On 7 February 2019, along with the report, Post-implementation review of Part 1 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) (CP 37, Ministry of Justice (MoJ); see page 7 of this issue), the MoJ published Legal support: the way ahead (CP 40; except where specified, page numbers refer to this publication) as part of its post-legislative review of LASPO. The document is described by its sub-title as an ‘action plan to deliver better support to people experiencing legal problems’, but it is rather short on any action.

Turning to the positives, the plan does include some important commitments. On scope, it promises to extend legal aid to cover special guardianship orders1These are orders in which guardianship is given to a grandparent or other close relative. in private family law cases (page 13) and to extend eligibility for non-means-tested legal aid in public family law cases (page 11). After the successful judicial review brought by the Children’s Society and lobbying from campaign groups, legal aid is also promised by this spring for migrant children separated from their families (page 13). LAG, though, is deeply disappointed that ministers did not decide to extend legal aid for immigration advice for people caught in the Windrush scandal.

In another positive development, the paper commits the government to reviewing eligibility criteria and thresholds for legal aid (page 11). In its submission to the review, the Law Society (among others) argued that the means test for legal aid needs to be reviewed as there has been no uprating in line with inflation since 2010 (The Law Society’s submission of evidence to the Ministry of Justice’s LASPO Part 1 post implementation review, September 2018, page 3). It also cited the research it had commissioned that showed many people below the minimum income standard were not eligible or could not afford the contributions if they qualified for civil legal aid (page 4 of the Law Society submission; see also Professor Donald Hirsch, Priced out of justice? Means testing legal aid and making ends meet, Law Society, March 2018).

On the controversial exceptional case funding (ECF), the MoJ promises to consider whether it can simplify the application process (page 14). It will also look at an emergency procedure for ECF applications. Take-up of the ECF scheme has always been much lower than predicted. In the main review document, the MoJ admits that in the first year of the scheme, only 130 applications were granted as against the 3,700 it had anticipated being funded each year (Post-implementation review of Part 1 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO), page 136, para 580).

Legal Action has not been alone in highlighting the shortcomings of the mandatory telephone gateway since its post-LASPO inception. Last year, the Legal Aid Agency experienced difficulties with the tender process for education and discrimination law (see ‘Civil legal advice education and discrimination tenders abandoned’, March 2018 Legal Action 4). As discussed in the feature article, the MoJ is now admitting to these failures and has agreed to review the service.

An important point about the review process and the report and action plan is that they represent a change in the conversation around legal aid policy. Ministers are no longer talking up the necessity to cut, but are emphasising points such as the need for early advice and – most tellingly – a commitment to making people ‘aware of their entitlement to legal support’ (page 6). Legal aid, it seems, is no longer seen as a problem service that leaks cash, but something worth telling the general public about so they can use it.

It’s clear from its commitments to a face-to-face pilot for social welfare law (page 7) and to evaluating and funding co-location of legal services, such as those based in health settings (page 25), that the MoJ is recognising the arguments of the Low Commission and others about the need for early legal advice to help resolve the clusters of problems the poor and marginalised face. The problem is there is no timetable for rolling out such services and, most importantly, no money allocated, not even for the pilots.

Meanwhile, the £6.5m announced as part of the review is rather parsimonious. An extra £1.5m a year is committed to enhancing support for litigants in person (LIPs). This money will go on the Personal Support Units in courts and online digital tools from the charity Advice Now (page 26). A sum of up to £5m will be spent to encourage legal tech innovation (page 34). In themselves, the LIP support and tech services are worthy areas of spending, but the MoJ seems to stress that a combination of tech and non-legal support is the solution to resolving most legal problems.

In his foreword to Legal support: the way ahead, justice secretary David Gauke MP argues that the government must aim to give people with problems the tools to solve them ‘before they become legal problems that require a court visit and a lawyer’ (page 3). A laudable aim but one that flies in the face of experience, particularly if an arm of government is the cause of a problem. The austerity policies of recent years have led to even more barriers for people trying to enforce their rights in everything from benefits to care services. We believe that in many such cases a lawyer’s letter is still more likely to resolve a problem than a piece of information delivered by a digital service.

The MoJ seems to be embarking on a commendable mission to persuade the Treasury that the legal aid system needs more cash (see page 4 of this issue). Arguments around early advice and services to avoid expensive court-based legal solutions are rightly part and parcel of putting this case. In our adversarial system, though, providing access to justice requires more spending on expert lawyers, and justice ministers should not be afraid to say so.