorities, role in promoting
collaboration 83-7
Lord Carter of Coles 26-7
lottery funding 84, 125
LSC (Legal Services Commission) 31
M
Makepeace, A. 65
Making legal rights a reality (LSC 2005) 31
management committees vii, 71
managerialism see New Managerialism
Manson, J. 18
marketisation
162
key elements 15-16
criticisms 127, 129
Marris, P. and Rein, M. 23
Marshall, T.H. 9-10, 18, 19, 23, 127-8
Marxist approaches 21-2
migrant case work 3, 25, 44, 107, 126, 128
The Migrants Law Project 128
Milbourne, L. 77-8, 88
Milbourne, L. and Cushman, M. 82, 100-1
Milburn, Alan 17, 75
Ministry of Justice 32-3
modernisation agendas vii, 17-18
see also public service modernisation
Moorhead, R. and Pleasance, P. 126
morality, and justice 21-2
Morris, L. 127
motivation factors 35-7, 41-3, 101-2, 10316
and gender 106-7
identity and values 104-6, 108-9
impact of Carter reforms 110-16
LC work as ‘inspiration’ 109-10
in LCs vs. wider environment 107-8
research findings 142-3
Murray, U. 18
N
‘nanny state’ 14-15
NEF Consulting 101
Neighbourhood Renewal Funding 84
neo-Taylorism 94-6, 101-2
neoliberalism 10-14
critiques 14
emergence of 10-12
New Managerialism 17
and ethics 39-41
key features 17
time pressures and outcome performance
96-102
New Public Management vii, 7, 16-17, 27,
93-6
key debates 93-6
time pressures and outcome
performance 96-102
New Right vii, 14-15, 17
Newman, J. 17, 93
Newman, J. and Clarke, J. 16-17, 61, 75, 93
Newman, J. et al. 94
Newman, S. and Lawler, J. 93
non-compliance strategies 40
Not-for-profit advice services in England
(Cabinet Office 2011) 125-6
Nussbaum, M. 20, 129
Index
O
R
out-of-hours services 44-5
outcome performance, impact of
modernisation agendas 96-102
outreach sessions 56
rationing 38-9
Rawls, J. 19
recommodification viii, 5, 61-73
Regan, F. et al. 28
relationships see professional—client
relationships
research on impact on LCs of
modernisation changes
background and methodology 131-4
format and questionnaire 135-9
key findings 139-43
by gender 141-3
Law Centres surveyed 145
Ross, J.E. and Ross, W.C. 102
P
Page, R. 15, 38, 61
paralegal staff 65, 99
partnership working see collaboration and
partnership working
paternalism 1-2, 14
Paterson, A. and Sherr, A. 28-9
performance targets 7, 17, 38-40, 61-2,
100-1
attitudes towards 40-1, 96-7, 113, 140-1
output vs. outcomes 97-9
and the Unified Contract 140-1
Perry, J. and Hondeghem, A. 35
Perry, J. and Wise, L. 35
Phillips, A. 3
Piachaud, D. 19
Pollitt, C. 95
Powell, M. 15, 17
Power, M. 93
preventative approaches 44-5, 48-9
value of 100-1, 122-3, 126
private sector collaborations 88-91
private sector ‘mentality’ 113
pro bono work viii, 22, 46-9, 59, 67, 69-70,
88, 109, 112-13, 124, 127
professional autonomy 39, 51, 88, 94-6, 99
professional development 57-8, 124
professional—client relationships 17
see also time pressures and outcome
performance
professionals see legal professionals
public legal education viii, 3, 25, 28, 44, 49,
52, 57
public service ethos
contested approaches 35-7
evidence for 114-16
see also motivation factors
The public service ethos (House of Commons
2002) 36
public service modernisation
and marketisation 15-16
policies in practice 16-18, 93-102
S
Sandel, M. 4, 12, 21, 129
Sanderson, P. and Sommerlad, H. 22-3, 279, 94, 99
Schofield, T. 93
Scotland, approaches access to justice 127
Scott-Moncrieff, L. 65
Seldon, A. 2
self identity, and motivations 104-6
Sen, A. 12, 20
Smith, P. 103
Smith, R. 25, 28
social justice 1-4, 127-9
barriers 3, 10-11
concepts and definitions 19-22
dimensions of (Fraser) 20-1
and economic goals 21
emergence of the welfare state 9-10
expansion of citizenship 10
impact of neo-liberalism and privatisation
agendas 10-12
public promotion policies 22-6
see also access to justice
The socio-economic value of law centres
(NEF Consulting 2008) 101
Sommerlad, H. 39-40, 51-2, 94, 128
South Gloucestershire local authority 87
staff motivation see motivation factors
staff pay and conditions 66-7, 142-3
staff stress see stress responses
staff turnover and loss 41, 111-13
staffing costs 66-7
staffing structures 65-6, 99
