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You are here: BAILII >> Databases >> United Kingdom Judiciary Speeches >> Lord Bingham of Cornhill, Lord Chief Justice of England & Wales : The Barnett Lecture [1998] UKSpeech ANCW6 (11 June 1998) URL: http://www.bailii.org/uk/other/speeches/1998/ANCW6.html Cite as: [1998] UKSpeech ANCW6

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By the RT Hon Lord Bingham of Cornhill
Lord Chief Justice of England

The Barnett Lecture

at Toynbee Hall

Thursday 11 June, 1998

On its centenary in 1984, Toynbee Hall was justly acclaimed as the pioneering and imaginative venture it was, a product of that serious, high-minded intelligent and practical concern for others which distinguished so many of the later Victorians. The centenary of the Poor Man's Lawyer at Toynbee Hall - or the Legal Advice Centre as it is now called - is inevitably a lesser event, for it is only one of the services which Toynbee Hall has rendered to the community since its foundation. But like the foundation of Toynbee Hall itself, this service responded to a pressing and unmet social need; it has proved enormously influential; it has been of value to countless people; and it seems likely that in the years ahead, in conditions vastly different from the 1890's, it will continue to be of value. So it must, I think, be appropriate to celebrate this centenary also, and in doing so both to remind ourselves of the past and to ponder the possible shape of the future.

The Poor Man's Lawyer established here 100 years ago was not, it seems, the first of its kind in this country. That accolade belongs to the Mansfield House Settlement in Canning Town, set up in 1890 (Endnote 1). And even that was anticipated by a number of public-spirited Germans in New York City who in 1887 established the German Law Protection Society, later called The Legal Aid Society of New York (Endnote 2). It was not long, however, before the initiative at Mansfield House was repeated here, at Cambridge House in Camberwell and in Manchester (Endnote 3). The rationale underlying these schemes was simple and very compelling. As a later author was to put it,

For the public whom the Poor Man's Lawyer here at Toynbee Hall sought to serve, there was in effect no law; the rules of law which they would have liked to invoke were indeed for them as good as non-existent - except, of course, when those laws were invoked against them.

One is tempted to observe, with apologies to Laurence Sterne, that they order these matters better in Scotland. The oldest statutory authority on legal aid for the poor, anywhere in the world, appears to be a Scottish Act of 1424 (Endnote 5) which provided that

free legal assistance should be given to him. Under this Act the "poor creature" would seek admission to the Poor's Roll, which would require him to show both that he was qualified on grounds of poverty and that he had a probabilis causa litigandi, in other words a reasonable cause of action (Endnote 6). If an applicant showed himself to be qualified on both grounds, then either in the Court of Session or the Sheriff courts counsel and agents would be appointed to act for him free of charge, and no court fees would be payable. If he succeeded, however, and was found to be entitled to expenses, the professional charges of counsel and solicitors and court dues were included in his expenses and on recovery were to be paid to those entitled. The strength of this system, from the client's point of view, was that it gave him advice and assistance well before a trial began. The weakness was that it only applied in litigious matters, civil or criminal, and was unavailable where no court proceedings were in prospect. This omission was made good, just after the founding of the Poor Man's Lawyer here at Toynbee Hall, by the establishment of the Edinburgh Legal Dispensary, which offered a somewhat similar service: four consulting rooms were open every Tuesday evening throughout the year, and lawyers served for a month at a time, giving their services voluntarily (Endnote 7). By the mid-1930's the number of petitions to be admitted to the Poor's Roll in the Court of Session and in the Sheriff courts was running at an annual total of just over 200 and just over 2,000 respectively, with the great majority of petitions being accepted (Endnote 8). By the same date, the number of those consulting the Edinburgh Legal Dispensary was approaching an annual total of 2,000 (Endnote 9). From 1929 onwards, facilities for free legal advice were also provided under the auspices of the City of Glasgow Society of Social Service (Endnote 10).

An English statute of 1494 purported on its face to give much the same help to indigent litigants as the earlier Scottish Act (Endnote 11). It provided:

This provision only applied to plaintiffs, (although it was extended to cover defendants also in the Chancery Courts), it only applied to civil proceedings and it did not cover advice or help otherwise than for purposes of litigation. But it was on its face a generous measure. It was, however, deprived of practical effect by the introduction of procedural requirements designed to restrict the flow of cases reaching the court under it. Thus a requirement was introduced to obtain a certificate from counsel on the merits of the case, and a solicitor had to be found who was willing to prepare an affidavit and a case to counsel and thereby run the risk of being chosen by the court to conduct the case free of charge. These requirements were no doubt effective to prevent undeserving cases reaching the court; by the end of the last century they were preventing deserving cases also (Endnote 13).

