Legal scholar at the LSE and legal correspondent of The Guardian newspaper. Involved in study and development of civil and criminal legal services in the UK, and comparisons with US.
Oral history details
| Storyteller: | Michael Zander |
|---|---|
| Interviewer: | Bamberger, Clinton |
| Date of interview: | Jan 5, 1999 |
| Where relates to: | International |
| Topics: | Civil legal aid: General, Delivery systems, Judicare, Law centers, Legal profession support, Poverty law, and Public defense |
| Law type: | Civil and Criminal |
| Collection: | CNEJL |
| Length: | 0:58:38 |
Full text of transcript
Download PDF: TranscriptConsortium for the National Equal Justice Library
Oral History Collection
Interview with Michael Zander
Conducted by Alan Houseman
Jan. 5, 1999
Clint Bamberger:
It’s January 6, 1999 and I’m at the National Equal Justice Library, at the Washington College of Law of American University, with Michael Zander of London, England. He is a member of the Law Faculty of the London School of Economics. Michael has been involved in the study and the development of civil and criminal legal services in the United Kingdom for at least 30 years, is that right Michael?
Michael Zander:
Well over 30 years yes.
Clint Bamberger:
Michael is now a member of the Runciman royal commission on criminal justice, or was a member of that commission from 1991 to 1993. My own recollection of the first discussions with Michael were in the 60s. When civil legal services was supported by the federal government, since 1965 in the United States, the decision was made early on to continue the model of salaried staffed attorneys providing legal assistance to poor people in which was the existing system in the United States, as opposed to the system in the UK that involved the private bar as the deliverers of legal services, a system that we came to call Judicare in the United States. I think that word originated here in the US.
Clint Bamberger:
Michael wrote several articles in the American Bar Journal, about the differences between the two systems, the advantages and disadvantages of each. Michael was very involved interestingly in the founding and the design of what would come to be called Law Centers in the United Kingdom, which were staff attorneys offices like the staff attorneys’ office in the United States, which were developed if I remember correctly, alongside and parallel to the system of private bar involvement as we say in the United States now.
Clint Bamberger:
It’s interesting that, as you know, Michael, we did try and experiment with Judicare in Wisconsin in the late 60s. There have been some others since then often funded by states. Without my saying more, or asking more questions, I would like you to dredge your memory of the discussions about the differences between the English system of private attorneys providing services and the staff attorneys system in the United States.
Michael Zander:
Well I’ll be happy to try and do that. I came into the story in the middle 1960s and at that time I was a young lecturer at the London School of Economics, in the law department. For some reason, and I don’t know exactly remember what the reason was, I noticed the development of legal services under the OEO program during one of my visits to the United States in those years. I came to Washington, DC and I met people here at the Legal Services Corporation. I become convinced that the concept of state salaried lawyers was an absolutely vital part of the provision of legal services for the poor, and that we in the UK were simply lacking that particular dimension.
Michael Zander:
What we had in the UK was a very developed system of providing legal services through private practitioners. They were paid by the state to provide services to the poor which were just alongside the ordinary services they provided for their other clients. But when somebody was legally aided the lawyer would be entitled to seek remuneration for those services from the state Legal Aid fund, which was administered by the Law Society on behalf of the public purse. The taxpayers, as it were, handed it over to the legal profession and the person in the form of the Law Society, the governing body of the solicitors’ branch and profession, responsibility for handling millions of pounds worth of taxpayers’ money, which were provided to private practitioners to give these services,.
Michael Zander:
Seeing the very exciting development in those days during 1965, 66, 67 of the OEO program and there was some very great excitement here about the potential for legal services provided by the public purse through the salaried sector, I became convinced that we needed something like that in England. In fact, I was the first person to write about it in a journal called Socialist Commentary. I wrote a very short article in which I was discussing legal services for the poor. I think the main burden of the article was to suggest that we should add to the English system using private practitioners an additional ingredient of salaried lawyers placed in areas where there were no private practitioners or where private practitioners for one reason or another didn’t want to do Legal Aid work. That was I think 1966 or 1967. I could check that date of course. The next thing that happened was the Society of Labour Lawyers, meaning lawyers attached to the Labour Party or supporting the Labour Party, set up a subcommittee.
Clint Bamberger:
They really are the more progressive lawyers, is that a fair term?
Michael Zander:
Well, one would like to think so yes. They weren’t progressive in every respect, but anyway. It was the Labour Party’s legal division if you like, the lawyers’ division of the Labour Party. They set up a subcommittee under a very outstanding judge, one of the very few high court judges that were of any liberal disposition. He was Morris Finer. I think at that time actually he hadn’t yet been appointed judge, he was still a senior practitioner.
Clint Bamberger:
What was his last name?
