The Ministry of Justice and legal aid – A dereliction of duty

Posted by Legal Futures Editor, Neil Rose

MoJ: Success means the budget has been cut

I am selective about the amount I publish on Legal Futures about legal aid. In line with the overall philosophy of this website, I am interested in how the market is changing, where innovation and technology can help and what the shape of legal aid provision will be in the future – rather than the (many) everyday woes.

Necessity being the mother of invention, some of the most interesting innovation over the years has been at this end of the market (such as health-justice partnerships). Perhaps my favourite story of the last year was that of Affordable Justice, a family law alternative business structure with charitable status based in Hull whose mission is to try and fill the justice gap for women ineligible for legal aid.

Government policy is another area of interest, with the push towards early advice an example of a shift that could have significant impact on the provider market, as well as the ongoing civil legal aid review.

Which brings me to Friday’s National Audit Office report, Government’s management of legal aid. This is focused on the processes and information the Ministry of Justice (MoJ) and its executive agency, the Legal Aid Agency, have to manage the overall legal aid system and to ensure value for money since the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) came into force in April 2013.

I found it shocking. It’s an indictment of policy making where there was a sole goal – to reduce the legal aid budget – with little or no consideration of the consequences.

On this narrowest of terms, the NAO agrees that the MoJ has “succeeded” – the legal aid budget has fallen by more than a quarter in the last decade in real terms.

That, though, is the limit of its success.

The NAO goes on: “MoJ still does not know the full costs and benefits of LASPO as it has not made progress in understanding how the reforms may have affected costs in other parts of the criminal justice system and wider public sector.”

We are more than a decade on and still the MoJ has not bothered to work out whether pushing down one part of the balloon merely expanded another. Some of this was directly within officials’ control as well.

For example, there has been a huge increase in litigants in person in private family law cases since 2013 (neither party is represented in 40% of cases, compared to 14% a decade ago) and the received wisdom is that this lengthens proceedings and hearings, and therefore costs. But HM Courts & Tribunals Service – another MoJ executive agency – does not keep records of how long hearings take, only how long they are expected to take.

The MoJ effectively acknowledged back in 2019 with its legal support action plan that cutting back on early advice – and by implication allowing problems to fester and often multiply – was a false economy. Not that it said so.

But the NAO illustrates just how catastrophic LASPO and the MoJ’s planning were by using the example of publicly funded mediation referrals.

“In family courts, referrals to mediation have reduced significantly since LASPO. This is because the reforms withdrew most funding for solicitor consultations which were the most common source of mediation referrals. MoJ estimates there would be substantial financial savings from diverting family court cases to mediation and so has introduced initiatives to boost mediation levels.

“However, legally aided mediation assessments have remained around 60% below their pre-LASPO levels. MoJ originally expected assessments to increase by around a third following the reforms.”

There are various early advice and intervention pilots now underway in a desperate effort to repair the damage but it seems a very long way from these to a national strategy that will help people at scale.

It will seem hollow to many readers but delivering access to justice is one of MoJ’s three key priorities.

However, according to the NAO, the department “does not collect sufficient data to understand whether those who are entitled to legal aid are able to access it”. This means it is not on top of either the demand for legal aid or the capacity of the provider base to meet it.

Further, the MoJ and LAA have been “slow to respond to market sustainability issues”. The frequent stories about a lack of providers for various services in different parts of the country, not to mention the stark problem of a declining number of duty solicitors, are testament to this.

One of the few things the Law Society has done well in recent years is highlight these problems but rarely do we see genuine solutions.

This is against the backdrop of this government’s approach to justice policy, which sees it add offences to the statute book and promise crackdowns on law breaking without giving sufficient attention to the downstream impact on legal advice and court resources.

None of this is news to legal aid practitioners – a recent PA Consulting report for the review of civil legal aid essentially said the system is running on lawyers’ goodwill and commitment to the cause.

Nor to the many doughty campaigners who are desperate to improve the state of publicly funded legal advice. There is so much good work going on out there, it feels invidious to single any out, but the Access to Justice Foundation is such a vital backer, while I have a soft spot for the work Network for Justice does in promoting innovation.

I recognise that cuts have hit the MoJ very hard over the past decade, like so many parts of the public sector. It just doesn’t have the capability or money to do anywhere near what needs to be done across the justice system. And I recognise too that, outside of the legal and advice sectors, few people care – the MoJ’s overwhelming political priority is prisons.

But there should be no doubt. This report makes clear that the MoJ has failed and failed badly. The depth of that failure is staggering, a dereliction of duty.

Unfortunately, for a long time the MoJ has got a lot more wrong than right (of which probation outsourcing was perhaps the very worst), not helped by a succession of largely hopeless Lord Chancellors at the helm.

But even those who do understand its issues and have a desire to address them, like David Gauke and the current incumbent, Alex Chalk, have seemed unable to do much to change the narrative, hamstrung no doubt by the budget constrictions.

Indeed, this is not solely an MoJ problem, as the many major government (usually IT) projects that have gone off the rails have proven. Let us not forget how the MoJ’s own courts modernisation programme has overrun substantially, with MPs saying last year that it has “burned through” almost all of the budget with almost half of it as yet incomplete.

There is no good news here, nor much hope that things will improve substantially. It can seem pretty hopeless. The wider world neither knows nor cares, but those of us who do should not let our anger dim.

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