Authors:Chris Minnoch
Last updated:2024-02-22
“The Review of Civil Legal Aid is set to conclude at the end of March 2024. What might arise from it?”
Marc Bloomfield
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After a year of meetings, literature reviews, roundtables, research and analysis, the Ministry of Justice’s (MoJ’s) Review of Civil Legal Aid (RoCLA) is set to conclude at the end of March 2024. It has advised stakeholders that a number of the review’s workstreams will continue beyond March, but government plans remain in place to develop a set of policy recommendations arising from RoCLA in spring and begin a public consultation on potential changes in early summer.
RoCLA was established in January 2023 to consider ‘the civil legal aid system in its entirety, from how services are procured, how well the current system works for users and providers, and how civil legal aid impacts the wider justice system’. It comprises four primary workstreams:
an economic analysis of the structure of the civil legal aid market;
a comparative analysis of systems in other countries;
a series of data publications (which also looked at legal aid advocacy); and
social research of user journeys.
The MoJ plans to publish a series of reports and datasets arising from RoCLA, the first of which, a report collated by PA Consulting summarising the views of around 20 per cent of current legal aid providers, was published on 19 January 2024. Part of the economic analysis workstream, the report makes clear that providers consider the civil legal aid system to be unsustainable and the primary problem to be low fee levels. No surprise there, given that most fees were set in 1996, were cut in 2011 and, due to inflation, have fallen in real terms by around 50 per cent.
The final piece in the MoJ’s information-gathering jigsaw is a call for evidence. Launched on 10 January 2024 and running until 21 February 2024, the MoJ has asked for data and evidence relating to: each category of legal aid; fee structures; career development and diversity; user (client) needs; use of technology; and early resolution.
Despite a widespread level of weary cynicism about yet another government review, I would urge anyone with an interest in the future of civil legal aid (and the systems it supports – see below) to respond. Given the MoJ’s willingness to publish damning evidence from providers, unedited and without spin, there is reason to believe that civil servants are genuinely seeking to expose the scale of decline across civil legal aid, even if serious doubts remain about whether any political party has the mettle to find the level of funding required to fix decades of cuts and poor service design.
So, what might arise from RoCLA? Civil servants have been open that the overall objective is to make a case to Treasury for further funding. That there is no funding currently earmarked to improve civil legal aid is telling and is in stark contrast to the Independent Review of Criminal Legal Aid. So, we can expect policy recommendations later this year that focus on systems and contracts and the use of better tech solutions. But will we see the one recommendation to rule them all: a significant increase in fees? Everything that needs to change in civil legal aid will flow from this, and therefore continue to wither in its absence: the ability to recruit and retain talent; the ability to manage risk and ensure business continuity in tough times; the ability to invest in new tech and provide a supportive working environment; the ability to increase capacity, see more clients and expand into the vast and growing advice deserts.
Read the call for evidence, however, and there are signs that it might not just be financial constraints that limit the MoJ’s ability to breathe life back into the ailing civil legal aid sector. The MoJ’s (and senior judiciary’s) ‘[v]ision for the future of the civil, family and tribunal justice system’ (appendix A to the call for evidence) sets out that there are plans to use AI and online dispute resolution to ensure that people experiencing legal problems can ‘access high quality information and support at the right time and in the right way’.
This is not news, and in some ways is a predictable response to the advent of some very smart tech and the potential benefits that it could bring to a justice system with which successive governments have quite frankly fiddled while it burned. But let’s never forget that legal aid is a funding mechanism rather than a service in and of itself. It is often the sole funding source for many types of legal work, but it exists to enable participation in legal processes for those unable to afford to pay for their advice and representation.
If legal processes change, then will the government adjust the legal aid scheme to enable access to a new or altered process? One of the big concerns for us at Legal Aid Practitioners Group is the temptation to effectively design the lawyer out of systems when they become digitalised. Given the vulnerability of almost every single legal aid client, the dangers of doing so, for access to justice and fair outcomes, cannot be overstated.