Michael Zander:
Finer, Morris Finer, he was the chairman of that committee. I was a member of the committee and we worked on the problem of what to do about the Legal Aid system, what was wrong with the Legal Aid system. I wrote the report, which was sort of a 50 or 60 page pamphlet. It was called Legal Services for the Community or some such, published in 1968. The main recommendation of that report was we should set up neighborhood law firms on the American model. We lifted our main recommendation straight from the experience of the OEO and that was very much due to my energy and argument swaying my colleagues on the committee. They hadn’t been over here. I had and I reported and they liked the idea. They thought it sounded interesting. We came up with a draft report in August of 1968, which we presented to a very bewildered group of about 100 or more lawyers who came to the annual Oxford conference …
Clint Bamberger:
Why do you say bewildered?
Michael Zander:
Because they were totally amazed by this idea. When it was first put forward I think Morris Finer probably introduced it. I can’t now remember exactly the sequence of events over that weekend. It was a Friday to a Sunday conference.
Clint Bamberger:
Was this a group of Labour Party lawyers?
Michael Zander:
This was the annual meeting of the Labour Party lawyers with to some extent wives. But basically it was the lawyers coming for a two or three day seminar, Friday evening, Saturday, Sunday. The subject for the whole weekend was our draft report. The draft report had not yet been printed but we were presenting our conclusions. The main conclusion was that we needed a salaried sector to add to the private lawyer sector. All the lawyers present were practitioners, many of them of course involved in the Legal Aid practice. Some were academics and some were students. But mostly they were practitioners.
Michael Zander:
They were very very strongly resistant at the outset to the idea of having a salaried sector. They didn’t like the sound of state salaried lawyers. It had entirely the wrong ring to them as an invasion really of the concept of the independence of the lawyers. That was always the cry, that you can’t have independent lawyers acting for poor people if they’re paid by the state. We argued partly on the basis of the American model and partly on the basis on other models — for example the independence of the judiciary. It is perfectly well accepted that judges are paid out of the state. So we argued if judges can be independent although they’re state salaried then why not lawyers? Anyway, by the end of the weekend two things had happened. One, the Law Society, which was represented at that conference by the leading figure in the Law Society, the official, with responsibility for legal services and legal aid-
Clint Bamberger:
The Law Society is the association of the solicitors.
Michael Zander:
The solicitors branch of the legal profession. The solicitors branch was the branch that had the handling of the Legal Aid fund. So they had the statutory responsibility for disposing of millions of pounds worth of taxpayers money, and they did it very conscientiously there’s nothing, there was no criticism made of the way in which they were doing it. They were doing it in a careful and sensible way. What we were saying was we need even more, not so much even more money though certainly our recommendations would have involved more expenditure of public monies, but a different concept.
Michael Zander:
The Law Society said no way. Absolutely no. Mr. Steven [Pollock?] was the gentleman who came and presented the Law Society’s case, passionately opposing the whole idea of state salaried lawyers. The Law Society, the official agency of the legal profession involved in legal services, said no they didn’t want anything to do with a state salaried sector in development of legal services. But the conference, the ordinary membership of the society of Labour Party lawyers having initially been very reluctant on the Friday and during the Saturday, gradually were persuaded. By the end of the Sunday — it was a very exciting weekend — there was this dramatic shift. The pendulum swung, and this body of practitioners were persuaded that this might be an interesting idea worth supporting, and that they should support it and they did support it. So, the subcommittee of which I was a member, the Finer committee, was sent away to tidy up the report and finish it off and improve it, and basically to go ahead with this idea which had received overwhelming endorsement from the meeting. Although the idea was still strongly opposed by the Law Society, and that’s what we then did. We published I think in December of 1968. Legal Services for All was the title.
Clint Bamberger:
I don’t want to interrupt your train of thought, but at some point would you say what you thought, why did you want to add salaried lawyers to a system which I think was working pretty well then in terms of providing service.
Michael Zander:
Yes. The system was working alright. What we identified as the main weakness was that there were geographical areas where there were no lawyers at all, absolutely no private practitioners. So what were the people in that neighborhood supposed to do for legal services? The answer was they had nothing.
Clint Bamberger:
It was like the US’s first Judicare experiment which was in the rural counties of Wisconsin where there were few people and few lawyers.
Michael Zander:
Yes. I mean we didn’t think of it particularly for rural areas but we certainly assumed the rural areas would be amongst the categories of places where there would be a great shortage of lawyers. But I think actually our main focus was certain areas of London and other big cities where we plotted the existing practices and we discovered that there were some areas where there were lawyers clustered in great numbers and other areas where there was a complete desert. There were no lawyers at all. And these were areas not just residential area but also the High Street [Main Street] where there might be other facilities but no lawyers. So, we thought, in order to fill that gap you need to have some method for putting the lawyers in place.
Clint Bamberger:
it was kind of a quantitative judgment rather than a qualitative one.