If the position of the poor man needing advice or assistance in the civil field was dire, the position of the criminal defendant was even worse. In the 18th century, the criminal trial was a very amateur affair (Endnote 14). Most prosecutions were brought by private individuals in the hope of reward. There were no professional prosecutors. The majority of trials were conducted without lawyers. The defendant had no right to give evidence. And one suspects that many of the judges were extremely arbitrary. The 19th century saw a movement towards much greater professionalisation. In many cases prosecutors were represented by counsel. And in 1836, after failures in 1821, 1824, 1826 and 1834, a measure was enacted granting defence counsel the right to address the jury on behalf of the accused (Endnote 15). This led to a rapid expansion of the Bar, with young barristers conducting defences for a fairly standard fee of 1 guinea per case. But this was a far from nominal sum, well beyond the means of many of those in the dock. In the most serious cases, such as murder, it was the practice for judges to ask barristers to represent defendants without any fee, but this request was rarely if ever made until the trial was on the point of beginning. As the century progressed, the dock brief came into vogue, enabling prisoners to be defended by any barrister robed and in court when the selection was made; but the fee of £1.3s.6d. was again far from nominal and only a minority of prisoners was able to raise such a large amount. The great majority of criminal defendants in trials a century ago were unrepresented. The problem was graphically described by Sir James Stephen in his History of the Criminal Law published in 1883:

In 1898 criminal defendants at long last won the right to testify on their own behalf; but this meant that those who chose to exercise that right were exposed to cross-examination by skilful prosecuting counsel, while lacking any advocate to advise them or protect their interests.

Recognising that the plight of unrepresented poor defendants was scandalous, a group of leading lawyers promoted a Bill in 1903 for their assistance. The Home Office, thinking it difficult to oppose the Bill "in principle" (Endnote 17), was reassured that it stood no chance of becoming law (Endnote 18). But it did: henceforward magistrates could grant legal aid to prisoners on committal for trial, but only if the prisoner disclosed his defence and showed that he had a proper case to advance. Lawyers would be paid out of local funds. The Poor Prisoners' Defence Act 1903, as the Bill became, proved highly unsuccessful in practice. Most defendants were unaware of it. So were many magistrates, and those who did know of it were reluctant to make orders which would increase the burden on local ratepayers (Endnote 19). The Society of Clerks of the Peace regarded the scheme as a means by which villains could escape their just deserts at the public expense (Endnote 20). Judges were inclined to think that the rights of prisoners were safe in their hands (Endnote 21). The number of cases in which aid was granted was, it seems, extremely low.

So unsuccessful was the Act, and so obvious the need for improvement, that pressure for reform built up. Sir Claude Schuster, the long-serving and highly influential Permanent Secretary to the Lord Chancellor, recorded that he looked upon the move for reform with horror (Endnote 22) . But something had to be done, and the first response was to appoint a committee to investigate, under the chairmanship of Mr Justice Finlay and with what must have seemed a very safe membership (Endnote 23) . The Committee did indeed conclude that the present system in criminal cases worked satisfactorily and that no alterations were urgently or imperatively required (Endnote 24) . Most prisoners in its view were manifestly so guilty as to leave no room for doubt (Endnote 25). But the Committee did recognise some small deficiencies. It did not think that defendants should be precluded from assistance because they failed to disclose their defence, as other defendants would not be obliged to do. Instead, magistrates should have discretion to grant legal aid for jury trial when it was in the interests of justice to do so. In grave charges, such as murder, it was recommended that help should be available at committal. In a few summary trials magistrates should also be able to grant legal aid if it was necessary in the interests of justice by reason of the exceptional circumstances of the case (Endnote 26). These proposals were generally well received, save by the Home Office which felt that "the public should not spend money in helping a guilty man to establish a false defence" (Endnote 27). A Private Member's Bill introduced into the House of Commons in 1928, and reintroduced the following year, earned reluctant Home Office support, provided that the Home Office could re-write its provisions. The Home Office regarded it as "absurd" that steps should be taken to inform defendants of their rights (Endnote 28). Thus, with much official hesitation and reluctance, the Poor Prisoners' Defence Act 1930 became law (Endnote 29). It removed the requirement that prisoners should disclose their defence on committal, and made legal aid automatic in murder trials. In other cases magistrates were given wide discretion to grant legal aid where the defendants' means were insufficient and it appeared to them to be desirable in the interests of justice. Some help was given in summary trials in exceptional circumstances. And for grave charges or again in exceptional circumstances legal aid could be provided before committal (Endnote 30).

