Afua Hirsch: A New Public Services: Legal Aid is the Unofficial Extra Pillar of the Welfare State, and Desperately Needs an Overhaul

The legal aid system has long been regarded as the unofficial extra pillar of the welfare state. It flourished in the 1970s and 80s, when lawyers tackled housing conditions that were "unfit for human habitation", obtained urgent injunctions to protect women facing domestic violence, and defended rapidly expanding numbers of criminal suspects. But its origins go back to the second world war and are no stranger to austerity – the Commission which designed the legal aid framework was established just days before the D Day landings in 1944.

Sixty years after its creation, its budget is now £2bn, funding more than 2.5m cases a year. Despite the views of one judge in 1957 that "people able to afford a television set should not be able to qualify for free legal aid", the service has generally progressed towards greater access to justice, not less.

But few are happy with its current structure. A shift towards "high volume cases" where thousands of people are dispensed advice from call centers, is inevitably prompting the demise of the high-street solicitor and affecting vulnerable communities the most. Reducing fees has arguably reduced quality, as many good lawyers leave or shrink their legal aid practices. Years of tinkering have demoralized the profession and hampered access without achieving major cost savings.

Criminal cases suck up an astonishing amount of the legal aid budget. One per cent of the most expensive cases swallow one quarter of the entire budget. The costs of these cases must be ring-fenced and capped so that other areas of legal aid, which can prevent people from entering the criminal justice system – for example by addressing homelessness and debt, and ensuring access to adequate support for those with mental health problems and troubled domestic arrangements – are protected.

Legal aid in civil cases has been the poor relation, despite the fact that providing support for people with welfare, housing and public law problems can saves money down the line. The strengths of the current system – such as the extensive provision of advice on individual cases through law centers, Citizens Advice Bureaux and local authority services – need to be co-ordinated and far better organized.

The only way to really save costs on criminal legal aid is to invest more in preventing re-offending and intervening effectively with young people. Future governments may want to think about the sheer number of criminal offenses – almost 4,000 introduced under New labor – a level and complexity of criminal legislation that carries with it extra costs for an adequate defence.There is no question that public law family cases, especially those where at-risk children are concerned, cannot be targeted for savings. But should legal aid really pay to resolve private disputes between adults, such as the divorce cases that still take up a significant part of the budget? It is better to focus resources on the judicial review cases that drive social justice and change.

Afua Hirsch is the Guardian's legal affairs correspondent

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