Authors:Chris Minnoch
Last updated:2023-09-25
“The Review of Civil Legal Aid: where are we now?”
Marc Bloomfield
Description: LAPG logo
The Review of Civil Legal Aid (RoCLA) commenced on 30 January 2023 with the publication of a set of terms of reference (ToR). I have written previously that the first offering was met with incredulity due to a lack of clarity, detail and recognition of the impact of three decades of diminishing remuneration (see March 2023 Legal Action 16 and May 2023 Legal Action 21). Much has happened in the intervening seven months, with a series of stakeholder advisory groups (SAGs) established to enable practitioners and policy specialists to feed into the review, the publication of overarching ToR for the entire RoCLA process (7 August 2023), circulation of more detailed ‘mini ToR’ for each workstream, and the sharing of slides and other notes to help explain the Ministry of Justice’s (MoJ’s) thinking and approach.
At the time of writing, the ToR for the economic analysis aspect of RoCLA are yet to be updated. The MoJ has advised us that they will be published soon, following the appointment of external consultants and to reflect the insights gained from the August SAG meeting.
Given that RoCLA is due to publish a set of recommendations in March 2024 (to be followed by a public consultation), we are effectively halfway through the 14 months or so that the MoJ set aside for this process. So where are we now and what is planned over the next six to seven months?
As a quick reminder, RoCLA has four primary workstreams, as set out on the rather sparse page:
1economic analysis of the structure of the civil legal aid market;
2comparative analysis of systems in other countries;
3a series of data publications; and
4social research of user journeys.
The recently published overarching terms of reference
For anyone interested in trying to understand MoJ thinking, these are worth a read. While para 1 (page 1) sets out commendable ambitions, alarm bells start to ring as soon as you hit para 2 (page 1). The MoJ states that the ‘ability of individuals to resolve their legal issues is vital for a just society, and everyone must have the ability to avail themselves of the justice system when they require it’ (emphasis added). We agree. However, this is immediately caveated by noting that analysis and recommendations will all be viewed through the prism of ensuring that the MoJ can ‘target resources where they are most needed’.
The wider context makes this type of statement even more portentous. The MoJ has recently concluded an extensive review of the legal aid means test, so it has, for the foreseeable future, decided who is poor enough to receive state support (Government response to Legal Aid Means Test Review, CP 842, 25 May 2023).1See also July/August 2023 Legal Action 10. The MoJ currently has no additional money to spend on civil legal aid2But note that money appears to have miraculously been found to support the implementation of the Illegal Migration Act 2023: Legal aid fees in the Illegal Migration Bill, MoJ, 27 June 2023; closed 7 August 2023. and officials have repeatedly told us that RoCLA is not specifically considering individual fee increases or an expansion of scope. RoCLA is therefore about building a case for investment in the future, we are told. The next opportunity for the MoJ to seek any significant funding from the Treasury would appear to be the next spending review. But will that happen prior to the general election and will the next administration be interested in the outcome of RoCLA? It appears, therefore, that RoCLA is primarily about exploring alternative ways of procuring, delivering, contracting and funding legal services when practitioners might argue that it should really be about making existing services financially viable.
It must be noted that, over the past six months, the language used by the MoJ appears to have adapted in response to feedback from practitioners and representative bodies. The ToR now prioritise sustainability over efficiency and effectiveness, and there is specific reference to creating a system that offers a ‘financially viable business option’ for providers and is an ‘attractive career option that attracts a high-calibre and diverse workforce’ (para 5(c), page 2). However, in our view, there is still a worrying disconnect between the policy rhetoric and what is emerging from a closer analysis of the work being carried out by civil servants and external consultants.
The economic analysis workstream
The August 2023 SAG meeting introduced the recently appointed external economic analysts, PA Consulting. Their (as-yet unpublished) presentation set out the two primary aims of this aspect of RoCLA:
1to assess how the legal aid market is currently working and determine what is driving problems in it; and
2to identify options on what structural changes the MoJ could make to ensure a more effective and efficient civil legal aid system with sustained provision across England and Wales.
Despite the MoJ’s reluctance to address directly the impact of commercially unviable fees, it does appear that this workstream will at least attempt to understand whether services are profitable or not. There appears to be recognition that demand for advice outstrips supply, but also a worrying lack of commitment to trying to measure the volume and nature of unmet legal need.
