As we near the end of the year, perhaps it is a good time to try to predict what 2022 will bring for legal aid. It would take a raft of measures to remedy two decades of deliberate government neglect, but let’s focus on what’s needed and what I think we’re likely to get. I hope I will be proved wrong, and that we actually get what we need to make legal aid accessible, enable practitioners to deliver profit-making, adaptable, responsive services, and support staff well-being, progression and retention.
Legal aid fees
What do we need?
As this year’s Westminster Commission and Justice Committee reports1Inquiry into the sustainability and recovery of the legal aid sector (Westminster Commission on Legal Aid, October 2021) and The future of legal aid. Third report of session 2021–22 (Justice Committee, HC 70, 27 July 2021).
highlighted, much needs to be done to ensure that legal aid fees adequately reflect the work's complexity, enable providers to run sustainable businesses and reverse the steady drain of lawyers and firms from the sector. Both called for an increase in fees, the Westminster Commission arguing for at least 25 per cent, to undo years of rates failing to keep pace with inflation, with the increase based on pre-2011 levels in civil legal aid to account for a 10 per cent cut that year, and calling for a reversal of the 8.75 per cent cut to crime rates in 2014. Both reports called for regular, inflationary increases, and the Commission argued that an independent fee review body should be established.
What are we likely to get? The Independent Review of Criminal Legal Aid should report at the end of 2021. It is inconceivable that it will find that current rates are sufficient, but will it be brave enough to state just how much fees need to rise to make criminal defence work economically viable? I suspect not, so expect non-committal rhetoric from the government, and representative bodies gnashing their teeth and perhaps even threatening industrial action.
The Autumn budget and spending review 2021
confirmed that the Treasury is willing to ‘invest in the sustainability of the civil legal aid market, along with other potential changes to criminal legal aid’ (para 4.31, page 101). However, no specific spending plans were set out. Positive changes will probably not happen in 2022 (if at all). If they do, though, my money is on an insufficient criminal defence fee increase and state-funded training periods for junior lawyers.
What do we need? The scope of civil legal aid in particular is a mess. Removing private family law, most of debt, welfare benefits and employment, swathes of immigration, and meddling with issues like disrepair and domestic abuse, has utterly undermined practitioners’ ability to provide the services that clients need. These ‘reforms’ have likely saved the government a fraction of the subsequent ‘downstream costs’. They need to be reversed immediately.
What are we likely to get? In 2022, probably nothing. The Ministry of Justice (MoJ) plans to pilot a form of early legal advice in linked areas of social welfare law, centred around those facing possession proceedings. This will only tell us what we already know and will take years to bear the analytical fruit that the MoJ hopes will convince the Treasury to invest further. As far as we know, there are no other plans to expand scope.
The means test
What do we need? The Means Test Review should reach public consultation in early 2022. Civil servants have accepted that the legal aid means test is unnecessarily complex and onerous, and that the earnings thresholds completely prevent access to advice for those unable to pay privately. A complete overhaul is needed and is almost certainly coming.
What are we likely to get? Probably nothing in the short term, despite the fact that the MoJ is likely to announce a series of practical, necessary changes. As with fees, the Autumn budget referenced ‘additional funding to increase the thresholds for means-tested legal aid’ (para 4.31, page 101) but nothing specific was allocated. I suspect that is because it will take months, if not years, to consult on and finalise plans, and then build those changes into the Legal Aid Agency’s (LAA’s) ailing IT systems. Interestingly, the budget document noted that ‘millions more people could be eligible for legal aid’ (para 4.31, page 101, emphasis added), not will be eligible – perhaps the government is well aware that with provider numbers continuing to collapse, newly eligible people are not going to be able to access services.
Decision-making and bureaucracy
What do we need? We need the LAA to make better, more consistent decisions, and to reduce red tape that is completely disproportionate to fees and risk.
What are we likely to get? Expect gradual improvements throughout 2022. The LAA is continuing to review its pandemic response (which primarily comprised contingency measures) and is working with organisations like LAPG to turn temporary best practice into long-term contractual and systemic improvements. There is still much to be done, but the current incarnation of the LAA is (mostly) open to positive change.
Not a particularly optimistic view, then, but given the change in tone within the LAA, the MoJ and the Treasury, possibly the most optimistic assessment of the likelihood of future positive change in the past decade or more.