Authors:Chris Minnoch
Last updated:2023-09-26
“What next for the Review of Civil Legal Aid?”
Marc Bloomfield
Description: LAPG logo
My previous article on the Review of Civil Legal Aid (RoCLA) (March 2023 Legal Action 16) sets out some early thoughts on its shortcomings following January’s publication of a set of terms of reference (ToR). So, let’s take a deeper dive, looking at the sector’s response to the Ministry of Justice’s (MoJ’s) first official offering, but also consider where we are now and what might happen next.
The first meeting of the MoJ-convened stakeholder advisory group demonstrated two things: (1) the ToR are unclear and lack substance; and (2) by failing to acknowledge years of wilful neglect, the RoCLA, as it currently stands, has reinforced the widely held belief that the government has no intention of creating a functioning, sustainable legal aid system.
Following that meeting, membership and representative groups agreed that rather than allow the RoCLA to limp into probable policy purgatory, we could collectively convince the MoJ to put a more effective process in place. It is possible that the MoJ has a more robust process in mind and that civil servants do honestly believe that the end-product of the RoCLA will be a more effective system for meeting public legal need. However, the published ToR, when viewed in the context of a hollow Post-implementation review of Part 1 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) (CP 37, February 2019) and a subsequent Legal Support Action Plan that promised little and delivered even less (Legal support: the way ahead, CP 40, February 2019), simply do not demonstrate a genuine political will to restore legal aid to where it needs to be.
Civil servants invited constructive feedback about the ToR and asked for submissions on other areas of concern that should be covered by the RoCLA. LAPG and the Law Centres Network developed a joint submission, which was endorsed by the Mental Health Lawyers Association, the Immigration Law Practitioners’ Association, LAG, the Housing Law Practitioners’ Association, the Association of Costs Lawyers, Shelter, The Bar Council’s remuneration committee, Public Law Project (PLP) and Young Legal Aid Lawyers (YLAL). The Law Society, Resolution, Access Social Care, YLAL and PLP also submitted thoughts directly to the MoJ. While the full list of concerns cannot be set out here, broadly the groups raised the following points:
ToR should be published for the whole of the RoCLA, not just the economic analysis, setting out its approach, methodologies, expected outputs and constraints, with a clear explanation of how each element supports a set of overarching aims. Comparisons were made to the more detailed ToR published at the outset of the Independent Review of Criminal Legal Aid.
The MoJ must provide assurances that the purpose of the RoCLA is to bring about investment in civil legal aid to make it more sustainable, rather than to find ways of cutting scope or spend.
The MoJ must acknowledge that civil legal aid fees have lost much of their real value since they were set in 1996, so they must increase and the fees scheme must be recalibrated to properly reflect the expertise and time required to assist clients.
More emphasis is required on the systemic changes needed to reduce unnecessary bureaucracy for providers and administrative barriers for clients.
The RoCLA must harness the knowledge of legal aid experts, particularly in relation to understanding differences between jurisdictions when considering international comparisons.
The RoCLA must seek to understand both unmet legal need and the reasons for the decline in the legal aid provider base, and must clearly articulate the evidence base for analysis and explain how the MoJ intends to collect the data required to monitor these issues on an ongoing basis.
The RoCLA should consider all areas of legal aid in detail, along with areas that are not currently in scope but are commonly experienced by those without means to pay for legal services. Areas like community care and family mediation, for example, should not be excluded from in-depth analysis, and mechanisms such as exceptional case funding must also be considered.
A clearer timetable is required, along with an explanation of how any reforms that the RoCLA might recommend align with the Legal Aid Agency’s (LAA’s) tender plans for future contracts.
Interim measures are needed now, primarily in the form of an immediate increase in fees, to ensure that there is at least a stable base of suppliers in place when the MoJ seeks to implement any future reforms. Increasing fees now would also demonstrate to a weary sector that the RoCLA is a genuine attempt to revive legal aid, and would encourage engagement by practitioners, representative bodies and other key stakeholders.
Groups submitted their comments, concerns and helpful suggestions to the MoJ by 16 February 2023. At the time of writing, there has been no formal response from the MoJ.
What do we have now and what do we need?
As we wait for a formal government response, we have a moment to reflect on the chasm that exists between the current scheme and what is required to meet client need. For some time, I have been trying to convince the MoJ that we do not need another lengthy review of civil legal aid because its fragility and shortcomings have been laid bare in report after report in recent years. What we need from government is a statement of intent and then a roadmap setting out how we get there.
