Law Centres Network

On 6 November 2020, at the Law Centres Network annual general meeting, we had the pleasure of hearing Prof Michael Zander QC speak about the early history of Law Centres in the UK. He should know: he was the one who 'imported' the idea from the United States, as he explains below and in the recording above. 

Michael Zander QC was also legal correspondent for The Guardian between 1963-1988 and lectured in law at the London School of Economics between 1963-1998. In 2015 he was awarded the Halsbury Legal Award for Lifetime Contribution.

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LAW CENTRES – THE EARLY HISTORY

Michael Zander (MZ)^[1]

• September 1966, MZ’s article in Socialist Commentary entitled ‘Poverty and the Law’ proposed adoption in this country of the neighbourhood law firm concept developed in the U.S. as part of President Johnson’s War on Poverty.

‘The Americans seem to have discovered [an approach] which would be worth trying here. This is the institution of the neighbourhood law firm... The essence of the method is to set up an office in a poor district staffed by lawyers of more than average ability and financed by public funds. The lawyers are full-time practitioners able through public finance to offer their services free of charge to clients unable to pay... The service is normally supervised by a governing body composed of various elements, including residents of the areas and representatives of the groups served... One of the essential features of the scheme is that the lawyers involved do not follow the hallowed professional principle of waiting for work to come to them. They try to educate the community about their legal rights... The private sector might lose some of its legal aid work, but it would retain all clients able to pay fees, including those now given partial legal aid. The object of the scheme would be to help those at the bottom of the social scale for whom the present system in practice makes inadequate provision. By such means the state could create a greater measure of real equality before the law. By telling the poor man of his legal rights and by acting to vindicate them, it could also help to give him a greater sense of self-respect and thereby do something to break the chains of his poverty.’

• January 1967, Society of Labour Lawyers conference on problems of the legal profession led to the setting up of a sub-committee chaired by Morris Finer QC ‘to examine the present provision  of legal aid and other advisory services to the community, to consider possible ways of improving such services and to make recommendations’  (MZ a member of the sub-committee.)

• February 1967, MZ invited to discuss the idea by the Lord Chancellor’s Legal Aid Advisory Committee.

• June 1967, the Lord Chancellor’s Legal Aid Advisory Committee’s annual report rejects the idea: ‘We are not satisfied of the need for the radical and expensive alteration in the Legal Advice scheme which [Mr Zander] advocates under the Neighbourhood scheme... we do not consider that the case he advocates has been made out.’^[2] The Legal Aid Advisory Committee repeated its negative reaction to neighbourhood law firms in its report the following year, published in October 1968.

• August 1968, the Society of Labour Lawyers sub-committee presented its draft report (drafted by MZ) to the Society’s  weekend summer conference in Oxford. Its chief recommendation was local legal centres staffed by salaried lawyers to be established in poverty areas, operating alongside and to supplement the private profession. To be sited in areas where there were few local solicitors. The new service should be run by a new national management committee consisting of representatives of the legal profession, citizens advice bureaux, the lawyers working in publicly funded legal services and their clients. There should be committees at the local level consisting of representatives of the profession, the centres and the local community. Some 150 persons attended the conference.

‘In the early part of the week-end conference participants showed some unease at the concept of a state salaried sector in legal services. . . But as the weekend event went on the mood changed first from doubt to tentative support and finally to strong endorsement of the idea. . . By the end of the conference the only sour note was that of the Law Society.’^[3]

The Law Society representative, Mr Seton Pollock, delivered a speech from a prepared text.

‘In a lengthy address (in mimeographed form it runs to nearly seventeen pages) there was not one sentence that indicated support of any kind for the concept of local legal centres as proposed in the draft report.’^[4]

• October 1968, the incoming President of the Law Society, Mr H.E. Sargant at the Society’s Annual Conference spoke about the Labour Lawyers’ proposal:

‘Such a plan would be the thin edge of the wedge. It would mean a loss of the independence of the profession and could lead to a total nationalised legal service.’^[5]

The Law Society’s attitude contrasted with that the American Bar Association. In February 1965 the ABA House of Delegates at the Association’s annual meeting passed, without a single dissenting vote, a resolution affirming the ABA’s support for the then new idea of federally funded salaried lawyers in poverty areas.

• December 1968, the Society of Labour Lawyers’ pamphlet Justice for All was published basically unchanged.^[6]

• July 1969, the Law Society announced a new policy - to run state salaried lawyers itself as part of the legal aid scheme! (The legal aid system was run at the time by the Law Society.) It recommended that the duties of what it had proposed as a new Advisory Liaison Office should include:

 ‘. . . (d) to maintain, where this is found to be required, permanent advisory centres in particular districts to give advice and to perform services similar to those falling within the category of advice and assistance . . .

