An absence of strategic leadership from an “incompetent” Ministry of Justice (MoJ) has contributed to the high level of unmet need in England and Wales, it was claimed this week.
Roger Smith, a solicitor and former director of JUSTICE, also said policymakers should be looking to Scotland as a good example of a well-managed legal aid scheme.
Addressing representatives from the MoJ this week at a seminar hosted by the Legal Services Consumer Panel on unmet legal need, Mr Smith said: “I feel for you.”
He went on: “I have worked in a big organisation that was out of control – the Law Society, not the Ministry – and it was a pretty brutal place to be.”
Mr Smith said there had been 11 justice secretaries since David Cameron first took office as prime minister in 2010, and if you counted Dominic Raab, who had two spells in the job, 12. “We can fairly criticise the MoJ. It’s not a political point, it has just been badly led.”
Mr Smith said leadership of the MoJ had been “incompetent”, with no strategic leadership or strategic body mediating between provision and the department.
“So all you’ve got is the LAA [Legal Aid Agency], which in legal and constitutional terms is an abomination on the face of the land, because it is making decisions on legal matters ultimately and is not sufficiently independent of the ministry, which is obviously an interested party.”
Mr Smith said England and Wales needed “a strategic body which is something like the [pre-LAA] Legal Services Commission reimagined”. Most other jurisdictions had one.
“We need a clear objective for legal aid and we don’t have one. We need an objective that is not focused on lawyers. People need help with their problems, not just from legal aid practitioners and sometimes not within the legal profession.”
Mr Smith said Scotland has a legal aid system that has not “gone through the major cuts and internal problems” of the system south of the border, and had instead “focused outward” and brought in different providers.
“It’s a good example of a well-managed scheme. We ought to be looking to it with a sense of humility for how to run a legal scheme successfully. I find it odd that it is much less referred to than you would expect.”
Mr Smith predicted that something similar to the failed Dutch Rechtwijzer online dispute resolution service for divorce would “come back”, although it would require government money.
He said the pioneering service had failed because the “relevant ministerial official” in the Dutch government retired, the legal profession “rose up” against the scheme and the Dutch people were “slow to use it”.
Emma Austin, a community care and public law solicitor at Central England Law Centre, based in Coventry, said the centre was carrying out a research project on unmet legal need with Warwick University law school and the charity Law for Life.
The qualitative study, due to be published next January, was focused on a group of 35 vulnerable people “who often get missed out of large-scale surveys”. They were contacted via intermediary or frontline organisations, such as a food bank, migrant charity or a charity working with youth homelessness.
The majority of those interviewed relied on benefits and were disabled or had long-term health conditions.
A “significant majority” of interviewees were experiencing problems with welfare benefits and for a “significant proportion” this related to disability benefits.
Homelessness was a common problem, together with rent arrears and damp or mould in properties. Immigration issues loomed large, along with employment problems, whether linked to loss of jobs during the pandemic or zero-hours contracts.
Social care was an unmet need which people did not identify themselves, and there were very few formal assessments.
Ms Austin said few of the interviewees raised issues in isolation, with six out of 10 having at least three legal problems and a third at least four.
She added that the “most prevalent barrier” to accessing services was the way they were administered, in particular delays, “incorrect decisions” and the “dismissive or hostile” attitude of officials.
We reported yesterday that the event also heard calls for lawyers to pay a levy of £150 each through their practising fees to fund social welfare law, and there should also be a £30 levy on county court cases.