Meanwhile a belated attempt was made to improve the lot of poor litigants in the High Court. A scheme was launched in 1925, administered by the Law Society and provincial Law Societies, under which solicitors and barristers gave their services for nothing and free legal aid was in that way afforded to poor persons. The scheme only operated in the High Court, and the vast majority of the cases handled were matrimonial. Having in its first report dealt with legal assistance for poor criminal defendants, Mr Justice Finlay and his Committee moved on to consider legal advice and aid in civil cases. In its final report published in 1928 the Committee lavished praise on the work done by Poor Man's Lawyers, which it described in some detail, and felt that the need of the poor to be advised could be best met by the expansion of such centres (Endnote 31). It did not favour giving free legal assistance to poor litigants in the county court, fearing that this would lead to undesirable litigiousness (Endnote 32). Nor did it, for a variety of unpersuasive reasons, favour extending the Poor Persons Rules of the High Court to the county court, save where a High Court action assisted in that way was remitted to the county court. In a passage which I think deserves quotation the Committee reported:

It does not seem to have occurred to the Committee that it might be in the interests of a State, and even its duty, to ensure that even its poorest citizens were able to enjoy the protection of the laws by which they were governed. To fill the gap, the Bentham committee, a charitable organisation, was established in 1929 to conduct cases in the county courts and magistrates' courts in London. The result was not an upsurge of litigiousness (Endnote 34).

This, impressionistically described, is the environment in which the Poor Man's Lawyer at Toynbee Hall operated for most of its first half-century of life. A paper read to the Law Society in 1935 described what was, I suspect, a fairly typical picture, although the centre described was not identified (Endnote 35). The centre would be open on one evening a week for 2 or 3 hours, during which members of the public would attend and receive free legal advice from members of the Bar and solicitors. The lawyers would have little in the way of a library beyond, perhaps, a book on the Rent Restriction Acts, a book on the Workmen's Compensation Acts, Stone's Justices' Manual and the County Court Practice (Endnote 36). The paper continued:

Another author recalls:

The service offered at Toynbee Hall was very highly regarded in the area. As the centenary history records, when a workman in the Shoreditch County Court pleaded that he had transgressed in ignorance of the law the judge replied: "Have you never heard of Toynbee Hall? The lawyers there would give you the soundest advice obtainable, and it will cost you nothing." (Endnote 39) When one reads in the same volume that among the advisers attending here were those who later became Lord Roskill, Lord Birkett, Mr Justice Talbot, Lord Justice Browne and Sir Frank Milton, the Chief Metropolitan Stipendiary Magistrate, among other very distinguished lawyers, the quality of the advice given speaks for itself (Endnote 40). Whatever reservations one may have about the main thrust of the Finlay Committee's report on civil legal aid, there can be no doubting the justice of the tribute which it paid to the work of Poor Man's Lawyers. By 1928 there were 27 such centres operating in London, several of them at more than one address; and there were in addition another 27 such centres run by the three political parties (Endnote 41). Similar schemes were to be found in 10 major provincial towns, some but by no means all of these offering representation as well as advice (Endnote 42). The business handled by these centres was very considerable. An article published in 1940 recorded that the Poor Man's Lawyers' Association in Birmingham had dealt in 1938 with over 4,000 cases, and Manchester had dealt with almost as many (Endnote 43). At Cambridge House in Camberwell about 3,000 persons were advised annually (Endnote 44). It, like Toynbee Hall, carried its cases right through to trial, as compared with other London centres which referred those needing action to the Bentham committee. Increasingly, however, it was coming to be recognised that this ad hoc response, for all its virtues, could not meet the changing expectations of the public. Partly perhaps this was due to the war, during which each of the three Services set up a department to give free advice to serving personnel (Endnote 45). The Law Society itself set up a department with a staff of 60 to conduct divorce cases (Endnote 46). When consideration was given to the new and fairer Britain which was to follow the war, the provision of legal assistance to the poor featured in the discussion. And it seems very likely, although unprovable, that impetus was given to the movement for reform by the work of foreign scholars, refugees from fascist oppression, who were able to compare arrangements in this country with those in the countries of continental Europe (Endnote 47). The comparison was very much to our disadvantage. One of these scholars, Dr E J Cohn, wrote with a clarity and directness which remain compelling:

His view was very clear:

In May 1944 Viscount Simon, the Lord Chancellor, wrote to Herbert Morrison, the Home Secretary, informing him that he was setting up a committee under the chairmanship of Lord Rushcliffe to consider the reform of legal aid within the civil courts. In direct contradiction of the views of the Finlay Committee he commented that

In May 1945 - a month memorable in other ways also - the Rushcliffe Committee reported. It recommended that there should be a salaried advice scheme to provide initial help with both civil and criminal matters, a recommendation not implemented up to now. On the civil side, it recommended a comprehensive scheme in which the State would pay private lawyers to represent poor and middle income litigants before a wide range of courts and tribunals, subject only to their showing a reasonable case to argue (Endnote 51). This report was hailed by Dr Cohn as

It was essentially this scheme, as recommended by Rushcliffe, which was in due course enacted as the Legal Aid and Advice Act 1949. On the criminal side Rushcliffe's recommendations were less far reaching, partly because there was less need for reform. Certain changes were, however, recommended, among them, almost as an aside, a recommendation that the costs of criminal legal aid should be borne by taxpayers rather than ratepayers (Endnote 53). This recommendation was eventually implemented in 1960, and had a dramatic effect on the generosity of those responsible for granting legal aid to criminal defendants (Endnote 54).