Michael Zander:
Yes, partly that. But also that there were law areas where there were lawyers who were not willing to do Legal Aid work, or maybe were not doing it with as much expertise as others. We didn’t emphasize that because we didn’t want to offend people. We knew that the concept of state salaried lawyers would already be so deeply offensive that it wasn’t necessary to antagonize people even more by saying, maybe expert poverty lawyers would do the work even better. We played that down though I think it was also a minor theme. But the main theme was that in certain areas there simply are no lawyers providing these services at all.
Michael Zander:
So, in December 68, we launched this program. What was very interesting was the speed with which the Law Society changed its mind. The Labour Party was in government. I think the Law Society feared that the coming general election would again be won by the Labour Party, which would put in place some kind of a scheme for state salaried lawyers excluding the Law Society. So, within a matter of a few months, the Law Society came forth with a different idea. They said, we like the idea of law centers and we wan to run them. We want to be given the power to run law centers, which was a 180 degree switch to official policy within a matter of really a few weeks, or a few months anyway. The reason was clear, they anticipated a Labour government implementing some kind of proposals based on our recommendations which would exclude the Law Society. They made a power bid as it were for the whole idea and said, “We’ll take this over so that it’s safe in our hands.”
Michael Zander:
Then of course what happened was the Conservatives won the election in 1970. Mrs. Thatcher was returned, or came to power in 1969. So that fear that the Law Society had of a Labour government swooping in to do all these terrible things receded. But the Conservatives came in and they decided themselves to do something like this. The 1972 Legal Aid Act, in fact gave the Law Society the power to run law centers and that became part of the statutory armory of legal services.
Michael Zander:
But in fact, although that statute was put on the books in 1972, it never became effective. No money was ever given to the Law Society or to anyone, to run Law Society law centers. What did happen was that, in 1970, which was before that, the first law center was set up in a butcher’s shop in North Kensington. The North Kensington Law Center became the model for the law center movement based on the American model. For a year or two it was the only one. It was funded partly by charitable funds, partly by Legal Aid monies that they were able to apply for, ordinary Legal Aid for their clients. They got money from various sources. Mainly from the local authority.
Clint Bamberger:
But there wasn’t central government money for the purpose of the center, except the government money that came in the ordinary course of Legal Aid work.
Michael Zander:
That’s right. So, the money came partly from the local authority, that means local government money not central government money, and charitable funds and foundation funds and miscellaneous funds were collected to set up this idea of salaried lawyers, poverty lawyers.
Clint Bamberger:
What was the relationship between North Kensington and the legal advice centers and the use of non-professionals to provide legal services?
Michael Zander:
Yes, the North Kensington center was the model for all the subsequent law centers. There are now about 50 of them. They got up to about 50 very quickly and then the number didn’t really increase.
Clint Bamberger:
In London?
Michael Zander:
No all over, there are several of them in London but several of them dotted around all over the place.
Clint Bamberger:
But in England?
Michael Zander:
They’re all in England, yes. Most of them have operated through using both lawyers and non lawyers as advisors. And all of them run by local management committees. So there’s no national management structure. There is a national structure, but it’s not a management structure. A management structure for these centers is always local and the funding is always based on local funding drawn from the local government not from central government.
Michael Zander:
There is a little bit of central funding money fed in by way of top up, but the setting up of these law centers has been based on some local initiative, by local lawyers and local other people who all get together and decide we want a law center. Then they get the local authority to fund it together with whatever other monies they can raise. The funding has always been a problem. The Law Society, of course, is now excluded again. They were not part of the North Kensington operation. They were not part of the setting up of any of these law centers.
Clint Bamberger:
Were the Labour Lawyers as an organization involved in North Kensington?
Michael Zander:
Not directly no. They initiated the idea. Whatever the make up of the local teams as it were that initiated the exercise varied. Often there were Labour Party lawyers involved but sometimes there were other people.
Clint Bamberger:
The Law Society you said-
Michael Zander:
It had cross party support. Conservatives supported it and the Conservative government was in power. They were not opposed to it. In fact I remember I was present at the opening of the North Kensington Center in this little butcher shop. Peter Campbell was the solicitor in charge. He incidentally is still working in the law center today. That was 1970. So nearly 30 years later he’s still in the movement. But the people who were present included the president of the Law Society, the outgoing Attorney General that was the Labour Attorney General Elwyn Jones, who subsequently became the Lord Chancellor in the next Labour government. Also there was Edward Garnier, who was the then-Solicitor General, so a prominent member of the Conservative party. The concept had cross party support. Very quickly the law center established a good reputation with the press and people liked the whole idea. But the Law Society was in a very ambivalent position because they were having to fend off the opposition of local private practitioners. What they were upset about was that they would lose Legal Aid work, ordinary straight forward criminal and civil Legal Aid work, which would be siphoned off by the law center.