(e) to set up permanent local centres similar to those maintained during the early days of legal aid (which dealt with the special problems of divorce) but adapted to the general needs of the district including, if necessary, representation in magistrates’ courts and county courts and the conduct of litigation so far as this cannot be absorbed by solicitors’ firms.’^[7]

I wrote:

‘No explanation has ever been given of this volte face, but it seems probable that two main factors explain it. One was that officials at the Law Society had broadly come to accept  that the idea of salaried solicitors  would not go away and that, properly controlled, it even had some merit as a mechanism for solving some of the problems in the legal services field. Secondly, the Law Society feared that if a Labour Government were to win the then forthcoming General Election , it would be likely to implement the proposals of the Society of Labour Lawyers and the Law Society would then lose control of this new development in the provision of legal services.  If state salaried solicitors were to be established, the Law Society wanted to be in charge.’^[8]

(In the event, the June 1970 General Election was won by the Conservatives.)

• January 1970, the Lord Chancellor’s Legal Aid Advisory Committee, in its own volte face, recommended that the Law Society should be given the right to run law centres.  It preferred the Law Society’s argument that the provision of state funded legal services should be under a single management.^[9]

This was in fact translated onto the statute book by the Edward Heath Conservative Government in the Legal Advice and Assistance Act 1972 which came into force in April 1973. Part II of the Act gave the Law Society power to employ salaried solicitors to give legal advice or assistance and to act for individuals with legal aid and to assist advisory agencies in giving advice to their clients. But Part II remained a dead letter. The Law Society was never given any money with which to set up any part of its proposed advisory liaison service – other than to appoint one liaison officer (Mr Simon Hilliard) in June 1969, three years before the Act, and a second in 1977.

• 17 July 1970, the North Kensington Law Centre was opened in a ceremony performed by the President of the Law Society, Mr Godfrey Morley. Messages of support were read from the Lord Chancellor, Lord Hailsham and the Chairman of the Law Commission, Sir Leslie Scarman. The director, Peter Kandler, was an experienced private practitioner. The money for the centre was raised mainly from two charitable trusts, the City Parochial Foundation and the Pilgrim Trust. Between them they made grants of £4,000. In the first year the law centre made another £4,000 from legal aid. There was a local management committee consisting of four lawyers  and six  non-lawyers. One of the lawyers represented the Law Society. Another was Simon Hilliard. All four lawyers supported the law centre concept.

• In 1973-74, thirteen more law centres were set up. By mid-1977, the number was 25. Some were set up by local authorities, some by the Urban Aid Programme administered by the Home Office on the basis of 75 per cent funding from central funds and 25 per cent from local authority funds. The Nuffield Foundation established an experimental centre in London and another later in Manchester. In July 1974, Lord Elwyn Jones, the Labour Lord Chancellor in Harold Wilson’s Government, announced that he had obtained £50K for law centres – increased in 1975 to £100K and in 1976 to £150K. Law centres derived some of their income from legal aid. (The budget of a typical 2-3 lawyer law centre in 1977 was around £50K.)^[10]

The Law Society and the Grant of Waivers from the Practice Rules for Law Centres

Law Centres needed a waiver from the Practice Rules in order to offer free legal services. From the start, the Law Society treated the waiver system as the means to control the establishment of law centres and what they should be permitted to do.

‘[T]he Law Society’s attitude altered from time to time, was applied inconsistently and for the first few years was based   on an analysis of the problem which has since been conceded to be unacceptable.’^[11]

The Rules were designed to ensure that solicitors did not gain any unfair advantage over fellow practitioners by attending free legal advice centres and scooping up lucrative cases. In other words the aim was to support practitioners not the client.

When the first law centre was established the waiver was granted without any difficulty. The only requirements at that time were that there should be an unmet need for legal services in the area, a responsible management committee, including representatives of the local law society and that it had a constitution. By 1973, however, more stringent conditions were imposed. The centre had to sign that they would not undertake conveyancing, commercial or company work, probate, divorce, personal injury or criminal cases on indictment ‘for professional and/or habitual criminals’. That started negotiations with a Law Centres Working Group.