The last half century has seen a number of very important developments in this field. I shall make brief reference to some of the more important. First, it has seen a proliferation of tribunals, bodies set up to adjudicate on issues involving a specialised subject matter, the intention being that proceedings should be conducted with a minimum of formality so as not to disadvantage the unrepresented party. Research shows that this is a result which has proved very hard to achieve (Endnote 55). But there are now some 78 tribunals for which the Council on Tribunals is responsible. Secondly, the last half century has seen the rise and multiplication of Citizens' Advice Bureaux offering free advice to members of the public on questions of law and almost anything else. Initially the bureaux were a response to war: within a month of September 1939, 200 had been established, and by 1943 the figure had reached over 1,000 (Endnote 56). The National Association of Citizens' Advice Bureaux now has over 700 members; between them they receive nearly £60m in central government and local authority funding (Endnote 57). Thirdly, there has, since the founding of the first law centre in North Kensington in 1970, been a rapid growth of such centres elsewhere. The Law Centres Federation now has 53 members; the Federation and the centres between them received over £13m from public sources during the year 1996/97 (Endnote 58). At these centres members of the public have been able to obtain advice on matters such as disability, immigration, discrimination and welfare in which the centres have acquired great expertise (Endnote 59). Fourthly, we have seen a very rapid growth of advice agencies. The Federation of Independent Advice Centres has some 800 members (Endnote 60), covering fields so various that the Law Society has published a Referral Guide to assist solicitors to refer clients to the appropriate agency. If I mention the Child Poverty Action Group, Shelter, Youth Access, the Money Advice Association, Dial UK (disability information and advice lines) and the Refugee Legal Centre, it is only to illustrate the breadth of the fields which these agencies cover. In the year 1993/94 the Federation and its members received some £74m in public funding, mostly from local government. Fifthly, reference should be made to the growth of Ombudsman schemes. The National Consumer Council has published an A-Z of such schemes in Britain and Ireland. Some of these are very well known. Others, such as the Funeral Ombudsman, are perhaps less so. Almost all these bodies (not all bearing the name Ombudsman) have power to direct or recommend the payment of compensation: the exceptions are the Police Complaints Authorities in England and Wales and Northern Ireland and the Broadcasting Standards Commission. The Press Complaints Commission does not appear in the guide; if it did, it would provide another exception. Sixthly, we have seen the introduction, for the first time in England and Wales, of conditional fees, that is, arrangements which provide for barristers and solicitors to undertake cases on the condition that they receive no fee if the client's case is unsuccessful but an enhanced fee if it succeeds. Such arrangements, made possible by section 58 of the Courts and Legal Services Act 1990, were in 1995 made applicable in proceedings involving personal injury, insolvency and human rights cases in Europe. It is thought that conditional fee agreements may have been made in one or two human rights cases (Endnote 61), and in a trickle of insolvency cases (Endnote 62); but in the relatively short period (about 30 months) since such agreements have become possible it appears that about 34,000 such agreements have been made in personal injury cases (Endnote 63). Seventhly, we have seen the growth of alternative methods of resolving disputes, in particular by mediation and conciliation. A number of bodies, among them the Centre for Dispute Resolution, the Chartered Institute of Arbitrators and Mediation UK, have sponsored such processes. Acceptance of these processes has been disappointingly slow, but progress, if slow, has been steady, and there is increasing recognition, not least among professional lawyers, that such processes have a valuable contribution to make in the resolution of some otherwise very intractable disputes. Eighthly, mention should be made of work which the Bar and solicitors undertake pro bono. Since 1972 the Bar has run its Free Representation Unit, through which Bar students, pupils and young barristers have provided representation for otherwise unrepresented members of the public. In 1996 the unit provided such representation to 1,615 individuals (Endnote 64). In May 1996 the Bar established a Pro Bono Unit to co-ordinate the pro bono contributions of practising barristers. To date some 800 barristers (including 130 QC's) have joined the register of those ready to offer at least 3 days' advice and assistance each year without charge (Endnote 65). Even more recently a number of leading firms of solicitors have launched the Solicitors' Pro Bono Group with a view to co-ordinating the pro bono work which solicitors have always done and continue to do on behalf of needy clients up and down the country (Endnote 66). This is a field in which other jurisdictions, particularly in the United States and parts of Australia, have moved much more quickly and much more effectively than we have ourselves. Finally, attempts have been made to reform civil procedures so as to reduce delay and expense and make legal proceedings less unaffordable to those of limited means. There can scarcely have been a year during the last half century when some body has not reported on means of achieving that end. But there can be no doubt that the most far-reaching and comprehensive reforms to have been proposed during this long period have been those proposed by Lord Woolf in his two reports on Access to Justice. These proposals have the very clear intention of reducing the cost of proceedings, particularly of smaller actions, so as to make it less grossly disproportionate to the sum in dispute.

