Government to launch review of civil legal aid sustainability

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Minnoch: We don’t need a formal review to know what’s wrong

The government is to launch a review of civil legal aid in the coming weeks, the Ministry of Justice (MoJ) has confirmed.

It revealed yesterday that it was extending the 2018 standard civil contract to 31 August 2024.

The MoJ said this would “allow us time to consider findings from the planned Ministry of Justice civil legal aid review. We can then consider how any changes could be introduced into future civil contracts”.

The contract, which came into force on 1 September 2018, was first meant to end on 31 August 2021 but had already twice been extended by a year before yesterday’s announcement.

A spokeswoman said the MoJ would be announcing more detail on the terms of reference and process for the review “shortly”. Legal Futures understands this should be in the next month or so.

According to Chris Minnoch, chief executive of the Legal Aid Practitioners Group, MoJ officials told its legal support advisory group in July that the “express purpose” of the review would be to develop “a set of proposals to improve the long-term sustainability of the civil legal aid provider base”.

The stakeholder group, which was set up in the wake of the MoJ legal support action plan published in 2018, heard suggestions that the review may take no more than six months and was unlikely to include a second, external independent review stage, like the Bellamy review that followed the government’s criminal legal aid review.

In a blog published by the Legal Action Group, Mr Minnoch questioned whether there was a need for another formal review “to develop a set of proposals for what seem to me to be blindingly obvious and soluble problems”.

He cautioned against mirroring the drawn-out nature of the criminal legal aid review, which was first announced in 2018, saying the MoJ risked losing yet more providers in the meantime.

“More than 35% of provider organisations left legal aid between April 2012 and February 2022, steadily declining year on year…

“If another consultation follows this review, how many will we lose while the MoJ reflects on feedback and waits for decisions from ministers? And will the change in justice secretary give rise to a policy quagmire while he beds in?

“With provider numbers now dangerously low across all civil contract areas, will any eventual sustainability measures be able to resurrect the ailing provider base?”

He added on Twitter that the contract extension meant new providers would continue to be locked out of legal aid for another two years, while those wanting to expand could not – and at a time when the legal aid means test was set to be changed to bring two million people back into scope.

Mr Minnoch argued that the MoJ already has enough information from a range of sources – such as this year’s legal aid census and last year’s Westminster Commission on Legal Aid – “to understand why civil legal aid providers are unable to run sustainable businesses”.

It also has Legal Aid Agency data detailing the decline in providers, matter starts and spend across all areas of civil legal aid since the implementation in April 2013 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012.

“These reductions are not explicable by simply pointing out that scope reductions will naturally lead to a decline in new cases: the decline is far more significant and enduring,” Mr Minnoch said.

“The Legal Aid Agency also holds unpublished and worrying management information, such as data demonstrating that a high proportion of legal aid contracts are either dormant (no new matters in the past year) or inactive (very few new matters in the past year).”

The solutions were clear, he went on. This included: increase fees, redefine guidance so providers can claim for the time it actually takes to conduct cases, increase scope to enable more effective assistance, reduce unnecessary bureaucracy, and empower providers to expand to meet demand.

“One would hope a formal review process will not be about deciding whether these measures are necessary, but about engagement with the profession to agree the scale and implementation of any resulting proposals.”