PA Consulting explained the four stages of its six-month assignment as:
August to September: describe and define how the market for civil legal aid is working;
September to October: in-depth analysis of the current civil legal aid market, the economic problems and the providers that operate in it;
November to December: identify the problems of the current system that can be mitigated by short-term improvements; and
November to December: for problems needing long-term structural change, identify and shortlist alternatives to ensure a more efficient and effective civil legal aid market (I‘m sure the omission of ‘sustainable’ here was an honest oversight).
Aside from the information gathered from other workstreams, the primary method used to understand the market appears to be a series of telephone interviews with practitioners. The analysts aim to speak to around 250 providers, but we’re concerned that each interview is estimated to last only 10 minutes – insufficient time to explain the complexity involved in delivering legal aid and trying to make it work financially. Providers will be invited to submit economic information after their interviews, but there is no clarity on what will be sought, whether data will be comparable or whether the analysts will be able to disaggregate legal aid income from, say, grant funding or private client income.
The analysts appear to be asking the right questions, but have they been given enough time, resourcing and latitude to really get to the bottom of why civil legal aid is in rapid decline and what the government must do to address this? We are hopeful that the analysts avoid reinventing the research wheel and instead take heed of existing reports, such as LAPG’s 2021 Legal Aid Census3See We are legal aid: findings from the 2021 Legal Aid Census, LAPG, March 2022. and other recent work by The Law Society, the All-Party Parliamentary Group (APPG) on Legal Aid (now the APPG on Access to Justice) and the Justice Committee, among others, to understand what needs to be done to remedy an ailing system.
The international comparator workstream
To be carried out by the government’s Open Innovation Team, this element of RoCLA will compare the civil legal aid systems in Australia, Canada, the USA, Scotland, the Netherlands and Finland, and try to identify promising approaches that could be transferred to England and Wales, to improve accessibility and financial viability. We have expressed serious reservations about whether it is sensible, or even possible, to compare legal aid systems in different countries, given how many complex factors influence demand and supply, and the differences between legal, social welfare and rights-based systems.
The data publications series workstream
This workstream will produce a series of documents summarising key descriptive information about the provision of civil legal aid services, focusing on change over time. Based on data-sharing agreements with The Law Society and The Bar Council, the MoJ will seek to produce an overview of the sector and then use other data sources to carry out ‘deep dives’ into issues relevant to certain categories of legal aid, firm profitability and practitioner remuneration (by carrying out yet another survey). The MoJ has also commenced research on advocacy with the rather enigmatic purpose of exploring the perceptions of civil legal aid advocacy and the different types of legal aid advocates, by interviewing a cohort of around 50 barristers, solicitor advocates and instructing solicitors.
The user journey social research workstream
The MoJ plans to use a literature overview along with interviews of both former legal aid clients and current practitioners to try to understand barriers and pinch points with a view to improving the system. Surprisingly, this research is being carried out by the Legal Aid Agency’s (LAA’s) digital team, despite the fact that legal aid clients have little or no direct contact with the LAA’s digital systems. The MoJ also has no plans to carry out research into the barriers preventing clients from accessing legal aid in the first place, suggesting that this workstream has quite limited potential for improving access to services.
What’s planned by March 2024?
Based on a timeline provided by the MoJ (with all timings given as estimates), we expect an interim report from the economic analysis workstream in November 2023. This should set out preliminary findings and, in combination with an ‘introductory publication’ from the MoJ policy team, a set of options to improve the scheme in the short term. Around this time, the MoJ also expects to publish the series of data reports, before embarking on a more detailed analysis of identified legal aid issues. The final report from the economic analysts is due in early 2024, along with publication of the outcome of the international comparison exercise and an analysis of the LAA’s digital systems. This will be followed by publication of the outcome of the user research and ‘deep dives’ into identified legal aid issues.
The deadline for the publication of all analytical outputs is 31 March 2024, and we then expect to see a public consultation on specific proposals. If the timeline slips, which looks likely given the complexity of the issues at stake, then the consultation will occur in the run-up to the next general election. Does that mean civil legal aid will feature prominently in party manifestos and be buoyed by pledges to invest from all sides of the political divide? That seems optimistic given the mood music in Westminster and the plethora of higher-profile issues dominating the political landscape, but we are pushing the agenda wherever we can and striving to make the outcome of RoCLA a useful tool in our influencing armoury.
1     See also July/August 2023 Legal Action 10. »
2     But note that money appears to have miraculously been found to support the implementation of the Illegal Migration Act 2023: Legal aid fees in the Illegal Migration Bill, MoJ, 27 June 2023; closed 7 August 2023. »