Through all these years, the Legal Advice Centre at Toynbee Hall has continued to operate on lines remarkably similar to those on which it began, open on one evening a week, staffed by volunteers and giving help and advice, by no means all of it legal, to the poor and the disadvantaged. Apprehension in the early 1970's that the growth of legal aid might lead to a decline in demand for the Centre's services quickly proved to be ill-founded. As the booklet prepared for this centenary points out, the level of demand has remained very constant: around 1500 cases were handled in 1973; in 1993 the Centre handled 1601. The mix of cases has also remained very constant: while problems concerning immigration and the right to buy council properties did not loom large a century ago, other problems - matrimonial and family cases, disputes between landlord and tenant, personal injuries, employment problems and crime - have remained a staple part of the diet. There can be no doubt that the volunteers' services are as valuable today as they have ever been, perhaps, even more so, and it is right that their work, and the support of leading City firms, in particular Linklaters and Paines, should be warmly applauded.

Despite all the initiatives I have mentioned, however, and despite the continuing and valuable work done by legal advice centres such as that at Toynbee Hall, there can be no doubt that the main burden of bringing legal advice and representation to those who cannot pay for it has fallen over the last half century on the legal aid scheme, through duty solicitor schemes established in police stations and courts, through the green form scheme providing for initial advice, through assistance by way of representation and through the main legal aid scheme established in 1949 and modified but not fundamentally altered since. Over the past half century the scheme has, to a very great extent, lived up to the ideals of those who conceived and established it: countless people have been enabled by it to assert and defend their rights in a way which they could not otherwise have done. But during the 1990's, the scheme has come under great and growing pressure. In part this has stemmed from recognition that many cases have been brought with the benefit of legal aid which no well- advised client would have thought it prudent to finance from his own resources. But there is nothing new in this: it has been known for years that professional advisers, naturally and properly anxious for their clients to be compensated, are inclined to be more sanguine about the prospects when failure means the loss of a potential benefit rather than the suffering of a substantial actual loss. Partly it has stemmed from recognition of an unfairness inherent in the existing system: a privately-funded defendant facing a legally-aided plaintiff has a choice between paying his own costs if he wins and both parties' costs if he loses; so he has an obvious incentive to pay the plaintiff something, however unmeritorious the claim, simply to restrict his losses. But this again is nothing new. It has been a feature of the scheme from the beginning, and this element of unfairness has long been recognised. It seems unlikely that these two objections, for all their force, would have led to pressure for a fundamental change of the system but for a third objection of incomparably greater weight: that the system has become hugely and uncontrollably expensive. Net expenditure of £682m in 1990-1991 rose within six years to more than double, a total of £1477m. Over the period the average cost of actions funded has risen by more than the rate of inflation, while the number of people helped (in the civil and matrimonial fields) has fallen (Endnote 67). Some practitioners appear to have been rewarded, out of the public purse, with considerable generosity. The last government attempted to grapple with the problem of rising cost by restricting eligibility for and tightening the administration of legal aid. But these efforts proved unavailing.

The present government were elected to office on a manifesto which contained the following pledge:

Indications of the shape which the proposed community legal service may take have so far been given only in very general terms. But it seems very likely that an attempt will be made, with the benefit of new information technology, to build on the existing network of agencies already offering advice and representation (Endnote 69). In relation to the reform of legal aid, the government have given very clear indications of their thinking, which has developed somewhat over recent months in the light of representations and discussion. The main thrust of the current proposals, as derived from a consultation paper issued in March 1998 (limited to civil, excluding matrimonial, legal aid), are these: (Endnote 70)

