Legal Aid in England and Wales: accentuating the positive

The Ministry of Justice has now published its review of legal aid cuts introduced through legislation passed in 2012 (hence, its formal title of Post Implementation Review of Part 1 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 ‘the LASPO review”) and an accompanying action plan ‘to deliver better support to people experiencing legal problems (‘the Action Plan’). This post deals with one aspect – and one aspect only – of these two documents: how we might respond constructively to the issues raised in the action plan about technology. Plenty of disappointment has been expressed elsewhere about the cuts themselves but, generally, the action plan seems to be getting a reasonable response as the potential basis for further discussion with the Ministry.

We have, however, to begin with the LASPO review. This claims to have ‘been open, collaborative and objective’. And, actually, the review, contrary to some expectations including – to be fair – my own, was honest. Read it and you get a reasonable assessment of the post-LASPO state of legal aid – it resembles the Somme battlefield towards the end of October 1916: destruction, bodies, mud, the stench of the death of legal aid in its old form. LASPO killed off the claims of a comprehensive judicare model of legal aid established in England and Wales since 1950. There is now no coverage for large areas of family or social welfare law (employment, debt, welfare benefits and housing). Financial eligibility has been sliced to the bone. Though criminal legal aid has been cut, It is civil matters that have taken the greatest hit: ‘Total expenditure on civil legal aid work has reduced by 25% since 2012-13 and, as a consequence, the number of providers doing legally aided civil work has fallen by 32% overall’.

Interestingly, the LASPO review comes to a rather cautious – if not equivocal – view on whether the whole exercise was worth it on any other ground that cost saving: ‘These policies have led to reductions in spending to the legal aid fund in line with that expected initially …  and as a result have achieved economy. Additionally … the scope reductions have been effective … A full assessment of the equity and efficiency effects of these policies, on top of economy and effectiveness, is needed to establish whether these policies represent value for money. Unfortunately, this has not been possible due to lack of appropriate data.’  

As Lord Chancellor and Secretary of State for Justice, David Gauke has been more sensitive and thoughtful than some of his predecessors. In the introduction to the Action Plan, he commits himself ‘to taking the necessary steps now to improve and enhance our legal aid system to ensure that it continues to be accessible and efficient into the future, as part of a broader framework of support.’ He wants an evidence based approach to ‘what support works effectively and at what stage’. And, he wants, as you would anticipate, to use technology: ‘we need to make the most of the opportunity presented by new technologies. We will use funding to develop innovative new ways of delivering support, recognising that technology is our servant and not our master and that the traditional ways of delivering legal support and advice are important.’ What a pleasure – and a change – to get a bit of urbane, if fuzzy, coherence from the minister in charge. 

For those interested in technology, the key parts of the Action Plan are Parts 2 (‘complementary forms of legal support) and 4 (‘fostering a culture of innovation’) – particularly the latter. This betrays that Ministry officials have read what is effectively the equivalent to the Action Plan for Scotland, Rethinking Legal Aid – an independent strategic review by Martyn Evans, published last year. This is remarkable for a number of recommendations including its bold vision of Scotland as ‘a global leader in supporting citizens defend their rights, resolve problems and settle disputes’. Come on, Mr Gauke. Have some ambition. You should  assert the ambition for England and Wales to regain the global leadership that it once had.

Mr Gauke has got a bit of money – £5m. He probably had to fight the Treasury tooth and nail for that. He wants to ‘work collaboratively with the legal, advice and tech sectors to explore new ways of delivering legal support services, especially at early stages of legal problems … ‘ Just to put it in context, Mr Gauke’s money is less than the 2018 grants distributed by the Legal Education Fund (£5.7m) in the same sort of field. So, if we can go back to Brussels to renegotiate the Good Friday agreement and something that the EU said was final then perhaps the Ministry of Justice should return to the Treasury for a bit more. 

The point here is that what is needed is not a little pot of money for a discrete project like the Solicitors Regulation Authority’s £700,000 to look at artificial intelligence in the legal services sector. The Action Plan introduces the comprehensive notion of ‘legal support’ defined as ‘the totality of support available to people from information, guidance and signposting at one end of the spectrum to legal advice and representation at the other.’ The radicalness of this concept should not escape us. It potentially brings together initial advice from bodies like AdviceNow and Citizens Advice, the specialist agencies like Shelter and the Child Poverty Action Group as well as the traditionally legal aid funded private lawyers. Scotland’s Mr Evans has a similar idea: he uses a rather longer portmanteau term ‘publicly-funded legal assistance services’. 

At this point, we might remind ourselves of a bit of history. In 1972, the Law Society persuaded a Conservative government to introduce a legal advice scheme administered through private practitioners to give help on ‘any matter of English law’. It did so to see off the challenge of not for profit providers like law centres – the growth of which was consequently very effectively nobbled. In effect, we now go back to the problems of 1971. We can give basic information through Citizens Advice but how do we help people for whom this is not enough to resolve their problem either because they are too complicated or they are condemned to being litigants in person?  

So, we need a grant programme which explores what kind of assistance will help to jump the gap in the absence of legal aid. We need to know what forms of assisted self-help will allow at least some people to handle their own problems within a comprehensive and comprehensible overall system. Various forms of interactive provision; remote servicing of outposts from central hubs; and document assembly need to be tested. So, the Ministry of Justice should fund experiments and pilots which encourage in their detail implementation of the return of a strategic overall vision for legal aid – albeit amended to take account of the reduced role of the private profession and the increased importance of technology. Legal aid in its old form is dead: long live legal support in its new.

Leave a Reply