Authors:Chris Minnoch
Last updated:2023-09-18
“The government is publicly acknowledging that when you remove legal aid, the magical funding fairy doesn’t swoop in.”
Marc Bloomfield
The new education and discrimination legal aid contracts are now in force. At the time of writing, there is still some uncertainty about how legal aid lawyers operate the contracts and how clients access face-to-face services. We’re still debating some of the finer detail with LAPG’s members and seeking clarification from the Legal Aid Agency. That this is still ongoing after the contracts have started is frustrating, but perhaps that’s inevitable with any new contract. More so, maybe, when those contracts signal a potentially significant shift in government policy.
Why do I think these contracts, which will be relatively small in terms of client numbers, are so significant? In and of themselves, they certainly don’t signal the beginning of a reversal of the swingeing cuts introduced by the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO). The hundreds of thousands of clients who have been denied a service every year since April 2013 aren’t leaping into firms and law centres, relieved that they can finally get the help they need. But I do see these contracts as a tiny sliver of the light that has crept in via various aspects of the LASPO post-implementation review.1Post-implementation review of Part 1 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO), CP 37, Ministry of Justice, February 2019. There are a couple of reasons why I think this.
The government has accepted that mandatory telephone services just don’t work.
Legal advice over the telephone can work. In my experience, it is more difficult and has serious limitations when compared with face-to-face advice, but telephone services can work when they are one part of a well-planned and properly resourced network of services that caters for the many and varied needs of our clients. However, if you take away client choice and suffocate providers by limiting funding to one mode of access and a small number of organisations, then telephone services become ineffective. BuzzFeed News exposed just how ineffective they can become when illustrating significant problems with screening and handling of discrimination cases.
The Legal Support Action Plan (Legal support: the way ahead, CP 40, Ministry of Justice (MoJ), February 2019) doesn’t use quite this language when explaining the rationale behind reinstating face-to-face advice, but some of the language used is key and will be quoted back to government many times as we advocate for wider scope and services that actually cater for client need.
The Action Plan says it is crucial ‘to ensure that the method of access does not inadvertently act as a barrier for some groups’ (page 15). The government concedes that for the ‘legal aid system to be inclusive for everyone across England and Wales, publicly funded legal services should cater to the needs of everyone accessing them’ (page 15). Given government policy over the past six years, these are important sentiments, and it is even more important that this concession has led to new face-to-face contracts and the removal of the mandatory nature of the telephone advice service (which we understand will take place in June 2020).
This section of the Action Plan also goes on to say that the government is ‘keen to ensure every person who needs specialist advice can access it’ (page 15). Now, the context here is ‘access’ and, in particular, the method of contacting an adviser, but we will be pressing government to accept that recognising need and enabling access is also about addressing scope, financial thresholds, proportionate bureaucracy and a sustainable supplier base.
The government has acknowledged that legal aid policy has a direct impact on the ‘market’.
The government has, through the legal aid scheme, a near-monopoly on funding for specialist legal advice and assistance, particularly in family and social welfare law. As a result, legal aid policy directly impacts on the behaviour and commercial viability of those willing and able to provide services. The decision to tender this summer for face-to-face education and discrimination contracts was a clear recognition by government that limiting funding in these areas to telephone advice has directly affected the sector’s capacity to deliver a service.
With the removal of the mandatory element of the telephone service not due until June 2020, the MoJ could have decided to tender for face-to-face contracts that commenced from the same date. However, recognising that very few providers have retained the capacity, staffing, expertise, etc to deliver legal aid in these areas, it accepted that it was necessary to try to ‘encourage new entrants to the market and move towards a removal of the mandatory telephone gateway in a phased approach’. This was very sensible indeed, given the post-LASPO exodus of legal aid providers, but the MoJ went a step further, introducing ‘transitional supervisor standards’ to enable those with a much lower level of experience to operate the contracts and even accepting supervisory experience from up to eight years ago. These lengths were deemed necessary because so much has been stripped from the legal aid sector that the government had no choice if it really wanted these contracts to work.
These concessions are important because they demonstrate that the government is publicly acknowledging that when you remove legal aid, the magical funding fairy doesn’t swoop in to sustain services for our clients. Services disappear; staff move on to other areas of practice or leave the law; and then extraordinary measures are required to bring those services back. So here’s hoping that the new contracts can revitalise vital education and discrimination services, and here’s hoping that we’re not too late convincing the government to repair the damage done to the rest of the legal aid scheme.