1. Clients and lawyers will be free to enter into conditional fee agreements in any proceedings other than family and criminal cases (Endnote 71).
2. The government will remove, over time as the market for conditional fees and supporting insurance and funding develops, most money and damages claims from the scope of legal aid (Endnote 72).
3. The government will remove from the scope of legal aid claims for money or damages arising from disputes about inheritance under a will or an intestacy; matters affecting the administration of a trust or the position of a trustee; matters relating to the position of company directors, restoring a company to the Register or dealing with the position of minority shareholders; matters affecting partnerships; matters before the Lands Tribunal; cases between landowners over a disputed boundary of adjacent property; and cases pursued in the course of a business (Endnote 73).
4. The government will concentrate legal aid resources on certain priority areas including
   1. claims arising from people's maintenance, possession, use or enjoyment of their homes (Endnote 74);
   2. actions brought to challenge the exercise of power by governmental and other public bodies, including action based on the conduct of bodies such as the police (Endnote 75);
   3. the defence of claims, at any rate where there is no counter- claim (Endnote 76);
   4. for the time being, and subject to a requirement that cases are handled by solicitors with experience in the field, claims based on medical negligence (Endnote 77).
5. The government will establish a transitional fund to provide additional or support funding for, or to fund, cases in which the investigative cost or the cost of conducting the action is very high, or in which there is a demonstrable public interest (as in a case concerned with distribution of a pharmaceutical product, or pollution), where the interests of many people are affected and the case is unlikely to be the subject of a conditional fee agreement (Endnote 78).
6. The government will reconsider granting assistance with the initial start- up costs of a Contingency Legal Aid Fund as proposed by the Bar, or a Conditional Legal Aid Fund as proposed by the Law Society, if a business case is developed to show that such a fund would be viable (Endnote 79).
7. The government will consider taking the necessary reserve powers to allow it to establish a contingency Legal Aid Fund to guard against the possibility that conditional fee agreements do not achieve the results which the government hopes for (Endnote 80).

The issue that has emerged, between the Bar and the Law Society on the one side (with impressive support from the Consumers' Association, the National Consumer Council, the Legal Action Group, the Law Centres Federation, the Advice Services Alliance, Liberty, Justice, The Federation of Independent Advice Centres, The Child Poverty Action Group and Shelter) and the government on the other is in some ways surprisingly narrow. No one argues that the system should continue to operate as it currently does. It is accepted, however reluctantly, that the Lord Chancellor is bound by his government's spending limits and there is a welcome for his pledge that overall spending on legal aid will not be reduced (Endnote 81). There is fairly general acceptance that legal aid has been used in the past to finance cases which did not deserve support on their merits. Most would agree on the desirability of focusing available resources on areas of greatest need to a greater extent than in the past. There is, however, at present a radical difference of view on the best means of achieving these ends, and the crux of the difference concerns the extension of conditional fee agreements and the corresponding withdrawal of legal aid.

The government's argument is attractively, perhaps even deceptively, simple. It starts from the fact, already mentioned, that upwards of 30,000 personal injury cases have already been funded by conditional fee agreements. In the bulk of these cases the claimant has, on payment of a premium, obtained insurance cover against the possible debt he may incur to his opponent if the action is unsuccessful. As conditional fee agreements become more widely permissible, so (in the government's view) it can be assumed that insurance will become more widely available. The virtue of extending conditional fee agreements, it is argued, is that they require a party's professional advisers personally to back their judgment that a claim has a good chance of success; if they have too little confidence in their own judgment to back it by entering into a conditional fee agreement, then there is no reason (save in special categories of case) why the taxpayer should back it. The government place reliance on a report which indicates that up to now conditional fee agreements have operated fairly and in the client's interest (Endnote 82) and on discussions which indicate that insurance cover is likely to become increasingly available at reasonable cost (Endnote 83).

Opponents of these proposals challenge the government's starting point. The experience of conditional fee agreements in personal injury cases, it is argued, provides no reliable guide to the future, since many of these cases are relatively straightforward, they proved in the past to have a very high rate of success and they have as a result made relatively modest demands on the Legal Aid Fund. The Bar does not, from its own inquiries, accept that insurance cover would become available at reasonable cost in the much wider and more varied range of disputes which it is proposed to exclude from legal aid cover. The Bar therefore disagree, strongly, with the proposal to extend conditional fee agreements and abolish legal aid in money recovery claims. They contend that conditional fee agreements

While accepting the existence of such agreements as one means of access to justice, the Bar regard any general extension of these agreements as premature even if legal aid were preserved in money recovery claims. The Bar, however, oppose the abolition of legal aid for money recovery cases on the ground that this will effectively deny access to justice to the poorest members of society, and for deserving claims. In a response to the Lord Chancellor's consultation paper, Justice take the same view (Endnote 85). As a constructive counter- suggestion, the Bar (supported by Justice) propose a Contingency Legal Aid Fund. Access to this fund would not depend on means but on merit. The Fund would be financed by contributions from successful plaintiffs supported by the Fund, who would pay into the Fund a pre-determined proportion of the sum recovered. Out of the Fund there would be paid the costs of the unsuccessful, costs ordered to be paid in favour of their successful opponents and the administration costs of the Fund. The Bar rely on an expert study which the have commissioned, and which suggests that a Fund run in this way would be financially viable. The Bar argue that such a Fund would avoid most of the undesirable features which would flow from extending conditional fee agreements and abolishing legal aid in most money recovery cases. The Law Society's proposed Conditional Legal Aid Fund is more complicated, and has some features in common both with the government's proposal and with the Bar's.

