It is difficult to know what to say here about anything at all in the face of a global pandemic, let alone the proposals that flowed from the Post-implementation review of Part 1 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) (CP 37, Ministry of Justice (MoJ), February 2019). The sector response to the Legal Support Action Plan (Legal support: the way ahead, CP 40, MoJ, February 2019) was muted because the proposals were all a bit ‘meh’. Over the past 15 months or so, we have been involved in a series of meetings, some ad hoc, some part of the formal Legal Support Advisory Group, that have perhaps elevated enthusiasm levels. But if the consensus at the time of publication was that the proposals wouldn’t address the justice deficit or help to sustain a faltering sector, how do they shape up now in the face of unprecedented economic upheaval that could see a significant proportion of legal aid providers collapse?

The MoJ has announced that the Action Plan proposals are suspended while its resources are diverted to dealing with a national emergency. This gives us time to reflect on the proposals, their implementation, and whether they are likely to achieve their stated objectives.

When considering the proposals, we have to keep in mind the decades of retrenchment across the legal aid scheme, in terms of both funding and scope, alongside a hostile political environment for clients and their lawyers, an equally antagonistic press, ambivalence (at best) among the general public and a decade of austerity afflicting the other public services that legal aid clients tend to rely on. The review acknowledged some of these issues, in passing, but the proposals flowing from it did little to address the years-long assault on legal aid and the safety net of civil liberties that underpin the scheme. And neither the report nor the proposals sought to address the systematic dismantling of the legal aid provider base.

We must also bear in mind that the proposals were not solely about legal aid but placed it squarely (perhaps subordinately) in the wider context of ‘legal support’. In an age of quick fixes, digitisation, deregulation of the legal services market and cost-cutting, we could all see where this was going.

Then we turn to the proposals themselves, or at least to the half dozen or so with any potential substance. Based on current plans, they leave a lot to be desired. The social welfare pilot is likely to be a small bolt-on to housing contracts, allowing advice and possible advocacy in relation to mandatory reconsiderations in the benefits system. This will tell the government nothing it could not already glean from the outcomes of pre-LASPO legal help social welfare cases. The public awareness campaign is a mishmash of public education about accessing legal support and who still does legal aid. This was to be piloted in the Midlands, focusing on housing and community care. But no one would address the fact that increasing awareness will increase demand when there is no capacity to respond because the provider base has been eviscerated.

The innovation fund is supposed to create stimulus for technological solutions to delivering advice to marginalised, hard-to-reach, digitally excluded, vulnerable clients. Hmm. And is it sufficient to revolutionise delivery and efficiency in a sector starved of the oxygen of funding for so long? The holistic legal support hubs are seeking to replicate what is already happening in the growing number of health-legal partnerships. Refining the exceptional case funding scheme does not address the fact that the cases funded by it should, logically, be in scope if the government is trying to avoid fundamental human rights breaches.

The Criminal Legal Aid Review was tacked on to the Action Plan but was actually announced months earlier in response to pressures from criminal defence representative bodies. It has the potential to address chronic underfunding and inequality across the system. However, those same representative bodies report being frustrated by a lack of progress and offers from the MoJ that simply flirt at the edges of what is really needed to make the system sustainable.

The review of the criminal and civil means tests is possibly the one exception to this tale of bureaucratic woe. After seven years of telling the government about the myriad iniquities and inconsistencies within the means-testing regime, it might just be starting to listen. Some of the proposals being touted by civil servants could (subject to ministerial approval) feed into a public consultation later this year that might actually open legal aid up to many more people. But if there are no new lawyers to take on the work, how will those people get advice?

Officials have consistently told us that one purpose of the proposals was to gather data and demonstrate to the Treasury that legal aid is an effective tool for preventing downstream costs for public services. But if the proposals have such limited ambition, and if insufficient resources are made available for evaluation, then how will they convince the Treasury? The civil servants engaged in the review are working hard, but they have been given so little to work with that I wonder if they really think they will achieve meaningful results.

Whatever happens over the coming months, some form of normality will eventually return. But then client need will spike and the capacity deficit in the advice sector will be worse than ever. In the face of this, the Action Plan proposals might seem an anachronism. But it was supposed to be the backbone of future MoJ legal support policy, ensuring that ‘legal support remains available for those who need it, both now and in the future’ (Legal support: the way ahead, page 4). Unless the proposals are urgently reviewed, with a renewed focus on matching resources to need, they will achieve very little while expending much-needed resources. We can’t allow that to happen as we need the MoJ to take responsibility for, and champion, legal aid and access to justice. And that means investing and making it possible and viable for legal aid lawyers to do what they do best: protecting the vulnerable and upholding the rule of law.