Michael Zander:
It didn’t happen in North Kensington, but subsequently in 1971, 72, 73, every time that a local group said that we want a law center with salaried lawyers, the local practitioners, if there were any, banded together to oppose it. They said, “No, we don’t want a law center. We’re the local practitioners. We’re the local people. We can look after the needs of the local people. So there was a battle. The issue on which the battle focused was that, in order to provide legal services free of charge, the lawyers needed a waiver from the practice rules which said you can’t under cut your competitors. Of course, free services, which is what the law center was able to offer, was a devastating form of under cutting. So the private practitioners all, in order to be allowed to do that work, had to get a waiver from the Law Society. So, the local Law Society and the local practitioners said to the central Law Society in London, “Don’t give them a waiver.”
Michael Zander:
The issue was joined finally in a case of Hillingdon. Hillingdon was the high noon as it were of the drama that was being played out between the law centers on the one hand and the private practitioners on the other hand. I was involved in those negotiations over the Hillingdon waiver. What we put to the Law Society on behalf of the law center movement was that it was totally inappropriate for the local practitioners to claim to be judges of local need, of unmet legal services. They were simply not fit to make that decision because of the clear conflict of interest situation. In purporting to say there is no need, no unmet need in legal services ….
Clint Bamberger:
The conflict was, I think one thing we need to make clear, in the United States when we speak of Legal Aid we mean civil. But of course in the UK Legal Aid is civil and criminal, and the conflict, I take it, arises because they could earn fees from the government Legal Aid pot for providing these services ….
Michael Zander:
Exactly.
Clint Bamberger:
… and this competition of who’s going to provide it free was obviously under cutting.
Michael Zander:
Under cutting them, and then they would lose a lot of work. Understandably they were apprehensive about that, very upset about it, didn’t welcome the advent this coo-coo in the nest, the law center. So, Hillingdon was the ground on which the battle was finally filled up and fought out. We formed a negotiation committee with the Law Society to try and regularize the position. We put to them the idea that the concept of unmet need, the identification of need should be left to the local funders. In other words, if there were people locally, the local authority in particular, who were prepared to put up money to have a law center in that place, and there were lawyers who were prepared to work there, then the Law Society should not stand in their way, and that provided they were working ethically …
Clint Bamberger:
The local public funders.
Michael Zander:
The local public funders, or any other funders, whatever funding was available. If there was enough funding for a law center then there shouldn’t be a stop put on that by local practitioners on the grounds that they were able to handle the need. The quid pro quo for that was that the law center would send to the local practitioners ordinary cases on which the local practitioners could go on ordinary Legal Aid fees. So, ordinary criminal Legal Aid work and ordinary matrimonial work, and ordinary personal injury work, which were the three main staple diets of ordinary legal aid. Criminal defense work, personal injury work and matrimonial work should, in the normal course of events, be sent to local practitioners if there were any local practitioners. Of course if there were none then that wouldn’t arise. But there would be an understanding that those cases would go to the private profession. The law center would do the work that local practitioners were not able to do, such as housing work, welfare work, immigration work. The law center would do all sorts of legal work that was not being handled by the private profession.
Clint Bamberger:
Why would the private practitioners not be doing housing work?
Michael Zander:
Because there wasn’t enough money in it, or for one reason or another that work wasn’t coming to them.
Clint Bamberger:
The Legal Aid fee for that work wasn’t sufficient were as in what you call the ordinary the fee matched the time spent better.
Michael Zander:
Central government funded Legal Aid work wasn’t actually completely excluded for that category of work but actually in practice there was virtually none of it being done via legal aid. There were virtually no private practitioners who knew anything about representing tenants or very very few of them. For welfare work, almost nobody. You could go up and down the country there were virtually no lawyers in private practice who knew anything at all about the legal problems of the poor in the welfare system. There were some people who were advising but they were not lawyers.
Michael Zander:
So the idea became — and this was also already mentioned in “Justice for All”, the Society of Labour Lawyers pamphlet — that we identify the need for law centers, that they would be able to do work. If there was specialist legal work for the poor which was not being done by the private profession then it could be done by the law centers. That came to be absolutely crucial. So, as a result of that agreement that, the concordat that was arrived at as a result of the Hillingdon battle, a new modus vivendi developed, a new peaceful and harmonious relationship developed between law centers on the one hand and private practitioners on the other.
Michael Zander:
The private practitioners realized pretty quickly that they were getting a lot of work that they previously wouldn’t have gotten. Work was coming into the law center because the law center was attractive to a new category of client who was apprehensive about lawyers and didn’t want to go into a solicitors’ office. This new category of client was prepared to go into the more congenial and more user friendly facility that was being run by the law center. Lawyers in jeans, providing services in the evening, open at the weekends, cup of tea available for the client, you could come in with your little kids and a creche or somewhere where the kids could be looked after while the parents were being seen to by the lawyers and so on. A more informal way of presenting, of providing legal services. So clients came in. Then from the private practitioners point of view the attraction was, well the clients come in to the law center, which then sends them off to us if the work is mainstream Legal Aid work. Pretty soon we’ve got the ironical situation after all the fuss and bother of the 71, 72, 73 era, where local private practitioners were strongly supporting the development of law centers where previously they absolutely opposed them. Since then there’s been no problem. These battles of the early 70s which I’m remembering now really faded away completely.
