Martin Partington: Spotlight on the Justice System

February 2019 was a busy month for the Ministry of Justice.They published a large number of official documents relevant to the future of the English Legal System.

First up was the long-awaited post-implementation review of the legal aid changes brought about by Legal Aid, Sentencing and Punishment of Offenders Act (LASPO), Part 1 which introducted major changes to the legal aid scheme. This is a very long document which concludes, broadly, that not much is going to change, at least in the short-term.

The key objectives of the reforms, as the Government saw them, were

1. to reduce expenditure on legal aid;
2. discourage unnecessary and adversarial litigation at public expense;
3. target legal aid on those who need it most;
4. deliver better overall value for the taxpayer.

The Review concludes, in the light of large amounts of evidence it received, that Objective 1 was successfully achieved. In relation to objective 2, the outcomes are unclear. There has been a reduction in clinical negligence litigation, now funded by Conditional Fee Agreements rather than legal aid; but family law litigation is increasing – diverting cases to mediation has not worked. The Review ‘cannot say with certainty’ whether objective 3 has been successful, as there in insufficient evidence from those outside the scope of the current legal aid scheme. They also cannot reach any conclusions regarding Objective 4.

A number of themes also emerged from the Review:

1. Scope changes undermining value for money: LASPO removed many areas of early civil and family legal advice from the scope of legal aid, restricting it to the most serious cases. It is argued this lack of early intervention in social welfare and private family law generate wider costs as relatively minor legal problems can escalate and cluster into more serious problems.
2. People who need legal aid cannot access it: LASPO did not substantially reform the financial eligibility requirements but lots of evidence was submitted arguing change was necessary.
3. Exceptional Case Funding is not working:  There were lots of criticisms over how the scheme operates.
4. Fees for legal aid work are inadequate:  Many practitioners, especially in criminal law, have argued this is affecting recruitment and retention, potentially creating future problems in provision.
5. Increases in litigants in person generating costs: by removing funding for legal representation the volume of self-representing litigants has risen.
6. Advice deserts: people may not able to access advice due to geographical remoteness, or a shortage of supply in their given area.

There was never going to be any chance that, despite the difficulties of assessing whether the objectives for the original legislation had been met and all the other issues the Review identified, the cuts made by LASPO would be restored. The Government has, however, taken modest steps which are worth noting and will be considered in future blog items.

The full report of the Review is at https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/777038/post-implementation-review-of-part-1-of-laspo.pdf