“Change is afoot within the Ministry of Justice. It is slow and it is underpowered, but it is there.”
However you view the Criminal Legal Aid Review (CLAR) process, it represents a significant shift in legal aid policy. Some will see it as crumbs from an ever-crumbling table; others, an important step forward. In March 2022, those assessments will be given further context by the government’s response to Sir Christopher Bellamy’s report, Independent Review of Criminal Legal Aid
(29 November 2021). But whether you view the process as can-kicking or not, most agree that it signifies a different approach from the Ministry of Justice (MoJ) after decades of regressive policy-making and thinly-veiled contempt towards the profession.
It is impossible to say at this stage whether ministers will respond positively to Sir Christopher’s recommendations. The government’s response should presage a consultation process about remuneration rates and fee structures. If fees are to increase, it remains to be seen whether this will be enough to prevent the continued erosion of the provider base and the drain of lawyers from the defence profession. But given the shift in MoJ attitude, what can civil providers and justice commentators take from CLAR when they think about the immediate future for civil legal aid policy?
It is no surprise that while carrying out the post-implementation review of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, the Conservative government prioritised a review of criminal legal aid and only made vague reference to the issues blighting civil providers. The Conservatives traditionally equate justice with crime and punishment, prison, policing and probation. Ask the person on the street what they think about justice and they too will tend to talk about punishing criminals. Media coverage of the impact of the pandemic on the justice system, such as it is, tends to focus on delayed criminal trials and burgeoning Crown Court backlogs. The notion that those accused of a crime will receive legal representation resonates with the public, for better or worse; in general, the vital role that civil legal aid plays in ensuring access to justice does not. Where it does, it is predominantly portrayed as a negative, costly, obstructive nuisance by politicians and the media. And that is the first lesson to be drawn from CLAR: civil legal aid does not influence voters, so it gets very little attention from politicians.
The second thing we can take from CLAR is that any significant, positive reform of legal aid takes more than MoJ enthusiasm – it requires the Treasury’s backing. Even three years on from the publication of the Legal Support Action Plan (Legal support: the way ahead
, CP 40, February 2019), the MoJ still has to make decisions each year about which of the plan’s policy initiatives it can take forward using the budget allocation for the following year, and the Legal Aid Means Test Review and CLAR required Treasury sign-off even before officials had decided how much they might cost.
The third thing we can take from CLAR is that the MoJ still does not see the justice system as an interlinked and interdependent ecosystem (or if it does, this is not reflected in policy development). It has always seemed counter-intuitive to me that criminal and civil legal aid (and, to some extent, family as opposed to other forms of civil legal aid) are seen as distinct areas of focus, with distinct subsets of providers. Recent management information from the Legal Aid Agency demonstrates that around 40 per cent of crime firms also carry out one or more areas of civil legal aid. A significant proportion of family providers carry out crime and/or other forms of civil work. To reform, or fail to reform, one element of the system can, and does, have a significant impact on others. Yet governments, for want of time, money or care, seem determined to parcel up discrete aspects for reform without considering the knock-on effect on other areas of the system. Much of what Sir Christopher has said about the fragility of the criminal defence profession applies equally to civil providers (and in many cases, these are the same providers), but investment is recommended for one supposed subset while others facing collapse within the same ecosystem are ignored.
The final take-away from CLAR is that MoJ thinking (and therefore potential investment) on civil legal aid appears to be years behind crime. While the MoJ now openly acknowledges that both aspects of the system are in crisis, and the recent consultation on attempts to shore up Housing Possession Court Duty Schemes shows willing, we still don’t have a formal, structured review of civil legal aid. Without such a commitment, how can we influence the process and hold the MoJ to account? And how can we be sure that the Treasury is even listening? The Autumn budget and spending review 2021
(HC 822, 27 October 2021) noted that government would invest to ‘increase the capacity of the civil legal aid sector’ (para 4.31, page 101). However, no actual spending, concrete plans or timelines were announced. This year, the MoJ will pilot and evaluate ‘early legal advice’ (Early Legal Advice Pilot Scheme Order 2022), but can a steadily declining civil legal aid sector survive if this relatively small pilot is the extent of MoJ ambition? The contrast with CLAR couldn’t be starker.
Legal aid providers are a hardy bunch with long memories. After two or more decades of pernicious policy-making, it is understandable that many I speak to are wholly pessimistic about the future. But change is afoot within the MoJ. It is slow and it is underpowered, but it is there. The question for civil legal aid is whether it arrives soon enough, and with sufficient oomph, to stop more providers from lowering the shutters and leaving yet more clients out in the cold.