In this essay Oliver Subhedar asks North Kensington Law Centre, 50 years old in July 2020, what has changed since John Hobson QC’s paper “The Concept of Law Centres” (February 1974) and what the future holds.
“If you don’t have access to justice for everybody, then really you don’t have a democracy”.
Annie Campbell Viswanathan, Director of North Kensington Law Centre
North Kensington Law Centre, the first of its kind established in the UK, will turn 50 years old on 17th July 2020. In circumstances where many Law Centres have been forced to close their doors in the face of a decade of severe and sustained attacks to their funding, this achievement cannot be underestimated. Now seems the right time to analyse the achievements and challenges of the Law Centre movement generally, but in particular those of North Kensington Law Centre, and to try to predict what the future might hold. This paper aims to do so partly by way of a response to John Hobson’s insightful 1974 paper, The Concept of Law Centres.
In that paper, Hobson identified several areas where the system for the provision of legal services then simply was not working for the most marginalised in society. At that time, lawyers (perhaps a product of their legal education and training) generally only concerned themselves with the protection of private property, with very few making their services available for poor clients. Those who did venture into areas “hitherto neglected by their profession” in order to represent tenants, consumers and debtors found themselves pariahs, railing against the might of the establishment.
Although the legal aid system introduced in 1949 had taken the first steps to rectify this imbalance in access to justice, it was still in its infancy and not comprehensive enough to properly address the issue. Consequently, legal services were still out of reach for many of those who needed them most.
It was against this backdrop that Hobson, inspired by his time working with Community Legal Services in Philadelphia, and others started to appreciate that access to justice for all could not be achieved without a radical change to the way in which legal services are provided. This change would take the form of a comprehensive national network of neighbourhood Law Centres. In 1971, Simon Hillyard conceptualised Law Centres as similar to the US neighbourhood Law Centres and run by “a new independent body where salaried solicitors would be employed to provide a free legal service”1.
It was Hillyard’s belief that there was a significant proportion of legal need that was just not being catered for economic reasons 2. Although some private practice firms had set up office branches in poorer neighbourhoods, they simply could not attract enough clients to justify the operational cost. On the other hand, the newly formed North Kensington Law Centre had been inundated with clients in need of their assistance. One reason for this discrepancy of uptake was undoubtedly client trust.
Lawyers have always been the subject of public suspicion. The famous line “The first thing we do, let’s kill all the lawyers” from Shakespeare’s Henry VI, shows that a frustration with a variety of legal services has subsisted for centuries and this is still prevalent today. Many private practice solicitors working in immigration speak of how their more vulnerable clients often initially believe that they are somehow affiliated with the Home Office. These clients need reassuring that the solicitor’s job is to act in the best interest of the client.
The Law Centre lawyer, being embedded in the community and, crucially, without the profit motive that so often taints the client lawyer relationship, is inherently better placed to gain the trust of clients in the poorer areas in which they operate.
Peter Kandler describes when the Law Centre first opened in North Kensington in 1970, they overcame this initial distrust by posting newspaper clippings of the centre’s recent cases in the window. Similarly, Hobson references accompanying a detached youth worker on camping trips and playing football with the juveniles who he was to represent as pivotal to establishing trust, as “initial contact with them was made on their territory and not mine”3.
Some fifty years later, and particularly after a decade of austerity, many poorer communities continue to feel marginalised, as though the established power structures are working against them, not with them. Now, as identified back in 1974, there is a need for lawyers to establish concrete links with the communities that they are serving. As Hobson correctly points out, the Law Centre’s “very credibility as a neighbourhood centre demands links with other community organisations”4. The idea of community credibility is at the heart of the work of Law Centres. For example, North Kensington Law Centre (“NKLC”) has established links with the Lancaster West Residents’ Association (who by lucky coincidence are based in the same building as the centre). It is only through close relationships with the community that the Law Centre can pick up on issues that are relevant to the community, and champion their cause with any authority.
The Legal Aid, Sentencing & Punishment of Offenders Act 2012 (“LASPO”)5 has eroded that community trust – we now have so-called legal advice deserts and legal aid for key areas of law for any deprived community – employment and welfare benefits – was withdrawn overnight. Ian O’Rourke, former director of NKLC in 1991 and 1992, now practises in Berwick-upon-Tweed – the nearest other duty solicitor is over 50 miles away, an expensive journey involving several buses.