Clint Bamberger:
Would you say something about how the central government’s role shifted over those years.
Michael Zander:
Well the government was actually at that time developing something which was very important called the Legal Advice and Assistance Scheme. That was a concept that was actually pioneered by Steven Pollock, the same gentleman who so strongly opposed law centers. He was the man who conceived of the idea of legal advice assistance which was an add-on to the existing system of Legal Aid for civil work and Legal Aid for criminal work. Both of those schemes were court oriented. Defense work for criminal cases and civil plaintiff and defense work for ordinary civil litigation.
Michael Zander:
What Steven Pollock invented, as it were, and then put to the government and the government adopted, was an additional scheme called Advice and Assistance, otherwise known as Green Form because you applied for it on a green form. The lawyer could provide the client with any kind of assistance short of advocacy. It might be advice on a document. It might be the drafting of a document. It might be negotiations. It might be making a few telephone calls. Any kind of legal services which were short of actual advocacy in court cases. That was put in place on a statutory basis in 1972. It applied to both civil and criminal cases. The lawyer would get remuneration for work that was done for the client.
Michael Zander:
The client would come in and present himself. There was a very rudimentary means test. Then the client would be allowed to have two hours worth of work done for him without the lawyer having to get any permission from anyone. After the lawyer had done about two hours worth of work he had to get permission to carry on. You could get permission to do literally hundreds of hours of work. It wasn’t limited to two hours. The two hour point was just the initial basis for the service which the lawyer didn’t need to get permission to do. After that he had to get permission from the Law Society. It was very easy to get that permission, and it still is very easy to get permission. You can get it even over the telephone. This service now costs the taxpayer currently something in the order of a hundred million pounds a year. It turned into something very major. It built up gradually of course. But most ordinary firms of practitioners do run a legal advice and assistance service on top of or in addition to, and in fact as a way into the main Legal Aid scheme, which has always been geared to actual litigation in civil and criminal cases.
Clint Bamberger:
Has the government’s position with respect to supporting the Legal Aid centers changed over the years?
Michael Zander:
I wouldn’t say it has changed. Law centers as I say became absolutely acceptable by the middle of the 1970s. Everybody agreed they were a good idea. They were playing a useful role. They were filling a gap.
Clint Bamberger:
Including a Conservative central government?
Michael Zander:
Including a Conservative central government. That position has never changed. So there hasn’t been any problem about getting government to support the sense that this is a useful part of the system. On the other hand there has been a terrible difficulty in getting substantial funding and the funding level from central government has always been negligible. So, the total budget of all the law centers put together, the 50 or so law centers — I can’t give you the figure for that total budget at the moment — only a small proportion of that is born by the central Legal Aid fund. That has not varied as between Labour and Conservative governments. Whether it’s Tory or Labour governments they’ve been very reluctant to put a lot of money into law centers. They’ve been willing to put a little bit of money, a few million pounds, but really a drop in the bucket, because almost all the money for Legal Aid has continued to go all these years, still does, to private practitioners. Now at the moment, 1998-99, we’re in the middle of a major reform of legal aid. The previous major reform was in 1988, the setting up of the Legal Aid Board. That was a very important moment because Legal Aid was taken away from the Law Society and put instead in the hands of a Legal Aid Board. It’s a statutory body. Of course the previous system was also statutory.
Clint Bamberger:
Would you say a little bit about what the role of the Law Society was. The Law Society received the money from the central government …
Michael Zander:
Yes.
Clint Bamberger:
… and you speak of permission, which of course is a foreign concept to Americans. In the US, if a Legal Aid client walks into a Legal Aid office and they’re financially eligible, then they are provided service.
Michael Zander:
Right. The method of deciding whether somebody should or should not get Legal Aid from a private practitioner was different from the law center. In order to get Legal Aid from a private practitioner, you first had to establish that you were entitled on statutory means test. That was administered not by the lawyers, not by the Law Society, but by the Social Security people who were the experts in means testing. This was for civil cases, not in criminal cases. Criminal cases were different. In civil cases the means testing was done on the basis of an elaborate form that you had to fill out which was then submitted to the Social Security means testing people. They would decide if you qualified or didn’t qualify.
Michael Zander:
On the criminal side, the means test was done by court clerks. In fact it was done in a very inefficient way because the court clerks had no skill, no time, no interest and it was more or less rubber stamping. If you came along filled out the form and it seemed as if you were eligible, you were approved with virtually no further inquiry. For many many years, in fact in several decades, public money was being spent for criminal Legal Aid with virtually no scrutiny at all. That has now changed recently so that it’s now much more difficult to get criminal legal aid. You have to come along with evidence of poverty and you haven’t got a job or you’ve got a very low paying job. That’s the means test side.
Michael Zander:
On the civil side, then the other side of it you had to establish was that you had a reasonable prospect of success, you had a reasonable case, and that it was in the public interest that your case should be funded by the taxpayer.