In their March 1998 consultation paper, the government acknowledge that a Contingency Legal Aid Fund as proposed by the Bar has some advantages (Endnote 86), but criticise the scope of the feasibility study on which the Bar has relied and question whether such a Fund would be financially viable, given its initial obligation to repay start-up loans. The root of the government's objection to such a Fund, however, lies in the belief that such a Fund would not work alongside conditional fees (Endnote 87), and the government are firm in their view that conditional fees offer the best means of extending legal advice and assistance in the great majority of money recovery cases. It is, however, interesting, and perhaps significant, that the government do not slam the door on the Bar's proposal: they accept that legal aid funds might properly be used to assist in the establishment of a Contingency or Conditional Legal Aid Fund; and they propose to take powers to establish such a Fund if their confidence in conditional fee agreements, and the availability of insurance, prove in the longer term to be ill-founded (Endnote 88).

It is perhaps important to bear in mind that the government's present proposals do not affect the availability of legal aid in criminal cases, which on the most recent figures absorbed £355 million out of the total net expenditure of £1216.7 million (Endnote 89). While the scales of fees paid for the conduct of such cases is of course open to review, it would indeed be hard for the government to make substantial changes in principle since article 6.3 (c ) of the European Convention on Human Rights, currently in course of incorporation, provides that

Nor do the government's present proposals extend to family cases, which on the most recent figures absorbed £392.6 million of the Legal Aid Fund's total expenditure, more than is spent on criminal proceedings (Endnote 90). Of this family expenditure, nearly half related to proceedings under the Children Act 1989 (Endnote 91): while no one would question the prime importance of proceedings relating to the welfare and upbringing of children, it may well be doubted whether all this money is usefully and prudently spent.

In relation to the main thrust of the government's proposals for the reform of civil legal aid, the argument is a complex and closely reasoned one. One cannot read the well-argued responses to the Government's proposals submitted, for instance, by the Bar, the Personal Injuries Bar Association (Endnote 92) and Justice without appreciating the difficulties and the potentially fateful consequences of any radical change to the current arrangements. Those of us who have had no contact with insurance interests cannot be other than unsure whether insurance cover will be available in the much wider range of civil proceedings which are suggested as suitable for conditional fee agreements. If such cover is not generally available at reasonable cost, then it seems unlikely that conditional fee agreements will fill the gap left by the withdrawal of legal aid, unless of course we were to modify the rule, taken for granted by lawyers in this country but not in comparable jurisdictions elsewhere or on the Continent of Europe, that the successful party in litigation should recover his reasonable costs against the unsuccessful. For us in judging these proposals, and for the government in implementing their proposed changes, the guiding principle must surely be that so clearly recognised by the founders of the Toynbee Hall Poor Man's Lawyer a century ago and by those who introduced the legal aid scheme half a century later: that the laws of our country exist for the benefit of the poor as well as the rich; that equality before the law is a pretence if some citizens can assert and protect their rights and others cannot; that the rule of law, to be meaningful, must ensure that justice is available to all, irrespective of means. For it is three and a half centuries since Colonel Rainborough so memorably observed, during the Putney Debates of 1648, that "The poorest he that is in England has a life to live as the greatest he". That is a precept which underpins not only the Legal Advice Centre but also Toynbee Hall itself, and all that it does.