Speaking from his own experience of the harmful impact of legal advice deserts, Ian O’Rourke said, “Berwick is a thriving market town which sits on the Scottish border and has a large rural client base living on both sides of that border, some in small to medium size towns and others in remote rural locations. Rural poverty, drugs and disengagement are major issues.
There has been a massive erosion over the last twenty years in the number of solicitors providing publically funded advice, assistance and representation. The reasons are complex but largely economic not only in terms of the income this work generates when contrasted with private work but also the drive towards centralisation of courts and police custody centres in very distant urban hubs as well as decreasing volumes.
Community trust in their representatives at police interviews is often eroded when the police, for their own reasons, choose to request duty solicitors from other schemes closer to their urban station and clients end up represented by providers who are often inaccessible and solely focused on volumes and their balance sheet. All too frequently lip service is paid to quality standards and clients are often disengaged from the conduct and process of their own defence.
There is one other solicitor dealing with legal aid cases in this large area who specialises in family and child law.
Attempts to signpost people requiring assistance in housing, employment, welfare benefits, mental health law, personal injury or those seeking to challenge the decisions of public authorities can be extremely frustrating and even when successful, are likely to eat up most of the client’s weekly benefits simply in travelling costs.
For those of us practising in advice deserts we soldier on but the future looks bleak and we are conscious that we are an ageing demographic.
The notion that this issue can somehow be addressed by the expansion of pro bono advice appears to have been dreamt up in some rarefied smoking room in Whitehall, far removed from the reality of these communities and their needs.
A proper network of properly funded Law Centres with the ability to provide an effective outreach service beyond city boundaries ought to be a pressing need on the part of central and local government. I would go so far as to suggest that this would truly meet the test of “one nation” government – access to justice for all citizens.
At the same time there is a need to incentivise young lawyers to practice in areas of law that directly affect the poor and the disadvantaged in society not only within deprived inner city communities but in the sprawling rural advice deserts.”
What progress have we made?
John Hobson QC identifies three areas of development:
Firstly, the importance of pro bono work is now much more generally accepted than it was in the 1970s and 1980s. Many City firms now have established pro bono schemes, with some firms even necessitating that their lawyers undertake a certain amount of pro bono work per year. The results of the 2014 PC holder survey on pro bono work undertaken by solicitors, support Hobson’s view of progress. The survey found that, in 2014, 42% of solicitors had engaged in some element of pro bono work in the preceding 12 months 6. This prompted the then Justice Secretary, Michael Gove, to argue that “more could – and should – be done by the most successful in the legal profession to help protect access to justice for all” 7.
Unfortunately, this shows that, even in 2015, those in power failed to appreciate the depth of the problem. Perhaps this was wilful ignorance on the part of those who had caused the very issues they were now seeking to “address”. The idea that private practice lawyers should give up some of their time to give back to the community is undeniably positive – and those doing so should be applauded.
However, the cynic would argue that many these pro bono schemes are no more than a glorified PR box ticking exercise, rather than a meaningful attempt to alleviate the access to justice issues that many of the poorest in our society often encounter.
It is also disingenuous for Mr Gove to imply that the serious crisis in our justice system can be rectified by a few more private practice lawyers increasing their pro bono hours. Access to justice for all will only be achieved by a real change to the provision of legal services to those most marginalised – i.e. A comprehensive legal aid system, backed up by a national network of fully funded Law Centres, providing legal advice that is free at the point of use (similar to the NHS).
Secondly, Conditional Fee Arrangements (“CFAs”) have now become “part and parcel of the machinery of handling cases”. The basic idea of a CFA is no win, no fee and the client will not be required to pay any of the firm’s legal fees if they are not successful in their case. If, the client’s case succeeds under a CFA, then the firm is permitted to take a percentage of any damages recovered by the client. The current director of NKLC, Annie Campbell Viswanathan, says that an increase in the number of private firms offering to do work under CFAs in certain areas, such as employment disputes, has slightly reduced the need for these service to be offered by Law Centres. Nonetheless, there is residual unease. Some private practices are taking advantage and their clients under a CFA are required to forsake a substantial portion of any damages they recover in the event that their claim is successful. If the same service was provided by a Law Centre, the client would be entitled to 100% of any damages recovered, without having to pay any fees to the Law Centre.
