Warren Palmer examines a report from the Commission on Justice in Wales and assesses its recommendations on access to justice and advice provision.
The justice system in its current state is letting down the people of Wales. Access to justice and the funding and provision of advice need urgent attention, as do the family and criminal justice systems. Such are the conclusions of the Commission on Justice in Wales, headed by the former lord chief justice, Lord Thomas.
The commission’s report, Justice in Wales for the people of Wales
, published in October 2019, found that the legal aid cuts brought in from 2013 have hit Wales hard. This has resulted in a lack of proper access to justice, with advice deserts in rural and post-industrial areas, a threat to traditional high-street legal services and a rise in the number of litigants in person. Such findings are unsurprising to anyone who has worked in the advice or legal sectors, but the commission suggests that Wales has suffered disproportionately.
Some of the headline figures are stark, with Wales experiencing a 37 per cent reduction of legal aid expenditure in real terms since 2012, compared with a 28 per cent reduction in England (para 3.11, page 94); in four of the eight legal aid procurement areas in Wales, there is only one housing law provider (para 3.32.1, page 104). Added to this, Wales has higher levels of income poverty than England, with almost one in four of the population affected (para 3.24, page 101). There are obvious challenges in ensuring proper access to justice, particularly in the large, sparsely populated rural areas and others of post-industrial decline.
‘Justice should be at the heart of government,’ the report states (executive summary para 2, page 8), but unlike Scotland and Northern Ireland, justice is not currently devolved to Wales. The commission, set up by the Welsh government, has concluded that urgent reform is needed and that justice policy and funding should be devolved to Wales. This would allow an ‘integrated approach’, aligning justice with other policies, such as education, health and social welfare.
Throughout the years of austerity, the Labour administration in Cardiff Bay has quietly worked to mitigate some of the effects of the cuts. For instance, it has ensured that, unlike in England, the number of police officers has not been cut. The Welsh government has also provided significant funding, from its own resources, for two of the largest advice providers, Citizens Advice and Shelter Cymru.
However, a more thorough and longer-term strategy is required, and the commission was tasked to look at justice in Wales as a whole, considering: criminal justice, the police and prisons; family justice and the courts; and access to justice and the funding and provision of advice. This article will concentrate on the last of these.
Advice provision in Wales
The commission recognises that ‘[i]nformation, advice and assistance are essential to obtaining access to justice’ (para 3.1, page 90). However, it notes that the removal of legal aid for much of social welfare law by the Legal Aid, Sentencing and Punishment of Offenders Act 2012 impacted the Welsh advice sector and drastically affected its ability to provide access to justice.
That impact can be seen in a number of ways. The most obvious is the total collapse in the numbers of people able to gain legal aid for housing, debt or welfare benefit problems. It was a major factor in the closure of Cardiff Law Centre in June 2015, at the time the only Law Centre in Wales. A ‘brain-drain’ has also resulted, after many specialist posts were lost with the cuts. Several years later, it is still often difficult to recruit someone with specialist expertise and experience.
In mitigation, and in spite of having no responsibility for legal aid policy or administration, the Welsh government decided it should step in to provide support, with significant grant funding to Citizens Advice and Shelter Cymru: between 2011/12 and 2018/19, its funding for local Citizens Advice increased from £0.8m to £5m (para 3.37, page 108).
Nonetheless, the commission recognises real problems with advice funding. It cites the Wales Audit Office, from 2017,1Local authority funding of third sector services, Wales Audit Office, January 2017, pages 11 and 30.
that local authorities mostly ‘do not have an effective strategic approach to working with the third sector, and inconsistencies in funding arrangements make it difficult to demonstrate value for money’ (para 3.38, page 112).
It concludes that, overall, advice funding in Wales does not ‘look at what is working well on a local level, is not focused on the beneficiaries and lacks a systematic and strategic approach’ (para 3.39, page 112). In addition, funding has very often been short-term and focused on projects rather than core funding.
The report was published prior to the outcomes being known of the Welsh government’s Single Advice Fund grant programme, running from 1 January 2020.2Written Statement: Advice Services, Jane Hutt, Welsh government, 2 October 2019.
This has merged three streams of advice funding with Money and Pensions Service debt advice funding, with a total of more than £8m. The intention is to encourage greater collaboration between advice providers as well as to ensure greater access both to generalist and specialist advice.
The commission recommends ‘an overall coordinated approach to the issues of advice and assistance’ to address many of the problems raised, including:
•‘The funding for legal aid and for the third sector providing advice and assistance should be brought together in Wales to form a single fund under the strategic direction of an independent body’ (page 123).
