It’s difficult to discuss the LASPO Review without discussing LASPO itself. But for the sake of brevity, and so that we can talk about the substance of the Review, let’s assume we all agree that LASPO was, or rather is, an unmitigated disaster. A disaster for clients and practitioners and for the justice system generally. The government might disagree, but even the National Audit Office determined that LASPO failed in all but one of its four stated objectives: it did in fact make significant savings for the government. Or at least it has in terms of the payments issued by the Legal Aid Agency to providers of legal aid. The jury is still out on whether the downstream costs of LASPO for the public purse are actually higher than the direct savings from LASPO itself. I suspect the financial and resourcing impact on a number of public services (courts and tribunals, health, social services, education, housing and homelessness…) far outweigh the cuts introduced by LASPO. I also suspect the intangible costs on social and community cohesion, on children and families, of the despair of being isolated and disenfranchised, are exponentially more than the few hundred million quid saved on lawyers’ fees and disbursements. But here’s the rub: we don’t have the data. Because despite the government’s pre-LASPO impact assessments acknowledging the likelihood of significant negative consequences, no one in government thought to measure that impact. Now there’s a surprise.
During the passage of LASPO the government conceded that eviscerating large parts of the legal aid ecosystem would have adverse effects, so it agreed to review the impact of LASPO between 3-5 years after its implementation on 1 April 2013. The government made noises about such a review between 2016 and 2018 and did in fact set up a team of civil servants to undertake it. The review stuttered along, undermined by a general election and regular changes in ministerial teams. In 2018 it finally gained momentum, after the 3-5 year period had elapsed, with the announcement of a series of meetings to consult with stakeholders and various other energies to engage with whoever expressed an interest. Our conference in June last year pulled around 90 sector representatives together with the MoJ to discuss a wide range of LASPO and justice issues, recognising that legal aid reforms don’t operate in a policy or operational vacuum. More than 130 organisations and individuals submitted evidence or met with the LASPO review team, which, to be fair, was very ably lead by two knowledgeable and committed civil servants. After another stutter at the end of 2018 the MoJ finally published the Review in February 2019, almost 6 years after LASPO was implemented. The Review looked at both Part 1 of LASPO (legal aid) and Part 2 (civil litigation costs). Along with the Review report the MoJ published a separately paper on inquests and a Legal Support Action Plan setting out how it intends to implement around 23 specific proposals. For our purposes here I’m going to concentrate on what’s covered by the review of Part 1 and the accompanying Action Plan and, crucially, what’s not.
In my view, the Action Plan’s proposals fall into three broad categories:
- Welcome but relatively minor concessions;
- Proposals with real potential to have a substantial and positive impact; and
- Padding (in the absence of a commitment of significant time and resource)
This is not, of course, how the Action Plan is structured. The government prefers to use headings such as accessible and efficient legal aid, complementary forms of legal support and fostering a culture of innovation. And we have to recognise that although the Review has now been published, this is just the beginning of a process of refining and implementing the proposals. Many will argue that we need to give the government the benefit of the doubt, and therefore more time, before we write-off any chance of substantial and substantive improvements. Others will say, quite understandably, that a 2-year review process was long enough to crystalize the proposals and implement the changes that are needed now. And others, including me, will argue that the Review contains some useful initiatives but largely misses the point.
So, what are the welcome but relatively minor concessions? The government has confirmed that by the end of the autumn the legal aid scheme will be widened to cover separated migrant children in immigration cases and family legal aid for public law placement or adoption orders and private law special guardianship orders. It has also committed to improving the Exceptional Case Funding scheme by simplifying the application process and speeding up decision-making. These are all welcome changes but won’t make a huge difference in terms of the number of clients able to access legal aid. And they don’t address the gaping holes elsewhere in the scope of legal aid and the enduring damage caused by LASPO.
More significantly, the government is undertaking a review of the means test, of criminal fees and structures, and is re-introducing face-to-face advice in debt, discrimination and special education need cases. It is also exploring an alternative model for family legal aid and will evaluate the effectiveness of early advice in social welfare law through a pilot project. All of these initiatives have the potential to address both some of the injustices caused by LASPO and some of the irrationalities of the legal aid scheme that existed pre-LASPO. But the key word is potential. For these proposals to bear any real fruit for clients, the government is going to have to accept that the legal aid bill is going to increase. Trying to be more efficient, leaner, work smarter not harder (etc.) doesn’t work for a sector already running on fumes or subsidising their legal aid work with privately funded work.
And then there are the proposals that have a real chance of achieving nothing unless real weight and expertise is thrown into them. Time will tell whether they were included as padding. But statements such as ‘we will work more closely across government, including through existing cross‑government groups, and bringing together departments and support providers to focus on ways to reduce preventable demand’ sound great. All legal aid lawyers tear their hair out daily with DWP, Home Office and local authority decision making. The success rate of ESA and PIP appeals demonstrates that better decision-making would prevent demand for legal advice. But LASPO removed many of these ‘preventable’ cases from the scope of legal aid and the Review doesn’t seek to change that. And to truly get to the heart of preventable demand is a huge undertaking. Does the MoJ have the inclination or the resources to really tackle this? Are other government departments going to play ball?
Critically, the Ministry of Justice won’t tell us how much the proposals will cost and, from what we know so far, hasn’t secured any additional money from the Treasury to deliver them. The Lord Chancellor recently conceded to the Justice Select Committee that the Ministry’s timetable for implementing the proposals (and any subsequent changes which could flow from them) is not in line with the next spending review. Is there a risk that positive reform will be undermined by a failure to secure additional funding? Civil servants are telling us that they want the further reviews and pilots to provide the data and evidence required to secure more investment in legal support. But of course, all of this has to be viewed in the context of ongoing cuts and a government that is divided, distracted and may soon face an election. Will pledges to spend more on legal aid and the justice system win votes in that context?
All of those currently involved in the delivery of legal aid must also remain conscious of one of the key overarching themes running through the Review and Action Plan: future government policy is about legal support not legal aid. My view is that the government sees legal aid as the preserve of solicitors and the barristers they instruct. I also believe many in government consider legal aid solicitors and barristers to be expensive and, well, irksome. Legal support is a much broader concept, as the Lord Chancellor acknowledges in the foreword to the Action Plan by stating that legal aid has ‘an important role’ but is ‘only one part of the picture’ for ensuring clients can access ‘the right support, at the right time, in the right way for them’. I think we all agree that those with a legal problem need a broad range of solutions. But the foreword also hints at the government’s view of lawyers by conflating their role with a visit to court. Clients faced with court proceedings need a lawyer, but the expertise of lawyers also prevents or shortens proceedings and resolves issues that don’t involve proceedings.
Let’s not forget that the Review and Action Plan are the government’s view on how to improve legal aid and legal support. And the government holds the purse strings when it comes to legal services for those with limited means. However, I believe the government has missed the point. The legal aid system needs to cover more of the legal problems that our clients face and legal aid lawyers need to be properly remunerated for the difficult and invaluable work they do. Any wider system of legal support will be totally ineffective with a robust, accessible and sustainable legal aid system, irrespective of technological innovation, better use of data and better co-ordination across government departments. If the Lord Chancellor really is ‘committed to protecting and ensuring access to justice for future generations’ then the government must make legal aid available to more of those who need it and must properly invest in those who deliver the service. Doing so isn’t reckless spending. It is a prudent investment.
Chris Minnoch, CEO Legal Aid Practitioners Group