Let me tell you a secret: the government has launched a review into the sustainability of civil and family legal aid. You might not have known as there has been no ministerial announcement or news story published on the GOV.UK website. But despite the lack of fanfare, could this be a turning point for legal aid?
I’m sure we all thought 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)) might address the sustainability of the legal aid supplier base when it was eventually published in February 2019. The tail end of chapter 3 does provide some basic analysis (paras 803–830, pages 192–197), but along with statements such as ‘data suggests that the coverage and supply of civil legal aid provision is largely currently sufficient’, the government accepted that ‘[m]ore research is required to consider the long-term sustainability of the profession’ (para 803, page 192). A year and a half and a pandemic later, I guess it’s now time for that work to begin in earnest.
Without formal terms of reference, it’s hard to say what shape this review will take, but the MoJ has been engaging with practitioners and representative bodies over the past month or so to hone its thinking. It has a wealth of information to call upon from recent external reviews and reports about the impact of legal aid reforms, as well as the sector’s substantial input into the LASPO review. Officials have confirmed that they are considering the following issues:
•the level of fees and structure of the fee schemes, acknowledging that fees are too low to make the work economically/commercially viable and attractive;
•the scope of civil legal aid, particularly for early help, recognising that scope changes mean the fees aren’t reflecting the work done;
•the pipeline into the profession, particularly training opportunities for young/prospective lawyers;
•the delivery model for civil legal aid, learning lessons from COVID-19;
•the administrative burdens placed on providers and the role of the Legal Aid Agency; and
•providers are not experiencing decline in legal need and in fact expect it to rise post-COVID-19.
What happens next? It seems extraordinary to think that part way through the eighth year post-LASPO, the MoJ is only now starting concrete(ish) work on the sector’s long-term sustainability. But we must recognise that, for most of those years, ministers simply wouldn’t countenance such a review. A new ministerial team seems to have breathed life into legal aid policymaking, alongside a focus that is almost unrecognisable in comparison to previous regimes. As a result, the civil servants leading this review are speaking to HM Treasury in relation to the Spending Review and working towards a public consultation.
This sustainability review is one among a number of MoJ initiatives. In a recent press release about the Criminal Legal Aid Review (CLAR), the MoJ introduced a set of accelerated funding reforms and announced that the next stage will be carried out by an independent panel (‘£50 million for legal aid sector
’, MoJ press release, 21 August 2020). While there is some way to go to convince practitioners that CLAR will deliver the significant new investment needed to shore up their firms, it is arguably a step in the right direction. And for providers that cover both crime and civil work, these dual reviews must be welcome news.
The MoJ is also considering major changes to the legal aid means test and is developing a pilot of new forms of early advice and support. The former might not directly impact on the sustainability of providers (most report no shortage of financially eligible clients), but it could reduce the time and energy expended on the current bureaucratic quagmire, as could plans to revise legal aid contracts to bring them up to date and enable more responsive, flexible business models.
And could the £5m innovation fund (see Legal support: the way ahead
, CP 40, February 2019, pages 34 and 35) lead to new technological solutions for clients and practitioners or more efficient ways of working? I personally think not. Pay practitioners fairly, enable them to run robust, even profitable, practices and they will invest in the technology they need.
Of course, there are difficulties with all these initiatives. Have years of underinvestment left the provider base too weak to recover? Are the sums required to ensure long-term sustainability too large to be politically palatable? Will civil servants’ good intentions actually bear fruit once they hit the Treasury’s in-tray? Or will we merely end up with minor tweaks that make no real difference to either clients or practitioners? And will anything substantial come soon enough to save firms and organisations stripped of their last reserves by the pandemic? The All-Party Parliamentary Group on Legal Aid’s sustainability inquiry will, from this autumn, conduct research and listen to witness evidence from across the legal aid landscape. It is highly likely to demonstrate that investment and positive reforms are needed right now.
So, another review. No doubt the sector will engage extensively, in good faith, with ideas and concerns and real, lived experiences. Will it result in the scale of change required to create a fairer, more accessible legal aid system? For the first time in a long while, I’m leaning towards … maybe. But will that change come soon enough to rescue the very practitioners who underpin the system? The jury’s out.