•This body would set out a strategy that ‘would ensure that there is no gap in provision and that the funding is sustainable. It should be designed to meet the needs of the people of Wales and deliver fairly and equitably across Wales’ (para 3.66, page 123).
•This independent body would also ‘assist in raising charitable funds in addition to administering public funds to provide core long-term funding and monitoring progress’ (para 3.66.2, page 123).
Finally, ‘Support Through Court
should be expanded so it is available at all courts and tribunals in Wales’ (para 3.66.4, page 123).
While it will take time for the Welsh government and the advice sector in Wales to discuss and work through these recommendations, the following comments can be made.
Bringing together legal aid and advice funding
Unless and until the scope for legal aid in social welfare law expands, bringing legal aid and advice funding together will have little impact on the advice sector in Wales.
The idea of bringing legal aid and advice funding together is an interesting one, but is unlikely to happen soon. This is probably just as well, given that it would require considerable thought and care. Previous attempts to bring together legal aid and local authority funding for advice, for those who remember the CLACs and CLANs3Community legal advice centres and community legal advice networks.
of a decade ago, were not happy ones. Also, unless and until the scope for legal aid in social welfare law expands, it will have little impact on the advice sector in Wales, which currently has few providers carrying out legal aid work.
Independent body to coordinate advice provision
The commission recognises the importance of such a body being independent, without setting out how this should be set up or funded. Again, considerable care and thought would be needed as to its terms of reference. For instance, it is not clear how far it would be answerable to the Welsh government and how it would work with the National Advice Network
(a body set up from the advice community to advise the Welsh government, of which I am a member).
The main concern, however, would be that any attempt to ‘coordinate’ and bring together funding from different sources, even with the aim of ensuring sustainability, would in fact bring additional risk to a sector that has already withstood considerable shocks and uncertainty. AdviceUK
cautions against any measure that could result in a universal credit-type solution, whereby a number of different funds are brought together (I should disclose here that I am an AdviceUK trustee).
Partly, this is the age-old ‘eggs in one basket’ argument. Diversity of funding, while more laborious and often difficult to achieve, allows greater resilience against financial shocks. Coordinated funding, meanwhile, is fine while it lasts but leaves an organisation all the more vulnerable should it be lost.
It would also be important to guard against a one-size-fits-all approach, or at least an element of standardisation, which is a risk of a coordinated system. The commission does recognise the danger of this, stating that any quality framework should ‘combine standards of quality with a proportionate approach to allow small providers to be included’ (para 3.66.1, page 123). The difficulty is that current quality standards are often too onerous for smaller local agencies, however essential they are to their local communities. There would therefore be a risk of further exclusion of such smaller agencies.
The challenge is to ensure an approach that is sufficiently light-touch and flexible to allow for a diverse provider base, able to meet the needs of the people of Wales. This would ideally include both the larger organisations such as Citizens Advice and Shelter Cymru and the smaller agencies that have often been set up to meet local demand.
Support Through Court and pro bono
Litigants in person in family law and employment, in particular, are of concern to the commission. It recognises and endorses the good work of Support Through Court (formerly the Personal Support Unit) and pro bono employment work. It specifically recommends that Support Through Court should be expanded so as to be available at all courts and tribunals in Wales, with the implication that it receives significant additional funding to do so.
This seems to be a sensible measure, as long as it is recognised that pro bono advice and personal support at court are not a substitute for properly funded legal advice. Funding for such an expansion of its work should not, therefore, come from any budget for advice; it is a measure to help with the proper functioning of the courts and tribunals system, and should come from that funding pot instead.
The report has received a cautious welcome from the National Advice Network, with its chair, Fran Targett OBE, commenting:
I welcome the report and its conclusions highlighting many of the issues relating to access to justice which have been previously raised including the emphasis on collaborative approaches, early intervention and prevention. However, I would have also liked to see (as in the NAN vision document) an emphasis on rights, entitlements and choice.
There is a huge amount of detail missing from the report as published and as ever the devil is in the detail. I am eager to seek clarity on how any improved access to justice is intended to work including the implications and likely impact on those most vulnerable.
The commission’s headline recommendation is for justice to be devolved to Wales, bringing it in line with Scotland and Northern Ireland, and allowing for integrated policy-making. But the commission also calls both for greater leadership on justice within the Welsh government in the interim, and for an independent body to coordinate advice, assistance and legal aid.
This gives all parties much to chew over. The commission acknowledges the challenges faced by the advice sector in Wales, in its aim to provide effective access to justice for its clients. Those challenges can only be adequately met, however, by a properly funded and diverse community of advice providers.