Clint Bamberger:
Who made that judgment?
Michael Zander:
That judgment was made by Legal Aid officials who were lawyers. If they couldn’t decide it because it was a bit complicated or a bit tricky, they would refer it to a committee of practitioners. These were practitioners who would meet once a week, or once every two weeks. They’d have a whole bundle of files and they’d have to make a decision, yes or no. Is this a reasonable case based on their assessment of the application? There would maybe be arguments by the lawyer saying why this case was a good case. Maybe sometimes even the opinion of the barrister was sought on whether this is a winnable case on the law, so they didn’t have to make a judgment both on the fact and on the law, and you had to have both.
Michael Zander:
I was involved in one great case once. I’m not a practitioner and I don’t usually take private cases. But I was involved in this case where my client was wanting to sue a barrister for negligence, which hadn’t been done for about 150 years. The old cases said it couldn’t done, there was no way could we do so, because the barrister has immunity from negligence liability. We were ultimately given leave to appeal to the House of Lords in its judicial capacity. But we were refused Legal Aid in order to mount that appeal to the House of Lords because on the facts it was a very poor case. In fact it was a hopeless case on the facts. My client had this very interesting point of law. We were refused Legal Aid to appeal to the House of Lords, although the House of Lords had given us leave to appeal on the point of law. We then challenged the aid decision and we were given Legal Aid to challenge the refusal of legal aid. It was all very amusing. They were right to refuse us Legal Aid for the appeal because on the facts we were not going to win, even though on the law we might win. Then we challenged the refusal. They were right to give us that Legal Aid to challenge the refusal. The case actually went ahead because the lawyer argued the case free of charge. He gave his services pro-bono.. So we had a full argument in the House of Lords.
Clint Bamberger:
You were talking about the 1988 reform.
Michael Zander:
So the government changed the rules about the running of the Legal Aid system by taking the whole Legal Aid system away from the Law Society and putting it in the hands of a new body, the Legal Aid Board. The Legal Aid Board has run the system now for the last 10-12 years. This has been a very, very dramatic and traumatic development from a certain point of view. The main significance of the Legal Aid Board taking the whole thing over is that they have hugely tightened up on efficiency. They have become conscious of the expenditure of public money in a way that the Law Society never was. That has ultimately resulted in now in a completely different concept, which is the franchising of lawyers firms to provide legal services out of public money. So out of the 11,000 firms of solicitors, about 2,000 currently have a franchise from the Legal Aid Board. Now in order to get franchise you have to establish yourself as a firm that is competent and efficient, and doing all the paperwork properly, and able to do the work that you purport to do.
Clint Bamberger:
That means competence in this field though …
Michael Zander:
Competence in field of Legal Aid yes. Although I think it’s probably the case that the Board is more keen on the paperwork then they are on actual competency in what’s on the paper as it were. In other words, its got to look right.
Michael Zander:
The enormously important and from my point of view very damaging development, and this was totally predicted by many including myself, is that the government have now decided that as from the date which has already been fixed — and it depends on the category of work — only lawyers who have a franchise will be able to provide the services, or rather only people and outfits that have the franchise.
Michael Zander:
I say that because some of them can be non-lawyers, and this is a very interesting development that the Legal Aid Board has rightly pioneered. They provide Legal Aid money, legal services money for non-lawyers, citizens advice bureaus, housing advice agencies and others to provide legal services. In other words they’re not lawyers at all. So the new concept of franchising the legal services will include some services that are not run by lawyers but nevertheless have Legal Aid money. The new government under Lord Irvine — Lord Irvine is now the Lord Chancellor responsible for all this funding for legal services — is very keen on developing what he calls the [inaudible] and that’s now called the Community Legal Service Concept. Law centers are certainly going to benefit from that because we’re going to get more law centers and other kinds of legal services. I mean there will be mobile legal services in rural areas. There’ll be kiosks available. There will be IT services. There will be grants provided for clients who are bedridden or housebound. There will be all sorts of new developments.
Clint Bamberger:
By IT you mean …
Michael Zander:
Well there will be various kinds of information technology developments. I mean these things have not, I mean we don’t know exactly what they’re going to be. What we know is that the government put forward the basic idea of a community legal service and they’re going to publish a white paper on the subject I think in January, this month, to give more chapter and verse on these ideas. So you’ll see more what’s intended. But it’s clear that the government is committed to the idea of trying to develop a community legal service which is on broader lines than the previous service development over the last 30-50 years, first through the Law Society and now more recently through the Legal Aid Board.