Standing, G. 38, 61, 65, 103
Steele, J. 104
Stephenson, M.-A. and Harrison, J. 107
Stoney, C. 95
163
Access to justice for disadvantaged communities
stress responses 58-60
coping strategies 113-14
and demoralisation 114-16
and work intensification 96-7
students and young professionals 115-16,
123-5
Stuffins, C. 83
Subversive citizens (Barnes and Prior 2009)
18
T
Tawney, R.H. 21
Taylor, F.W. 94-5
Taylorist managerial practices 94-6
telephone legal advice 70
Thatcher, Margaret, on privatisation 1-2
A Theory of Justice (Rawls 1971) 19, 19-20
Thompson, E.P. 6, 102
time pressures and outcome performance
96-102
Time well spent (Council on Social Action
2009) 98-9
Titmuss, R. 9-13, 36, 104, 129
Townsend, P. 10
training and education 57-8, 124
see also public legal education
trust matters
and the legal profession 28-30
post-reforms 94-5
and public servants 36-7
trustee boards viii, 71
24-hour helplines 44-5
U
Ungerson, C. 106
Unified Contract viii, 27, 140-1
research questions 136-9
US Legal Services Program 24-5
utilitarian principles 39
V
value measurement 100-1
values in public service see ethics and the
professions; public service ethos
virtue ethics 40
volunteer workers in LCs 67-70
W
War on Poverty (US) 2-3, 23-4, 28
Wedderburn, D. 14
welfare state
164
emergence of 9-10
and individual choice 19-20
key criticisms of 13-14
Whitfield, D. 15-16, 61
Wilding, P. 37
Williams, F. 10, 14, 38
Williams, I. 76, 81, 83, 90
Wolff, J. 20
work intensification 96-7
output vs. outcomes 97-9
value measurement 100-1
working atmosphere and ambience 42-3
Y
young legal professionals 115-16, 123-5
Young, I.M. 3, 20
Z
Zemans, F. and Thomas, A. 25
“The question of access to justice was a fundamental keystone in the creation of the
welfare state. This exhaustive review of the history of legal aid and advice, and of the
Coalition government's determination to destroy it, reminds us of how much other
struggles to defend welfare depend on it. It is a must-read and not just for those
concerned narrowly with the law.”
Gary Craig, Professor of Social Justice, Durham University
“An important read for all of those concerned about the role of the state in creating a
more equal and just society for all.”
John Gaventa, Director, Coady International Institute, StFX University, Canada
Access to justice for all, regardless of the ability to pay, has been a
core democratic value. But this basic human right has come under
threat through wider processes of restructuring, with an increasingly
market-led approach to the provision of welfare. Professionals and
volunteers in Law Centres in Britain are struggling to provide legal
advice and access to welfare rights to disadvantaged communities.
Drawing upon original research, this unique study explores how
strategies to safeguard these vital services might be developed in
ways that strengthen rather than undermine the basic ethics and
principles of public service provision. The book explores how such
strategies might strengthen the position of those who provide,
as well as those who need, public services, and ways to empower
communities to work more effectively with professionals and
progressive organisations in the pursuit of rights and social justice
agendas more widely.
Avon and Bristol Law Centre
Marjorie Mayo is Emeritus Professor of
Community Development, Goldsmiths,
University of London. Her research has
included learning for active citizenship,
and access to justice in disadvantaged
communities.
Matthew Scott is a lecturer in Community
Development and Social Policy at London
Metropolitan University and Goldsmiths,
University of London. His experience includes
being a director of the Community Sector
Coalition.
Gerald Koessl has recently completed his PhD
in Sociology at Goldsmiths, University of London,
where he has also worked as a researcher.
Imogen Slater is a consultant and researcher
at the Centre for Urban and Community
Research, Goldsmiths, University of London.
SOCIAL ISSUES / SOCIAL STUDIES
ISBN 978-1-44731-102-7
www.policypress.co.uk
@policypress
/policypress
9 781447 311027