So, what would be a good outcome from the RoCLA? Let’s project forward, say 12 months, into what is probably an alternative reality where the MoJ publishes a report that is greeted by cheers and cider bottle caps popping across the sector. My dream report would contain:
Let’s start with a government statement of intent. What we have lacked since the repeal of the Access to Justice Act 1999 is a coherent government strategy to promote and facilitate access to justice. Any strategy worth its salt starts with a clear vision setting out what the organisation is trying to achieve. LASPO’s underpinning principle was to reduce cost, and that set the forward agenda for the MoJ and barricaded ministerial and civil servant ambition behind the impenetrable wall of austerity. It directly impacted on the approach of the LAA, which was created to do no more than administer the scheme. In stark contrast to the Legal Services Commission, the LAA has no role in setting policy, conducting research, or seeking to understand either the demand drivers for legal aid or the sustainability of the provider base.
In the intervening years, the MoJ has published nothing of substance to demonstrate that its approach has changed. In fact, the MoJ does not have a published legal aid or access to justice strategy beyond the now largely forgotten Legal Support Action Plan from 2019. The Legal Aid Agency strategy 2022–23 (17 February 2023) includes three objectives, the first of which is ‘[d]elivering access to justice through legal aid services that meet the needs of our users’. But this is measured through performance indicators for ‘[s]peed of applications, payments, correspondence, telephone services’: admin processes, not justice outcomes.
What we need is a lord chancellor brave enough to devise a strategic vision for a truly functional, accessible and responsive nationwide service, one built on robust evidence about what clients need, how they access services, how legal needs intersect with social, health and other needs, and how other government departments drive demand for legal advice. The strategy must accept that to be truly accessible and sustainable, it will cost more. To counter that, the MoJ should invest in research to demonstrate that effective legal advice, particularly when combined with associated health and support services, reduces downstream public spending. And above that, the strategy should make clear that government understands that an effective legal aid scheme delivers benefits that cannot be measured in pounds sterling. The government of the future must be a champion of legal aid because it is a fundamental, inalienable pillar of our democratic society.
Tinkering with LASPO will not lead to structural or cultural change in the MoJ. We need a new piece of primary legislation that embodies the ambition and vision set out above.
Plans for a sustainable provider base
This statement of intent will release the MoJ from the tethers of LASPO and austerity. Implementation must then start by asking two primary questions: what do clients need and how do we ensure they get it? The answer to the latter is a sustainable base of legal aid providers, working in partnership with other elements of the advice, justice, health and social support sectors.
I am concerned that much of the current government rhetoric around resolving civil legal disputes centres on a belief that technology is cheaper, easier to access and ensures that a higher volume of disputes can be resolved than existing delivery models. But when you think about the needs of those without means, who are often vulnerable in a conventional sense, and then rendered more so by the complexity and import of their legal issue(s), I am not sure that is true. There is an important role in a modern legal aid scheme for tech-based products and solutions, but the core of the service must be experienced, motivated, expert lawyers. After delivering advice for 20 years and seeing tech solutions come and go, I remain convinced that it is the client/lawyer relationship that brings about positive, lasting, life-changing outcomes. The civil legal aid scheme isn’t crumbling because it has failed to harness technology; it is failing because the system doesn’t maximise the potential of its greatest asset – legal aid lawyers.
The RoCLA must accept that fees need to increase to ensure they cover the costs of services and allow providers to generate a profit. Without both of these factors, providers cannot run viable businesses or charities, cannot invest in their systems, and cannot attract, retain and develop their staff. Beyond fees, the RoCLA must simplify processes, reduce unnecessary admin, remove situations where providers work at risk, and accept that the person best placed to assess the merits of a case is the experienced lawyer working directly with the client.
The strategy must also accept that rebuilding the provider base will take time, and will require specific, targeted investment in junior lawyer qualification and training processes.
Services that meet client need
The RoCLA must set out a plan for substantial, independent research about public legal need. Current measures, primarily based on service take-up, tell us virtually nothing about the true extent and nature of need for family and social welfare advice. The research is likely to conclude that civil legal aid services focusing on the client, and working in tandem with other support services, will enable the effective resolution of multiple, interlinked legal issues. At the very least, we need a reversal of the current approach of ‘everything is out of scope unless it is specifically listed as being in scope’, which is counterintuitive and hampers problem resolution.
Client need is also about how and where to access services, and there is no doubt that, in this respect, technology can help to enhance future services. As long as technology facilitates more effective contact between client and lawyer, rather than seeking to replace or replicate that contact, it should improve efficiency and outcomes.
Once again, the strategy will need to anticipate that developing the sector to meet client need by delivering more integrated and comprehensive services will take time and money. After decades of neglect, there are no quick fixes.