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At the July 2022 meeting of the
Legal Support Advisory Group (LSAG), a quarterly Ministry of Justice (MoJ) and legal sector engagement forum set up in the wake of publication of the Legal Support Action Plan (LSAP),
1Legal support: the way ahead, CP 40, MoJ, February 2019. there was discussion about the government’s plan to launch a formal review of civil legal aid sustainability. Officials noted that the review would commence in autumn 2022, with the express purpose of developing a set of proposals to improve the long-term sustainability of the civil legal aid provider base. The discussion was fairly brief as officials were not in a position to provide concrete answers to the slew of questions this generated. But with scant detail provided about scope, terms of reference, methodology or resourcing, and no announcement yet in the public domain, the most pertinent question is: do we need another formal review to develop a set of proposals for what seem to me to be blindingly obvious and soluble problems? Here are some reasons why.
Has the MoJ learnt any lessons from the Criminal Legal Aid Review (CLAR, or CLAIR if you factor in Sir Christopher Bellamy’s
independent review)
Announced in 2018 and rolled into the LSAP in 2019, this process has been running for three-and-a-half years. Is criminal legal aid any more sustainable than it was when the process was announced? Some will say a cautious ‘yes’, with a range of ‘accelerated measures’ implemented, and a somewhat nebulous fee increase announced. But this has been rejected by all parts of the profession and described as ‘woefully inadequate’ by The Law Society.
2‘Make or break moment for justice and the criminal defence profession’, Law Society press release, 8 June 2022. Some will quite rightly point out that the pandemic caused considerable disruption to government plans and the operation of the criminal justice system during the CLAR process. But over three years of data collection, analysis and engagement with the profession have failed to generate proposals that will halt the decline of the criminal defence sector, and have led to members of the
Criminal Bar Association voting overwhelmingly to take unprecedented industrial action. We cannot afford a repeat of this long and tortuous process for the civil review. If that happens, it will reinforce the notion that formal government reviews are merely exercises in delay and obfuscation.
How many providers will we lose from legal aid while the review is conducted?
More than 35 per cent of provider organisations left legal aid between April 2012 and February 2022, steadily declining year on year, so not just as a direct result of changes under the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) in April 2013.
3HC Written Question UIN 121917, 9 February 2022; answered 21 February 2022. If another consultation follows this review, how many will we lose while the MoJ reflects on feedback and waits for decisions from ministers? And will the change in justice secretary give rise to a policy quagmire while he beds in? With provider numbers now dangerously low across all civil contract areas, will any eventual sustainability measures be able to resurrect the ailing provider base?
Doesn’t the MoJ already have enough information to understand why civil legal aid providers are unable to run sustainable businesses?
Since the LSAP was published, bodies like LAPG (the Legal Aid Census),
4We are legal aid: findings from the 2021 Legal Aid Census, March 2022. The Law Society (heat maps),
5See The Law Society’s legal aid deserts campaign. the All-Party Parliamentary Group on Legal Aid (the Westminster Commission)
6Inquiry into the sustainability and recovery of the legal aid sector, October 2021. and The Bar Council (the data compendium, with other bodies),
7Summary information on publicly funded criminal legal services, February 2021. among others, have clearly articulated the factors undermining access to legal aid and the viability of services. Many of these reports provide sensible, achievable proposals for positive change. Will the MoJ use them as the basis of its own work, rather than spending time and resources reinventing the policy wheel?
It is also not necessary for the MoJ to commission any new data. It already publishes quarterly statistics detailing the decline in providers, matter starts and spend across all areas of civil legal aid since the introduction of LASPO. These reductions are not explicable by simply pointing out that scope reductions will naturally lead to a decline in new cases: the decline is far more significant and enduring. The Legal Aid Agency also holds unpublished and worrying management information, such as data demonstrating that a high proportion of legal aid contracts are either dormant (no new matters in the past year) or inactive (very few new matters in the past year).
There is more than enough hard data in existence to show what the problems are and also to provide clear solutions: increase fees; redefine guidance so providers can claim for the time it actually takes to conduct cases; increase scope to enable more effective assistance; reduce unnecessary bureaucracy; empower providers to expand to meet demand (to name but a few). One would hope a formal review process will not be about deciding whether these measures are necessary, but about engagement with the profession to agree the scale and implementation of any resulting proposals.
It is possible that the MoJ has learnt from the CLAR process, with discussion at the July LSAG meeting that the civil review is likely to take no more than six months and is unlikely to include a second, external independent review stage. It is also possible that the MoJ will focus on existing data and research, and use the formal review process and structure to develop a set of compelling proposals to ensure the Treasury approves new and substantial investment in civil legal aid. During the review period in 2023, we may see the next long-term civil contract tender round, or perhaps the MoJ will tender for short-term, stop-gap contracts while plans are developed to introduce contracts based on the outcome of the sustainability review. Whatever happens in the coming months, this is a pivotal period for both criminal and civil legal aid.