Surviving Armageddon: BC 1 England 0

Cuts of around 40 per cent; government policy to fund only what is required by judges; mass firings of legal aid staff; replacement of a recalcitrant board of the equivalent of the Legal Services Commission and the appointment of a trustee to hammer through belt tightening. You think we have it bad. British Columbia in 2002 was worse. It is still not that good: lawyers in Vancouver have just organised a legal aid boycott.   But, crucially, legal aid in BC began to climb out of the pit – with lessons for us.

The crucial difference between our position and that of BC is that, unlike by Chris Grayling and the Legal Aid Administration, cuts were not seen as an end in themselves. Yes, the government wanted blood but, provided legal aid could work within a reduced budget, then its administration was left free to do the best that it could. At first, the extent of the slaughter left little wriggle room and lawyers still argue that they should have been the first beneficiaries of any discretionary cash. But, the Legal Services Society, the legal aid administrator, has gradually sought to re-engineer its purpose as not only to provide representation in core cases but to deliver self help and advice designed to assist people to resolve legal problems on their own.

The LSS retained key staff during the carnage even though three quarters of its salaried lawyers departed. Heidi Mason was responsible for family law services. Her annual budget had reduced had already reduced from £18m to £10m before the 2002 cuts. It slumped further to 2.5m. What did she do? She went to California to consult with those running self help centres in the courts and decided to set one up in Vancouver. She also established a family duty counsel scheme to provide some form of minimal representation. And, crucially, the LSS published an early family law website to assist litigants in person. ‘We have always worked in a culture of trial and error,’ she said ‘and we gave it a go. We found it was very successful. We started winning awards’. Discovering that lawyers were using the site more than their clients, they tried adding videos to bring in more ordinary people. It worked. In the same iterative way, the LSS eventually added outreach workers to provide face to face assistance where required. The shift from a litigation culture chimed in with the family law zeitgeist more widely with the growth everywhere of mediation and collaborative lawyering: ‘we were inadvertent change agents,’ Ms Mason said.

You can get a flavour of the difference between our two jurisdictions just by reading the strategic objectives which, under new director Mark Benton, the LSS developed in 2003. They included to ‘develop and continually improve an integrated legal aid system’ and both to ‘build and maintain relationships with communities to enhance our mutual ability to meet the needs of people with low incomes’ and to ‘develop, implement and evaluate innovative approaches to improve delivery of legal services’.

Canadian lawyers might have given a hollow laugh at these aspirations but what would they say if they compare them to the Legal Aid Agency’s current business objectives? There are three and the first gives the flavour of the rest: ‘to improve casework to reduce cost, enhance control and give better customer service’. And which more detailed goal reveals the Agency’s understanding of such a goal? To ‘work closely with providers to reduce further the net error rate on payments to providers and on eligibility assessments’. Or, would you prefer another? ‘To ‘continue to increase gross collections through the CCMT scheme, improve collection rates, cash and secured debt ratios and consequently the savings realised’? And, no, I have no idea either what CCMT means either; the document does not explain; and the authors are clearly talking to themselves.

The difference a decade after BC’s cuts is that I have come all the way to Vancouver to see the brilliant work that the Legal Services Society, the Justice Education Society and the Courhouse Libraries are providing in digital delivery to those on low incomes. Google, families, (soon to be for a host of cutting edge provision in the province. Even the Ministry of Justice is joining in. Legislation in 2012 allows the funding of an online small claims court, the civil resolution tribunal, which will come on stream next year. Try even to file an electronic document in our own dear courts. No chance. No imagination. No innovation. Just a Minister and a Ministry shorn of any interest save in reducing expenditure. Cuts, Mr Grayling, are the easy part. Making sense – or even the best – of them takes imagination and innovation. Get on a plane; meet your BC counterparts and be appropriately humble about your government’s limited imagination and barren approach to policy.

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Roger Smith is an expert in domestic and international aspects of legal aid, human rights and access to justice.

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