“Anyone familiar with the justice system is likely to be correct with a pessimistic assessment of its future.”
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This time last year, I attempted a bit of futurology about what 2022 might have in store for legal aid. Having looked back on that piece, it’s disappointing that my dour predictions were pretty accurate. No prizes for that, however, as anyone familiar with the history of the justice system is likely to be correct with a pessimistic assessment of its future. So, as 2022 draws to a close, what has changed this year, what might those changes mean for 2023 and is there reason for optimism?
Overhauling the legal aid means test
After an exhaustive engagement process, the government put its means test reform proposals
out to consultation in March 2022. At 109 questions covering both proposed changes and an implementation process, the consultation was a doozy. Overall, the recommendations were constructive and, at the time of writing, we await final decisions and a delivery plan from the Ministry of Justice (MoJ). But, as I reflected last year, there remain two really worrying aspects to this process. First, there is a lack of commitment to regularly updating eligibility thresholds, so crucial given inflation and the cost of living crisis. Second, the MoJ also seems wilfully blind to the implication one can draw from the steady decline in providers: many of those who become eligible for legal aid through changes to the means test simply won’t be able to find a lawyer to take on their case. Which leads me to …
Civil legal aid sustainability review
At the time of writing, we await the detail of the review, finally mentioned in public by the government when it
announced its decision to extend civil contracts to August 2024. Officials have told me, however, that they plan to look at a wide range of issues, from updating contracts to reflect modern business practices, to the one problem to rule them all: commercially unviable fee schemes. But with recent economic turmoil and dire warnings from the Treasury about tough choices and difficult times ahead, will the government really refill a legal aid pot that it has raided so regularly over the past two decades? LAPG members tell us that no amount of tinkering with contracts or administrative burdens will make legal aid sustainable; the only way to shore up providers and encourage more organisations to take up legal aid is a significant increase in fees. Which leads me to …
Crime fees and the structure of the LGFS
The report of the government-commissioned
Independent Review of Criminal Legal Aid was unequivocal: criminal defence firms are in a parlous state and nothing short of an immediate 15 per cent increase in fees, as a minimum starting point for reform, would prevent a collapse of the market.
1See, for example, paras 1.37–1.38, page 10 of the report. But that was November 2021 and a lack of action from the MoJ has led solicitor groups to consider advising their members to withdraw from legal aid or take some form of industrial action to force the government to follow its own recommendations. Widespread action across spring and summer by criminal barristers forced a fleeting lord chancellor (Brandon Lewis) to agree to an increase in fees for advocates (with some benefits for litigators).
Current proposals fall well short of the level of investment required to revitalise an ailing and aging criminal defence profession. The new (old) lord chancellor (Dominic Raab)
announced a meek package of measures in November 2022 – a decision
described by The Law Society as a reckless move and fatal blow to the criminal justice system. Even if the MoJ had fully implemented the independent review’s 2021 recommendations, inflation will have swallowed up any potential benefits from marginal fee increases. So much more needs to be done in 2023, yet the government has elected to delay any further changes until 2024, which will be too late for many providers. The MoJ’s approach will accelerate the withdrawal of firms and practitioners, and possibly even trigger further industrial action. Which leads me to …
Will a change in government improve our fortunes?
Instinctively, you might think that a change in government would lead to further investment in legal aid, and in the wider justice ecosystem. Current opposition parties have, for the most part, made positive noises about the importance of the justice system. Or rather, they have – as opposition parties do – pointed out the failings of the current administration. With the last Liberal Democrat party conference cancelled, and Labour virtually silent on legal aid at theirs, it is hard to know whether the importance of publicly-funded advice and representation will feature in opposition election manifestos. If it does, I suspect it won’t be an election-swinging pledge, and we know any future government will inherit a teetering economy and a justice system in need of a monumental level of funding to fix decades of deliberate neglect.
There are other changes afoot, such as tentative signs that the MoJ has realised that current scope restrictions are counterproductive. Both the recently launched
Early Legal Advice Pilot and plans to expand the housing duty schemes demonstrate a change of approach. However, I have written previously that a lack of government ambition means the MoJ’s potentially promising projects are underpowered and unlikely to generate a compelling funding case to the Treasury. Is there room for optimism? Potentially, but it might just take wholesale change at the top.