“What does ‘early advice’ actually mean? Might we be advocating for something we don’t want?”
Throughout the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) review process, campaigners consistently told government about the need to reintroduce early advice. Get in early before issues escalate, before one legal problem generates more complex and costly issues to resolve. Just as an early medical diagnosis increases the chances of successful treatment and saves money down the line, early advice resolves legal problems as they arise, at a reduced cost. So far, so good.
But throughout the review process, and since the publication of the Legal Support Action Plan (Legal support: the way ahead
, CP 40, Ministry of Justice (MoJ), February 2019), no unified definition of ‘early advice’ has emerged. It was latched onto by politicians because it’s a useful soundbite. But without a clear understanding of what it means, might we be advocating for something we don’t actually want and our clients don’t need? It appears the government has, at the very least, agreed to test forms of early intervention and evaluate whether they are cost-effective. But with so much unknown about future legal advice policy and funding, what exactly will be piloted and evaluated? And if government has committed to funding something or someone, somewhere, to help clients sort out legal problems as early as possible, why is this question important?
Read the Plan carefully and you’ll see why I believe it’s crucial that we continue to question the MoJ’s plans. Juxtaposed with the proposal to pilot early legal advice are plans to ‘evaluate the provision of holistic legal support hubs’ (page 25). We are told that these hubs will not employ lawyers. There is also a heavy emphasis on technology and innovation, and a reference to the government evaluating the early legal advice pilot ‘against technological solutions, bearing in mind costs’ (page 7). The plan doesn’t suggest further cuts to legal aid, but with a limited budget and a focus on finding the most cost-effective solution(s), there is little to suggest anything other than piecemeal reinvestment.
And if there is extra money, will it be invested in lawyers with the requisite expertise and experience to deliver effective services? The Plan specifically refers to legal help in the context of the early legal advice pilot. We can therefore assume that it will involve something similar to pre-LASPO legal help across linked social welfare law issues. For this to work, you need experienced lawyers with multiple, linked specialisms, working together to quickly and accurately diagnose legal problems and with the ability to take action. Guided self-help, easy-read websites, student clinics, algorithms and chatbots might help identify some legal issues, but all these forms of ‘early advice’ combined can’t resolve most of them. They can’t interview a distressed homeless family and recognise that a public body is acting unlawfully, draft a pre-action letter, issue a judicial review and get in front of a judge to argue the case at 6 pm on a Friday afternoon.
The Plan consistently acknowledges that early legal advice only works as part of a broader system of legal support, but how will the government properly evaluate the pilot as that ecosystem has been eroded away by years of underinvestment? Gone is much of the network of agencies that populated once-vibrant local advice partnerships. Gone is the expertise of the solicitors and caseworkers from those agencies. Gone is the capacity to make and take referrals. And gone, I’m guessing, is the appetite of many firms to venture back into legal help work that was never financially viable.
The critical question is cost. Experienced lawyers doing difficult work need to be properly remunerated. No one is asking for commercial rates, but they must be commercially viable. Legal aid lawyers in particular do far too much work for free, and successive governments have taken advantage of this for too long. But my reading of the Plan is that there will come a time when the government will have to choose where and in whom (or what) to invest. I have personal experience of political commissioners investing in services that appear to help a large number of people (aka voters) without assessing whether problems are being resolved or lives are being improved. And expert lawyers will almost always (and, for good reason, must) cost more than some of the other options outlined in the Plan. But all of the options can be called ‘early advice’, and some, if targeted well, will produce much bigger numbers than an expert lawyer can achieve under anything resembling the current legal help model.
Finally, do we really need a pilot of early legal advice? The government has plenty of data about positive outcomes from years of pre-LASPO legal help work. What we need is a root-and-branch overhaul of an ailing system and a commitment from government that resources will be directed at services that we already know work: expert lawyers funded adequately to deal with all of the legal aspects presented by each client. I’d like to see government evaluate what’s already going on in legal aid organisations every single day, up and down the country, and often for free because that’s what is needed to get the right outcomes for clients; recognise the real value of what’s currently happening and then target resources to supplement existing services to make them more effective; and pay people properly for the invaluable work they’re already doing. Surely that would be a more productive and cost-effective approach?
MoJ comments on the pilot
•We’re in discussion with cross-government colleagues on the pilot’s scope, both in terms of the area of civil law and geographic remit.
•We’ll be extensively engaging with the profession/third sector throughout July on our initial plans for scope. We want the development of the pilot’s design to be an iterative process that builds on the evidence submissions received during the post-implementation review.