Michael Zander:
But on the one hand it’s developing outwards in terms of services provided. On the other hand it’s contracting drastically the number of providers. Previously there were 10, 11,000. Although most of them didn’t do very much legal aid, huge numbers did a little bit of Legal Aid work and a small number of firms did a lot. Now what we’re going to have is say two or three thousand firms doing all the work. I suspect that in the long run there’s going to be fierce price competition. There’s going to be competitive tendering for Legal Aid work. You’re going to be … what you’re going to have to do is make a contract with the Legal Aid Board saying I will provide or my firm will provide such and such services over the next year. We’re going to run a hundred personal injury cases. We’re going to do five hundred matrimonial cases. We’re going to do two hundred and fifty criminal defenses or whatever it is. Then there will be money on the table to provide those services.
Michael Zander:
Then of course the question will be, well are you going to provide those services? Do the clients come in? Do more clients come in? Do fewer clients come in? What happens if your budget runs out? What happens to the client for whom it’s not convenient to travel a hundred miles or fifty miles or whatever it is to go to the nearest lawyer who is able to provide these franchise services? We’re in new, very interesting, very major major new developments.
Clint Bamberger:
Well Micheal let me just go back. One of the ideas of having the salaried staff attorneys was that they would become specialists at what we tended to call poverty law, and would develop theories of law, would be very effective in acting in concert very often to stop pervasive practices that were illegal against the poor and to institute new legal remedies for the poor. Have the law centers formed any sort of a associationorr do they act in concert on such issues?
Michael Zander:
They do up to a point, but nothing like to the extent that happens in the United States. The idea of the strategic lawyering, which was developed partly in Washington, and as part of the OEO movement, never really took off in the same way in England. It was mentioned in “Legal Services for All” as a possible development, as something that might happen. Then when North Kensington was set up it was really the only law center. There wasn’t an opportunity for banding together with others. There were no others. Gradually more and more law centers were set up, so that ultimately there were about 40 or 50, and there there was the possibility of course of developing that sort of concept, and they tried a bit.
Michael Zander:
I think the reason it didn’t really take off in a major way… well there are lots of reasons. One of them is that test case litigation is not as familiar a concept as it is in the United States. We simply don’t use the courts to the same extent to develop the law. If people want changes in the law they tend more to go via the legislature than through the courts. Secondly because of local funding, and each law center was on its own really in terms of its funding, the idea of a national network was more difficult to organize. There was an organization, but I think they concerned themselves much more with organizational matters than with these notions of trying to develop specialist skills or specialist ways of lawyering for the court.
Michael Zander:
Anyway, it never really got off the ground to the same extent. There are very few test cases for example in the 30 years now since North Kensington began — 1970 to 1999, so 29 years. I can count on the fingers of one hand or two hands maybe the number of test cases that have been run by the law centers of any consequence. What they have done, I think this is more in this line, is develop lawyering for local groups, not so much on a national basis, but certainly on a local basis. So, the local talents. In an area where there’s a lot of public housing, the law center would be the natural focus for representing the tenants against the local authority. Of course the local authority was funding the law center and at the same time being attacked by the law center for the local authority’s very poor quality public housing. In that sense, strategic lawyering did occur but it wasn’t much used for test case litigation.
Clint Bamberger:
What percentage of solicitors would you say are involved in legal aid?
Michael Zander:
Well, there’s no way of assessing that. What we know is the number of firms not the number of solicitors. What we know from the figures is that, as I say, it’s very thinly spread right through the profession. Of course the big firms do no Legal Aid work. You’ve got the big city firms with hundreds of lawyers. They never ever see a Legal Aid client ever. They haven’t developed a tradition, or at least not until very recently. Very recently it has begun to change. Pro bono work is beginning to come in as something that the big firms will do. The American firms were doing it 20, 30 years ago. In fact I tried to argue, and I wrote at the time in the 70s, that the big firms in England should copy the very good example of the big American firms to do some pro bono work. It fell like a lead balloon, there was absolutely no interest at all. Now there is an interest, they’re beginning to do it. The big firms still do no Legal Aid work. They do now some pro bono work off their own back as it were.
Michael Zander:
Ordinary firms of solicitors, which are mainly small firms. Almost all firms of the 11,000 firms. The average would be a one, two, three, four partner firm. That’s the normal sized firm in terms of numbers of partners. They would all do some Legal Aid work. So until this new rule that only a franchised firm will be able to do Legal Aid work, it’s been very widely and very thinly spread so easily accessible to the public because there’s going to be a private practitioner somewhere near you in most areas. But that won’t be the case in the future. It’ll be the specialists and larger firms. Smaller firms will amalgamate, I imagine, to do Legal Aid work on a larger and larger scale.
Clint Bamberger:
You’re concluding that the widespread of Legal Aid among the solicitors creates a constituency to support the government’s funding of support for legal aid?
Michael Zander:
Absolutely yes.
Clint Bamberger:
See I think that’s one of the things that we miss. I think the American profession is very supportive of legal aid. I think that there were times that that support was a bit thin and might have been stronger if they had more involvement in it and, not to be crass, but a financial stake.
