Working Theory

by Michael Reed

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I do employment law for the Free Representation Unit.

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michael at workingtheory.co.uk

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What will this lying liar lie about next?

16 April 2015

In the course of further twitter discussions about whether lawyers should act pro bono in cases that have been taken out of legal aid, @nearlylegal made a strong point that I don’t think I really covered in my original post

@reedmj @Familoo @DinahRoseQC @CrimBarrister @RachelKFrancis I'm genuinely undecided on this one. It is very difficult. Worry is not that >

— Nearly Legal (@nearlylegal) April 15, 2015

@reedmj @Familoo @DinahRoseQC @CrimBarrister @RachelKFrancis > pro bono does or could fill the gaps, but that it gets pointed to as doing so

— Nearly Legal (@nearlylegal) April 15, 2015

I agree this is a problem. People do sometimes suggest that pro bono will take over where legal aid stops.1 And it is nonsense.

Pro bono work can’t possibly act as a meaningful substitute for legal aid. It’s like thinking that we could replace the NHS by having doctors and nurses help people voluntarily.

Since it is nonsense, it’s a potentially very damaging idea if it prevents legal aid being restored or further cut where it’s needed.

But I don’t think this is likely. Anyone who suggests that pro bono might significantly mitigate the withdrawal of legal aid is either terribly confused or fundamentally dishonest. At which point, I just don’t feel it’s worth modifying anyone’s behaviour in response.

People who are confused will probably stay confused whatever we do. And the dishonest people will just pick another lie to justify the policy they want: ‘Withdrawal of legal aid won’t really prevent access to justice because [judges are used to coping with litigants in person / the government never really acts unlawfully anyway / most cases are vexatious / it’s all gold plated Euro Rights / etc etc etc / ].

This doesn’t mean we shouldn’t stamp on the mistake when it arises. As is probably apparent, that’s part of the point of these posts.

But even if everyone withdraws from pro bono work that should be covered by legal aid, I fear it won’t make much impact on some people’s stubborn refusal to recognise that we’re facing a serious crisis in access to justice. People who haven’t recognised that just aren’t engaging with the reality of the situation to begin with. Either they’re confused or they’re dishonest. Either way, trying to adjust their flawed perception of reality changing that reality slightly seems futile.

  1. For example, the Proposals for the Reform of Legal Aid in England and Wales mentioned FRU as part of its justification for removing legal help from welfare benefit cases – see ¶4.218.

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