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The ToR provide us with the first opportunity to try to understand overarching ministerial and MoJ thinking about civil legal aid since the publication of the Legal Support Action Plan (LSAP –
Legal support: the way ahead, CP 40) in February 2019, in which the MoJ promised to deliver ‘smarter, better forms of legal support’ because ‘[e]veryone in society should be able to access the right support, at the right time, in the right way for them’ (page 3). Lofty ambitions indeed, and in the four intervening years the MoJ has singularly failed to develop or commission new forms of support while simultaneously presiding over a crumbling legal aid system.
If the LSAP underwhelmed, the ToR for RoCLA just ‘whelm’. It is a confusing and confused document. It contains a number of positive proposals and ambitions but shares one very alarming common theme with the LSAP: it fails to acknowledge the impact of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 and the need to invest in existing systems and methods of delivery.
Much is made in the ToR of ‘issues with the civil legal aid market’ (para 24, page 4) without the MoJ ever addressing the fact that there is no ‘market’. Lawyers want to assist clients who cannot afford to pay. In almost all cases, the only way to do so is via the legal aid scheme, strictly controlled by the MoJ. This is not a market in any sense of the word, it is a monopsony, and the actions and decisions of the sole buyer, the MoJ, are the primary driver for any expansion or contraction of the supplier base. The MoJ has restricted funding and scope over the past two decades, so the ‘market’ has contracted and, as a result, clients cannot defend or exercise their rights. You don’t need an economist to tell you that; nor do you need one to tell you how to fix the ‘market’, despite the ToR saying that the MoJ lacks ‘certainty on what interventions would solve these issues’ (para 24, page 4). I am sorry, but no.
Another theme common to both the LSAP and RoCLA is the MoJ’s seemingly relentless search for something shiny and new to address legal need. We know that the current government and parts of the judiciary are wedded to a number of ‘innovations’: early intervention; digital delivery; and an expansion of alternative dispute resolution. These all have merit, when applied correctly and as part of a properly resourced advice ecosystem, but they all have their limitations too, particularly when applied to social welfare law, and even collectively cannot amount to a panacea for a broken justice system. Any assumption that they are preferable to the current legal aid system reflects a lack of understanding about the legal needs of the majority of those who require support.
The LSAP, RoCLA (as we currently understand it), and the MoJ’s focus on ‘legal support’ and the three innovations set out above tell us something critical about the government’s approach to access to justice: they all suggest there is something inherently wrong with conventional approaches to delivering specialist legal advice. ‘Wrong’, in this context, means too expensive, inefficient and delivered (or accessed) too late to be effective. In my view, the government couldn’t be more wrong: it continues to fail to understand client behaviour, client need and the primary drivers of civil legal disputes. The central issue with conventional legal aid is the horrendously low payment rates, not that the lawyers are slow, inefficient or disproportionately expensive.
The MoJ has established a stakeholder advisory group to engage with organisations with an interest in civil legal aid. Its first meeting on 2 February provided an opportunity to clarify some of the more opaque elements of the ToR. For example, RoCLA has four elements: (1) an economic analysis of the market and (2) an international comparison exercise – both carried out by an external analyst – along with (3) a data publication series akin to the Data Compendium curated as part of the Criminal Legal Aid Review (
Summary information on publicly funded criminal legal services, February 2021) and (4) a user research component. The first two are currently out to tender, while the others remain in the early stages of scoping. The MoJ is hoping to complete all four elements by March 2024, along with the development of a set of policy options to put to ministers. As the timetable in the ToR is so confusing, we have asked for a clearer one to be published.
Until the government acknowledges and addresses its fundamental role in undermining the civil legal aid ‘market’ by failing to regularly increase fees, any review it designs and leads will do no more than tinker around the edges of what is needed to establish and maintain a sustainable supply of expert legal aid providers. The ToR fail to even obliquely reference this issue.
The derisory political response to the Criminal Legal Aid Review has cast a long shadow over RoCLA. In the absence of a government commitment to increase civil legal aid fees, even as a holding measure pending the outcome of the review, it is little wonder that the sector has greeted the announcement with scepticism. Is RoCLA nothing more than a delaying tactic until the next general election? How many clients will miss out and how many providers will go under in that time? Sorry, but no. The civil legal aid scheme does need to be reviewed and recalibrated, but not in the absence of resuscitative funding.