Michael Zander:
A stake. Of course. Very important. The legal profession on both sides, the bar does an enormous amount of Legal Aid work as well, it’s not just a solicitors’ profession. Both sides of the profession have been very supportive of legal aid, always, and not least of course they have a self interest. Now one of the problems with that self interest is when they oppose government plans. For example, with the present government plans to restrict Legal Aid work to franchised firms, the lay press is inclined to say, “You’re opposing those reforms because they affect you in the pocket.” It’s very difficult then for the legal profession to say, “Well, that’s true. But we’re also opposing these reforms because we think it’s bad for the general public, for the body of clients.” It does cut both ways. If you have a financial interest it makes you an interested party in proposing and opposing government reforms.
Clint Bamberger:
Has an expertise in quote, poverty law, developed in the UK?
Michael Zander:
I would say only in the law centers, depending by what you mean by poverty law. If you mean law that only affects the poor, then I would say that law centers are the main experts. If you mean poverty law in the sense of legal problems which affect everybody, as for example criminal or personal injury work or matrimonial work, all sections of the community are involved in those activities. As far as criminal work it’s mainly the poor.
Clint Bamberger:
Let’s take housing. It seems to me that housing problems for the poor are very different from the housing problems of the more affluent.
Michael Zander:
My sense is that the law centers have much more expertise in those areas of lawyering than the private profession, much more. What was true in 1970 when the first law center was set up and there was virtually no expertise in those areas in the private profession is still I think true today. So with welfare work equally. There is very little knowledge of that range of problems in the private profession. Whereas the law centers, that’s mainly what they do.
Clint Bamberger:
Michael would you like to talk some more about the legal system and what you’re doing now?
Michael Zander:
Well, let me just say one word about my observation about the American system. I came to know many of the people who were involved in it and I admire the work that they’re doing enormously. But what struck me so strongly was the absolute commitment in the American movement … What puzzled me was the extent to which they were prepared to cut out the private profession. The movement was not really interested it seemed to me, or not sufficiently interested, in the contribution which the private profession could make. On the other hand we in England have the situation where almost all legal services for the poor were being handled by private practitioners. So I was mystified by the opposition in the US.
Michael Zander:
Of course the opposition was based in the US I think on the feeling that the private profession wouldn’t treat the problems of the poor with sufficient respect and sufficient integrity and sufficient expertise. I thought that was a wrong judgment. In so far as the legal problems of the poor are exactly the same as the legal problems of the middle classes, and they are in certain major areas of traditional legal work. I thought that the English experience suggested to me that it seemed a great pity to throw away the contribution which private practitioners could make and would be perfectly prepared to make, and glad to make in fact if they were paid for it.
Michael Zander:
So the crux on the matter was could they be paid for it. So I was occasionally involved. Those American journal articles were mainly designed to support those who are arguing and who are trying to defeat the arguments of those who are contending this was not a good idea. The Judicare model was something which never really took off as far as I can see apart from in Wisconsin. But it ought to be noted as an important part of the whole movement in legal services, just as in England we needed to add the American perspective through the salaried model.
Clint Bamberger:
I think your perception is correct and I think we were wrong. That’s my own personal view. I think that it’s a subject of a longer conversation because I think there were lots of factors that brought about that kind of exclusivity of the salaried attorneys. I think we lost by that because I think if we had involved the private bar much more then we would have had, as we said before, a kind of a constituency that would have been more strongly supportive of legal services. But that can be a conversation some other time.
Michael Zander:
For another day.
Clint Bamberger:
Is there something more?
Michael Zander:
No, I think the only other thing I would say is in regard to what’s happening in England is that we’re absolutely at the beginning of a new era. I mean we’ve had several chapters and we’re now at the beginning of a new chapter. I’m worried about it frankly. I’m concerned. We have enormous per capita expenditure I think the highest in the world for legal services. The current bill to the taxpayer is something like 1.3 billion pounds. So we’re talking about in dollar terms something like 2.3 billion dollars. Of course that includes the services which here would be funded out of the public defense. We’re beginning also to experiment with public defenders. That’s one of the new developments that’s going to happen.
Clint Bamberger:
There are no salaried public defenders.
Michael Zander:
There are no public defender salaried services at all. We’re about to open one in Scotland. The plan for the English system includes experiments with public defenders which of course the private profession is very apprehensive about and strongly opposes, of course. We’ll see what happens. I’m not opposing it as an experiment, but we’ll see.
Clint Bamberger:
Well Michael thank you very much, I’m so pleased you were here in the United States and we had a chance to do this. If we don’t do it here again, you get yourself a video in London and speak to us. I hope you have… This is your first visit to the library …
Michael Zander:
I’m very impressed with the library, I’m delighted that it’s been established I wish it well, and it should be a major major source of enlightenment and knowledge …
Clint Bamberger:
Well I hope you’ll remember to send us copies of your articles.
Michael Zander:
I will do so.
Clint Bamberger:
Even though we only have three of your books.
Michael Zander:
Out of date too.
Clint Bamberger:
Alright, thank you Micheal.
Michael Zander:
Thank you Clint.
END