Thirdly, the expansion of the availability of judicial review. Hobson says that if he had been asked to apply for the judicial review of a decision at the time when The Concept of Law Centres was written, he would have responded with a blank expression. Although there had been some landmark cases before then (such as Ridge v Baldwin (1964) 8) judicial review, as the legal tool we see today, was not readily available until in the early 1980s.
The lack of a proper means of challenging the legality of decisions made by public authorities meant that they could press forward with initiatives that directly affected local communities, without any engagement with the community, safe in the knowledge that these people had no access to legal recourse. Hobson correctly pointed out that there are now a host of organisations who are willing to challenge the decisions of public authorities via judicial review on behalf of their clients, funded by legal aid or under CFAs. Such recourse just wasn’t available to clients at the time when The Concept of Law Centres was written in 1974.
The expansion of judicial review and the increase in the number of firms willing to take such work shows that there has been undeniable progress in the four decades since Hobson’s paper was written. However, such initiatives are only useful to the extent that they are genuinely accessible to the clients who need them. Strict means testing and the incredibly low thresholds to be eligible for legal aid rules judicial review out as an option for many.
It is clear that the work of Law Centres remains necessary in 2020. Whilst we now live in a different world to the 1970s, communities are still very much in need of access to justice and the current iteration of the system seems to have forgotten Law Centres.
The appropriate space for Law Centres
A perennial question posed to Law Centres is where they fit into the legal system, alongside the other more traditional means of providing legal services. From the inception of the first Law Centre in the UK in North Kensington in 1970, there was a tension between Law Centres and private practice firms who felt threatened that this new way of providing legal services would negatively affect their workflow.
Anthony Gifford QC, a co-founder of NKLC, states that in the early days of NKLC, “we had to deal with local solicitors, some of whom saw us as a threat. They complained that we would be breaking professional rules against advertising if we went around encouraging people to stand up for their rights. With the help of a senior West London solicitor, Charles Wegg-Prosser, we offered co-operation with the local Law Society. We asked them to join our roster of solicitors who would attend police stations. We said we would not take on adult criminal cases, which were not one of the primary areas of need. We pointed out that every landlord and employer we sued would need to hire a solicitor. In that way we obtained the waiver we needed.”
Without the assistance of Charles Wegg-Prosser, NKLC would not have obtained the waiver, without which it could not have existed. But restrictive conditions were applied to these waivers which were a “considerable nuisance” according to Hobson and limited their ability to carry out work in areas such as adult crime, matrimonial work and personal injury 9.
An uneasy truce was reached in 1977 and published in the Law Society’s Gazette 10. The agreement limited Law Centres’ involvement to initial advice in the aforementioned areas in all but exceptional circumstances. However, it also curtailed the Law Society’s ability to revoke Law Centres’ waivers unless there was demonstrable evidence that the work of private practice solicitors was being “unnecessarily duplicated”. Thus, the work of Law Centres could proceed uninterrupted (albeit in strictly defined areas), without the threat of Law Society interference.
And so, Law Centres and private practice continued to co-exist throughout the 1980s. Throughout the 1980s and early 1990s, the number of private practice firms who predominantly undertook legally aid funded work soared. This is demonstrated by the fact that the number of ‘Green Form’ bills (legally aid funded) for advice on housing, welfare benefits, debt, employment and immigration rose from around 63,000 in 1980/81 to 220,000 in 1990/9111.
James Saunders, NKLC’s first trainee solicitor who teamed up with Peter Kandler in 1970: “In 1970 there was no PACE; solicitors didn’t go to police stations to represent clients because judges thought that might obstruct justice; the head of the flying squad decided who was to be fitted up, and they were often ‘verballed’ to make that true. We thought otherwise, and we went to police stations anyway demanding to see our clients in custody and then give evidence at their trials of the refusal. It was a different world then”
Despite the increase in the availability of private practice solicitors taking on legal aid work, a 2000 survey of vulnerable consumers by the Consumers’ Association, found that clients on the whole were far more satisfied by the service provided by Law Centres 12. They were impressed by Law Centre solicitors, who they found to provide a “very personal service in appropriate languages where required…good communication, both written and verbal, easy accessibility, and a focus on achieving a settlement”. On the other hand, those using traditional law firms reported “very junior representation…some…actually switched from the experienced solicitor to a junior when their funds ran out and Legal Aid was sought”. The findings of the report made equally uncomfortable reading for Citizens Advice Bureaux (“CABs”) who were characterised as “transit points between advice centres” and ““not as organizations where you could get actual help with a problem”.