In February 1974, the Law Society produced a draft which provided that waivers would only be granted if ‘a defined and apparent need’ was demonstrated that could not be met by the legal profession. Law centres had to operate ‘under the control of the Law Society’. The local law society had to approve the constitution. Centres could only undertake work that local practitioners were ‘unable or unwilling to undertake’. Waivers would be revocable  at will by the Law Society – for instance if there was evidence  ‘that a centre is retaining cases which could properly be referred to solicitors in private practice’. The centre would have to submit its records to the Law Society at six-monthly intervals showing the number of referrals to private practitioners.

This draft document produced a furious reaction. The Law Centres Working Group refused even to discuss it. The Legal Action Group wrote a blistering critique.^[12] In June 1974, the Law Society said it would withdraw the draft and prepare a new one. On 30 July 1974, the Labour Lord Chancellor, Lord Elwyn -Jones, announced in the House of Lords that the Law Society had accepted that the existing system for dealing with waivers was unsatisfactory and that, as an interim measure, it would work with his office in deciding whether waivers would be granted and on what terms. Machinery was agreed for the Law Society to inform the Lord Chancellor regarding delays in processing waiver applications and for appeals to the Lord Chancellor against refusal of applications for waivers or ‘unreasonable conditions’.

In April 1976, a draft document agreed between the Law Society and the Lord Chancellor’s Department was sent for comment not only to the Law Centres Working Group but to the Legal Action Group,^[13] the National Association of Citizens’ Advice Bureaux and the Greater London CABx. This draft was very different from the 1974 draft. There was no mention of control by the Law Society, only ‘participation’ by the local profession. There was no mention of a non-competition  clause, instead the Law Society would impose conditions depending on the needs of the area. There was no requirement that the need for a centre be proved, merely that the Law Society would make enquiries whether a law centre was needed. The Lord Chancellor would act as referee and court of appeal.

However, at a meeting on 3 May 1976 the draft was rejected by the voluntary agencies – on the ground that it gave the Law Society a task for which it was not fitted - of determining whether there was a need for a law centre in that area. The Law Society did not have the technical know-how to measure unmet need. Moreover, it was in a conflict of interest situation, since it represented private practitioners. The issue was given point by the then current battle over a waiver for a proposed new law centre in Hillingdon. The local council with the support of various community organisations had decided to set up a law centre. The local law society opposed the centre on the ground that it was not a poor, under-solicitored area but one in which the local firms could handle all the available work.  The Law Society sided with the local solicitors. There was a considerable amount of critical lay and legal press interest.^[14] The law centre appealed to the Lord Chancellor under the new procedure. The Lord Chancellor advised the Law Society to grant the waiver. The Law Society, he wrote, should not concern itself with the question of need. That was a matter solely for the funding agency. The test for the grant of a waiver was whether the centre was properly constituted and whether ‘its services will not duplicate those normally provided by private practitioners to such a substantial  extent as to amount to unfair competition’. The Law Society duly gave its consent to the waiver and agreed to give up its claim to assess need.

Negotiations on a new basic document took over a year. On August 31 1977 the Law Society Gazette published the agreed text. This provided that, apart from ‘advice and assistance’ , law centres would not normally act in conveyancing, commercial matters, divorce, probate (save for personal applications in small estates), personal injury cases involving claims above County Court Scale 2 (£500 in 1977), or criminal matters where the accused over 21. These restrictions would not apply however ‘ in exceptional circumstances: in cases of emergency; where the conduct of the case required the matter to be handled by the salaried solicitor;  where a private practitioner was not ‘reasonably available’; where the confidence of the client ‘would be eroded by referral of the case’; and depending on local conditions. Revocation of the waiver would only be considered where the number of cases within the prohibited categories ‘ was so disproportionate to the total number of cases done by the centre that the services normally provided by solicitors in private practice were being unnecessarily duplicated’. In case of any dispute, the Lord Chancellor would ‘advise’.

In 1976, a survey of the 15 then existing law centres found on waivers that they ‘took rather long to obtain, but the Law Society was now mainly said to be “helpful” and relations to be “good” or “friendly”. ^[15]

In preparation for this occasion I was pleased to discover that Law Centres no longer require waivers from the Practice Rules (see p.7):

All solicitors, including those providing services in the not for profit sector or pro bono, must comply with the SRA Principles and the SRA Code of Conduct for Solicitors

Key areas of our Standards and Regulations covered by the not for profit sector guide include:

• The removal of restrictions on how and where solicitors can practise. Beyond the conditions set out in Regulation 9 of the SRA Authorisation of Individuals Rules in relation to certain [reserved] areas of work, there are no longer restrictions on the way that solicitors may practise.