“Does the government have the appetite to provide the investment needed to implement its Legal Support Action Plan?”
At a recent public event, I asked a senior Ministry of Justice (MoJ) civil servant what I thought was a fairly sensible question. Given the 23 or so proposals arising from the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) review,1See Post-implementation review of Part 1 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO), CP 37, MoJ, February 2019 and the Legal Support Action Plan, Legal support: the way ahead, CP 40, MoJ, February 2019.
how much money has the MoJ committed to making them a reality? Surely the MoJ, which speaks so often about the need for pragmatic, evidenced-based policy-making, must have costed out the implementation of its own proposals, even as a ball-park figure? ‘It’s too early to say,’ was the reply, as the MoJ needs to work out how to implement the proposals before it knows how much they will cost.
Now, there are two ways to look at such a response. Many in the sector have, quite understandably, described the LASPO review report and action plan as ‘kicking the can down the road’, as they fail to address the critical underinvestment across the whole of the justice system, not just legal aid. So one interpretation is that ‘it’s too early to say’ is just another expert right-foot curler from a star government striker. It is six years since LASPO eviscerated legal aid, and the MoJ review team took two years to read the mountain of damning evidence and compile a report that came to the conclusion that ‘[t]he market [of legal aid providers] is currently operating at sufficient levels to meet demand’.2Post-implementation review of Part 1 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO), para 816, page 195.
And some of the proposals, such as the pilot of early advice in social welfare law, are surely little more than the government planning to test something that we already know works. Why do we need another pilot to tell us that legal problems cluster and early legal advice prevents escalation, additional cost and preventable knock-on effects? Anyone? It is hardly surprising that many in the sector have lost patience with the process and lost hope that anything more concrete will happen to undo the damage caused by LASPO and subsequent reforms.
Is there, however, an alternative interpretation? I’ve heard some commentators say that the review represents a change in government mood music; that for the first time in many years there is a ministerial team that is willing to listen and engage. Over 5,000 respondents to the pre-LASPO consultation were ignored, so we can, at the very least, credit the MoJ for listening and taking on board some of the ideas put forward during the review process. And, of course, all of the proposals in the action plan are welcome, even if they fall a considerable distance shy of what is needed to overhaul legal aid and make it fit for purpose. So can we see this change in ministerial approach as a genuine opportunity to finally start to reshape legal aid policy to meet the needs of a public in desperate need of legal advice? Or are the proposals a cleverly constructed act of filibustering?
With a spending review due later this year, a government in chaos over Brexit and a lack of discernible detail in the action plan, it is easy to dismiss the proposals. But some have the potential to radically change the landscape for clients: the review of the means test could be a real game-changer, as could the pilot of early legal advice in social welfare law. We all want government departments to work together to reduce preventable demand and a Legal Support Advisory Network could lend a practical, sector-led voice to government policy-making. A new model for family law may well address some of the intended and unintended consequences of LASPO. Streamlining regulatory and administrative requirements could relieve providers of burdensome bureaucracy. The comprehensive review of criminal legal aid is crucial, as is the plan to reinstate face-to-face advice for discrimination, debt and special educational needs. Improving public awareness of legal aid is long overdue, and anything the government can do to make the exceptional case funding scheme less impenetrable should increase take-up.
Providers need genuine action on the issues affecting them right now: poor decision-making, auditing, the client and cost management system, errors, delays, recoupments, rejections and reductions.
But in the end, whether any of the proposals make a real difference to the public will come down to a willingness to spend money. The government knows that legal aid providers, representative bodies and academics will continue to provide invaluable free consultancy to test and hone its proposals and participate in and evaluate its pilots. We will attend countless meetings, submit consultation responses, bid for new contracts and work at unviable rates. We will do so because we want to improve the scheme, widen scope and help more clients. But the legal aid scheme needs significant investment and it needs ministerial appetite for change. The proposals fail to address the fact that civil fees need to be reviewed alongside criminal defence fees. They fail to address the yawning gaps in scope. And they don’t recognise that providers also need genuine action on the issues affecting them right now: poor decision-making, auditing, the client and cost management system, errors, delays, recoupments, rejections and reductions.
Does the government have the appetite to provide the investment needed to tackle these issues and implement the proposals? We will certainly continue to make the case that ensuring legal aid is fit for purpose is not simply a case of finding innovative solutions or using technology to do more with less. The government must invest in those who deliver the service: legal aid lawyers.