This poses the question of what differentiates Law Centre lawyers from their private practice counterparts in the eyes of the client?
Back in 1974, Hobson put forward: “Fundamentally, it is the difference of approach of the lawyers and others working in the centre. They [the Law Centre lawyers] will want to use the law in a different way and will feel…that clients should reach the position individually and collectively when they are able to assert their own claim and where no rights exist at present, then be able to demand that they be granted”.
This idea of empowering clients to handle their own legal matters has been thematic throughout the history of the Law Centre movement. Hobson himself, working as a community lawyer attached to the Southwark Law Centre, became increasingly involved with the local community seeking to resist proposals put forward by developers and local authorities for the redevelopment of the docklands area of London in the early 1980s. He was heavily involved with residents, putting forward their case in successive planning inquiries, including the well-known Coin Street public inquiries.
Hobson, and others assisted the community in presenting their case at the various public inquiries and even applied for planning permission for the community’s own proposed developments on one of the developers’ key commercial sites. The council rejected the community’s proposal, but that decision was then appealed and the proposal was the subject of a further public inquiry in 1982.
Ultimately, the community’s proposal was unsuccessful, but so too were those of the commercial developers who, as published in Coin Street News in 1984, “finally admitted defeat and sold their land interests to the GLC on 29 March 1984”13.
In this way, Hobson and others at Southwark Law Centre, empowered the community to actively participate in these public inquiries, to have their voices heard, and “helped to establish what the planning framework in the area should be” moving forward.
This example is by no means exhaustive, and North Kensington Law Centre’s 50 year history is littered with similar stories of community empowerment. More recently, NKLC has worked tirelessly to obtain justice for the victims of the Grenfell Tower tragedy and the Windrush Scandal. NKLC’s Windrush Project, partly funded by the Guardian’s Christmas appeal in 2018 with the Law Centres Network, now has 30 clients, who NKLC are helping to get compensation. Annie Campbell Viswanathan, spoke with pride of this “fabulous little project” and the help that the centre has given to those affected by Grenfell. NKLC has a specialist team dedicated to giving support to those affected by the tragedy, which itself stands not a stone’s throw from the NKLC’s doors, and Annie personally handles all immigration cases for anyone impacted by Grenfell.
But the centre’s work to empower the community is as much on an individual client level as the major projects just mentioned. As Hobson put, “he [the Law Centre lawyer] acts with and not for his clients looking forward to the day when they can act without him”. This, in a nutshell, is the crux of the difference between Law Centre lawyers and those working in private practice. Without the profit motive, the Law Centre gives advice that actively aims to put the client in a position to handle his or her own issues. For instance, if a client comes in with an employment problem, the Law Centre may advise on a few steps which could be taken. It could be that, having taken those steps, the client’s employer may take their grievance seriously, and no further lawyer involvement will be necessary.
It’s hard to imagine a private practice solicitor, all too aware of the financial targets imposed on them by their firm, taking similar joy in a client no longer requiring their services. Ultimately, the difference is that any profit made by the Law Centre goes straight back into the provision of services and not into the pocket of an equity partner.
Further, Hobson’s The Concept of Law Centres emphasises the holistic approach taken by Law Centres to their clients’ problems. Ideally, the Law Centre would be a ‘one-stop shop’ for their clients’ legal issues, similar to that of a neighbourhood GP. Where a private practice solicitor may be able to assist with one finite aspect of a client’s problems, the Law Centre will look at difficulties in the whole and develop a co-ordinated approach to tackling them. For instance, Hobson points to West Stepney Neighbourhood Law Centre working with youth workers in the area of juvenile crime and even employing a full-time chartered surveyor to assist with a range of housing matters. This joined-up approach is another way that Law Centres have circumvented the traditional ways that legal advice has been provided in order to supply the best possible service to their clients and its local community.
Funding
It is impossible to write a paper analysing Law Centres without addressing the issue of funding. It seems that funding (of the lack of it) has plagued Law Centres since their inception.