Endnotes

• 1. Egerton, "Historical Aspects of Legal Aid", 61 LQR (1945) 87 at 92.
• 2. Walz, "Legal Aid Societies - Their Nature, History, Scope, Methods and Results" (1914) 7 Maine LR 111 at 112.
• 3. Egerton, op.cit., at 92
• 4. Cohn, "Legal Aid for the Poor: A Study in Comparative Law and Legal Reform", 59 LQR (1943) 250 at 251.
• 5. Cohn, op. cit., at 253, f.n.8; 79 Sol.Jo.(1935) 713
• 6. Shaw, "Justice and the Poor. A Plea for Legal Insurance" (1936) SLT 135 at 136
• 7. Ibid.
• 8. Ibid, at 142
• 9. Ibid, at 143
• 10. Ibid, at 137
• 11. See Egerton, op. cit, at 87
• 12. Ibid.
• 13. Ibid., at 87-88
• 14. See Goriely, "The Development of Criminal Legal Aid in England and Wales", in "Access to Criminal Justice: Legal Aid, Lawyers and the Defence of Liberty", (1996) ed. Young and Wall.
• 15. Ibid., at 29.
• 16. Quoted by Goriely, op. cit., at 32.
• 17. Goriely, op. cit., at 35
• 18. Ibid.
• 19. Ibid., at 37
• 20. Ibid.
• 21. Ibid.
• 22. Ibid., at 38
• 23. Ibid., at 38 f.n.63
• 24. First Report of the Committee on Legal Aid for the Poor, Cmd.2638, (1926), para 22.
• 25. Ibid., para 9.
• 26. Ibid., para 15.
• 27. Goriely, op. cit., at 39
• 28. Ibid.
• 29. Ibid., at 39-40
• 30. Ibid., at 40
• 31. Cmd.3016 (1928), para.9.
• 32. Ibid., para 13.
• 33. Ibid., paras 16,17.
• 34. Egerton, op. cit., at 91.
• 35. Pritchard, 79 Sol.Jo.(1935) 713 at 714. See also Samuell, "An Evening with a Poor Man's Lawyer, The Conveyancer, (March 1941) 195.
• 36. Pritchard, op. cit., at 714.
• 37. Ibid.
• 38. Samuell, op. cit., at 197.
• 39. Briggs and Macartney, "Toynbee Hall - The First Hundred Years" (1984), at 99.
• 40. Ibid.
• 41. Final Report of Finlay Committee, Appendix III.
• 42. Ibid.
• 43. "The Poor Man's Lawyer", 104 JP & LQR (March 1940), 160.
• 44. Ibid.
• 45. Egerton, op. cit., at 93.
• 46. Ibid.
• 47. Cohn, op. cit., 251, 359; see also Loewensohn, "The Poor Man's Right to Legal Aid - A Comparative View", 61 Scottish L.R. (1945), 55.
• 48. Cohn, op. cit., at 256.
• 49. Ibid, at 265.
• 50. Goriely, op. cit., at 41
• 51. Ibid.
• 52. Cohn, "Legal Aid to the Poor and the Rushcliffe Report", 9 MLR (1946) 58 at 66.
• 53. Goriely, op. cit., at 42.
• 54. Ibid, at 43.
• 55. Genn and Genn, "The Effectiveness of Representation at Tribunals", Report to Lord Chancellor, July 1989.
• 56. Lovelock, "Review of the National Association of Citizens' Advice Bureaux, Cmnd 9139, (February 1984) Chap.4, para.4.3.
• 57. LCD Briefing Paper.
• 58. Ibid.
• 59. See, for example, the Law Centre Federation Annual Report 1996-1997.
• 60. LCD Briefing Paper.
• 61. "Future Conditional", Law Society Gazette, March 1998, 18 at 22.
• 62. Ibid.
• 63. "Access to Justice with Conditional Fees", LCD Consultation Paper, March 1998, para.2.5.
• 64. "Access to Justice: A Fair Way Forward", The Bar's Response to the Government's Proposals, January 1998, para.8.2.
• 65. Ibid., para.8.3.
• 66. The Group was formed in November 1996 following a meeting of 50 solicitors from all parts of the country.
• 67. Lord Chancellor, speech to Law Society at Cardiff, 18 October 1997; Lord Chancellor, HL Deb.9 December 1997, cols.41-42; "Access to Justice with Conditional Fees", March 1998, paras.1.4, 3.3.
• 68. New Labour "Because Britain Deserves Better", 1997, p.35
• 69. HL Deb.9 December 1997, col.47; Parliamentary Secretary at the LCD, speech to Law Society conference, 29 April 1998. "Access to Justice with Conditional Fees", March 1998, para.1.7. See also NCC Report, "A Community Legal Service", April 1998.
• 70. "Access to Justice with Conditional Fees", March 1998.
• 71. "Access to Justice with Conditional Fees", March 1998, para.2.7
• 72. Ibid., para.3.11.
• 73. Ibid., para.3.23
• 74. Ibid., para 3.12.
• 75. Ibid., para.3.13.
• 76. Ibid., para.3.14.
• 77. Ibid., paras.3.15, 3.16, 3.18.
• 78. Ibid., paras.3.28, 3.30, 3.31, 3.32, 3.25, 3.36.
• 79. Ibid., para.4.11.
• 80. Ibid., para.4.12.
• 81. HL Deb., 9 December 1997, col.42.
• 82. "Access to Justice with Conditional Fees", March 1998, para.2.10: "The Price of Success Lawyers' Clients and Conditional Fees", Yarrow, Policy Studies Institute, 1997.
• 83. HL Deb., 9 December 1997, col.44.
• 84. "Access to Justice: A Fair Way Forward", January 1998, para.1.13. And see "Access to Justice with Conditional Fees - The Bar's Response to the Consultation Paper", 27 April 1998, para.1.7
• 85. Justice Response, April 1998, para.5.5.3.
• 86. "Access to Justice with Conditional Fees", March 1998, para.4.5.
• 87. Ibid., para.4.10.
• 88. Ibid., paras.4.11, 4.12.
• 89. Annual Report, Legal Aid Board, 1996-97, para.1.12.
• 90. Ibid.
• 91. Ibid., p.78.
• 92. "The Better Way Ahead - Building on Success", 27 April 1998.

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