Draw the blinds on yesterday

Last week Sir Henry Brooke died at the age of 81. I did not know him, and only appeared in front of him on a couple of occasions (dealing with the costs arguments in respect of the appeals in Hollins v Russell [2003] 1 WLR 2487 lingers in my memory) but he was a judge who can aptly be described as having a tremendous hinterland: one which took him far beyond dealing with individual cases in the Court of Appeal and who had an interest and an influence in such diverse areas as race relations, the Public Law Project, the Law Commission and information technology. Some part of this, although not the whole of his story can be found in the valedictory address given in the Court of Appeal on his retirement, to be found here: http://www.bailii.org/ew/cases/EWCA/Civ/2006/B1.html.

In more recent years he was a regular attender at the Public Law Project conference each October, where I used to see him sitting in the front row, listening keenly to the speakers. He remained an active contributor to legal debate and perhaps the most significant contribution that he made in the last years of his life was his work with the Bach Commission on its report into access to justice (the Final Report of the Bach Commission published by the Fabian Society can be found here: http://www.fabians.org.uk/publications/right-to-justice/) including appendix 6 to the Final Report which can be found here: The History of Legal Aid 1945-2010.

The appendix I would suggest is essential reading for that generation of lawyers who have grown up in a post Legal Aid world: it explains what Legal Aid was, what its social utility was, and its long slow decline, principally due to reasons of cost. As has been observed in other contexts, those who do not learn from history are condemned to repeat it.

Much has changed in the world of law since the heyday of Legal Aid. An excellent article setting out a view of the Bar on Circuit in the days of Legal Aid, a way of life which was already disappearing when I undertook pupillage can be found here:  https://www.counselmagazine.co.uk/articles/the-way-we-were.

It would be foolish to pretend that all was rosy in the garden in that era or it would be possible to return to it: in 1979, there may have been Legal Aid but there was no PACE and the Birmingham Six were behind bars and would be for years to come. The Bar would have been overwhelmingly white and male. And I can only wonder how the “steward of the bottle” who maintained chilled stocks survived the ire of neglected spouses at foregone dinner times and bath times.

But the key issue of the collective funding by our society of legal services remains as relevant now and perhaps more pressing, than in the period of 1945 to 2010 so elegantly summarised by Sir Henry.

Private sector solutions to collective funding of legal services are partial or ineffective, principally focused on civil claims for damages with recoverable costs, with the result that for example, in many vexed family cases, where people of modest means cannot afford to pay lawyers privately, but do not have the option of Legal Aid, justice is effectively denied. The substantive family law is simply too complex, the procedures too labyrinthine to allow litigants in person to obtain access to justice in an effective and real way, sure that every good point is taken and the court’s time is not wasted by the taking of bad points.

Despite the paralysing effect of Brexit upon the current administration I think the pressure to reform access to justice for those cases where there is not a private sector solution will increase. Either society permits this state of affairs to continue, as a moral stain on the justice system until it reaches a point of collapse or a government (of whatever political hue) will have to take action. Legal Aid may yet rise again to take its place alongside the NHS and social security securing the basic welfare of our citizens.

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