Peter Kandler, talking of the early days of NKLC: “We were going broke and we were always going broke. The Legal Aid and Advice Act 1949 was insufficient in itself, Law Centres had to receive funding from central government to survive, and so they should, we were providing a vital service to the public. The government eventually did recognise this as other Law Centres sprang up in Camden, Islington and Westminster”.
And of the 1980s, he continues: “The Thatcher era eventually gave us PACE which transformed how the police operated and thankfully is still around today. But for Law Centres, who had done so much to make PACE happen, what she gave with one hand, she took away with the other by transferring the responsibility of funding away from central government and onto local government. For our Law Centre, it was particularly hard”
Walter Merricks, a solicitor with NKLC from 1971-72: “[what set us apart] was our rejection of the notion that legal services, at any rate those for poor people, should be seen as a “merchantable commodity” that had to be priced, bought and sold in a market. We worked closely alongside CABs and social workers. Nobody saw their services to poor families as items to be paid for. Legal aid was (and still largely is) based on commodification, services to each client to be priced or packaged and then claimed and paid for. Our notion of the salaried lawyer, not part of a business … became quite attractive to policy people in the Lord Chancellor’s Department which started its direct funding of Law Centres”.
Sean Canning, director of NKLC from 2003 to 2013: “We need a better funding model based on central government grant funding free of the constraints of contract funding. The demographics of Law Centre clients poses enormous challenges in trying to deliver a sustainable service without additional funding. Law Centres have demonstrated tremendous resilience over the last twenty years in delivering advice services whilst trying to navigate disruptive and destabilising changes in legal aid funding as well as successfully attracting other funding into the sector.”
The present funding of Law Centres is complex and last year approximately a third of NKLC’s funding came from legal aid, a sixth from the local authority and the remainder from grants from charitable foundations. Firstly, there is an obvious tension between Law Centres accepting funding from the very local authority whose decisions they may have to challenge on behalf of their clients. This is particularly poignant for NKLC in the aftermath of the Grenfell Tower tragedy.
This unstable footing has left many Law Centres constantly hamstrung by the threat of political sea change and funding cuts. The effects of this on access for justice services can be severe, as demonstrated by the recent closure of both Lambeth Law Centre and Brent Community Law Centre (“BCLC”) in the last twelve months. Once a direct and progressive institution, BCLC, which was at the forefront of tackling sex discrimination issues in the 1980s, was left emaciated by funding cuts following LASPO. This led to a much criticised merger with the local CAB and, eventually to a situation where the centre was forced to close. The Law Centre Network’s head of policy and profile, Nimrod Ben-Cnaan said, “”We are already exploring ways to re-establish a Law Centre service in the London Borough of Brent and hope to do so before long” 14.
The significant loss in legal aid income and the instability of local government income, meant more reliance on grant funding from charitable foundations.
Raji Hunjan, former director of NKLC from 2013 to 2016 reports: “Free legal advice was snatched from the people who needed it the most as drastic legal aid cuts came into force. Against this backdrop, we were determined to survive, and with my small and committed team, we metaphorically threw open our arms to the community and started to work out how we would reinvent ourselves… I am indebted to Natalia Rymaszewska and Bob Nightingale from the London Legal Support Trust, Tudor Trust, AB Trust and City Bridge – they not only gave us financial support, but also practical and sometimes even emotional support. I am still proud of the 2014 London Legal Walk, where we came together as a community and raised thousands of pounds, the most earned by any Law Centre that year”.
But as Annie Campbell Viswanathan explains “We are still in survival mode. Without grant funding we would have become extinct, and we have now built solid relationships with our funders. But this should not be at the expense of legal aid funding. We have shown ourselves to be resilient and now is the time for real investment. We are succeeding with our clients cases and at the same time trying to train the lawyers and public servants for the next generation, and the next. Community minded lawyers and public servants. We cannot do that without help from our government”.
NKLC is currently trying to obtain funding to help the community address issues surrounding school exclusions, something that the centre was able to do in the 1990s. This is an area that the centre is aware needs serious attention and that the community are desperate for help. However, as well as the obvious cost of hiring an education specialist or employment solicitor to do the work, it is very likely that the centre would need to relocate in order to accommodate the extra staff member. This would involve a cost which the current funding of NKLC does not permit.
So what does the future hold for Law Centres?
In circumstances where experts are predicting a deeper recession than that which followed the financial crisis of 2008, as a result of the COVID-19 pandemic, it is not difficult to see that the need for Law Centres will not diminish. In fact, as the fallout from the pandemic becomes clearer, it is highly likely that there will be more job losses, evictions and people relying on welfare benefits. These are the core areas in which Law Centres operate and their services are going to be required more than ever in the next few years.
This need will clearly not be met under the current funding constraints.
It is also fanciful to think that there will be major steps to reinstitute a comprehensive legal aid system in the near future.
What is really required to enable Law Centres to flourish is the establishment of a national network of Law Centres, funded by central government. A new body, part of the Ministry of Justice but wholly separate from the Legal Aid Agency, would be responsible for the funding of Law Centres who would then be answerable to it. In this way, Law Centres would be secured as a key public service, akin to that of the NHS.
Between 2013 and 2018, government spending on legal aid shrunk by more than £1bn15. Is it too much to ask for just some of this money to be directed towards the provision of alternative free legal services? The public does value justice. A 2018 joint survey by the Law Society, the Bar Society and the Chartered Institute of Legal Executives found that the vast majority of respondents agreed with the statement that “Justice is just as important as health or education”16.
The idea of ‘cutting services to save money’ is a false economy, and there is evidence to suggest that sustained cuts to services actually increase government costs. The removal of legal aid for early legal advice has meant that minor issues, which could have been resolved sooner and at relatively low cost, escalate. This also creates other problems (to the person’s health or finances), which in turn exerts pressure on other overstretched public services.
Law Centres can and do offer such advice and enable their clients’ problems to be resolved at an early stage, before the issue evolves into a costly dispute. A centrally funded national network of Law Centres would ensure that people get advice at this crucial early stage and would save the government money in the long term. The question is whether the government will see this in the coming years or whether it will persist with the myopic cuts that have caused the access to justice crisis that we are currently witnessing.
NKLC will continue to champion the causes of those who the system has seemingly forgotten, but they cannot do so without resources. The poorest in our society are those who are most in need of access to justice. Change is needed.
Ollie Subhedar, July 2020
Acknowledgments
The author Ollie Subhedar gives thanks to John Hobson QC for his time and help with this paper and all those from NKLC who kindly contributed:
Peter Kandler, solicitor and NKLC co-founder
Anthony Gifford QC, barrister and NKLC co-founder
James Saunders, solicitor, NKLC’s first articled clerk
Walter Merricks, NKLC solicitor, 1971-72
Ian O’Rourke, solicitor, first NKLC director after 20 years as a collective
Sean Canning, NKLC director, 2003 to 2013
Raji Hunjan, NKLC director, 2013 to 2016
Annie Campbell Viswanathan, NKLC director from 2018 to present
References
1 Hillyard, S. (1971). The Concept of Neighbourhood Law Centres. Community Magazine.
2 Ibid
3 John Hobson QC, The Concept of Neighbourhood Law Centres, February 1974
4 Ibid
5 Legal Aid, Sentencing and Punishment of Offenders Act 2012
6 The Law Society, PC Holder Survey, ‘The pro bono work of solicitors’, 2014, Page 4.
7 https://www.theguardian.com/law/2015/jun/23/michael-gove-rich-law-firms-help-secure-justice-for-all
8 Ridge v Baldwin, [1964] AC 40, [1963] UKHL 2
9 Bryant G. Garth, Neighbourhood Law Firms for the Poor (Sijthoff & Noordhoff 1980), Page 74.
10 Ibid.
11 Tamara Goriely, ‘Making the Welfare State Work’ (n 44) Page 103.
12 Jonathan M. Stein, The Future of Social Justice in Britain: A New Mission for the Community Legal Service, P27.
13 Tim Brindley and others, Remaking Planning: The Politics of Urban Change (2nd edn, Routledge 1996) Page 68
14https://www.lawcentres.org.uk/policy/news/news/brent-community-law-centre-has-closed
15 https://www.theguardian.com/commentisfree/2018/aug/12/the-guardian-view-on-legal-aid-cuts-have-caused-chaos-and-
must-be-reversed
16 https://www.lawsociety.org.uk/contact-or-visit-us/press-office/press-releases/justice-as-important-as-health-and-education-
public-say