A little over five years ago, to coincide with the publication of the Post-implementation review of Part 1 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) (CP 37, February 2019), the Ministry of Justice (MoJ) set out its vision for the future of legal support in the form of the Legal Support Action Plan.1See Legal support: the way ahead, CP 40, MoJ, February 2019. This vision sought to reinforce the importance of legal aid, ushering in major policy initiatives such as the Legal Aid Means Test Review and the Independent Review of Criminal Legal Aid, but noted that ‘[e]fficient and accessible provision of legal aid … is only part of the picture’. The MoJ’s plan was therefore to develop and test a range of ‘complementary legal support, helping people resolve their legal problems at the earliest opportunity, before they escalate, through services that are designed around them’.

Following publication of the plan, the MoJ established an external advisory group and ran a series of relatively small projects outside the legal aid sphere. Progress was slow, with resources understandably diverted to respond to the significant challenges of the pandemic, but a number of projects were also shelved or altered when the MoJ encountered practical or resourcing issues. Progress was made on services for litigants in person (without any real thinking about why there are so many of them) and on increasing the ministry’s understanding of the benefits of co-locating advice and health services. Overall, though, I would say that the vision set out in the plan remains largely unrealised.

In recent months, the MoJ has decided to rethink its approach to legal support and has now started to test this in public as it develops a new Legal Support Strategy. At the end of March 2024, it convened a conference and invited a range of advice and legal aid sector bods to lay down some first principles. The responsible minister, Lord Bellamy KC, and his officials set out a range of key themes for the development of the government’s future approach:

Anyone familiar with the Legal Support Action Plan will see significant parallels between that and the current themes. This might leave you wondering what’s happened over the past five years, but in many a meeting with the MoJ I have tried to point out that the plan was not a cohesive strategy but more of a statement of intent and a collection of potentially good ideas. It is therefore a useful thing for the MoJ to develop a comprehensive strategy, to consider the role it can and should play, and to engage with as wide a range of stakeholders as possible. As always, however, I have some words of warning.

Legal support services for people with limited means are many and varied, and, outside legal aid, the vast majority are not funded or commissioned by the MoJ. So, what should the MoJ’s role be in fostering, funding or (some might say) fiddling with services and networks of providers across the UK? And to what degree can it influence the legal support landscape in a meaningful way to ensure that those who need legal services but cannot afford them can and will actually access them? The MoJ is, quite rightly, asking itself this question and is realistic that, from a funding perspective, it is a relatively small player. It currently funds a range of services via the Help Accessing Legal Support Grant channelled to the advice sector through the Access to Justice Foundation (A2JF), but this is a drop in the puddle of advice sector funding. It is not even the largest fund administered by the A2JF, so barely registers when you consider the funding and support distributed by a range of grant-making charities and foundations, local authorities, other central government departments and even City law firms.

A second concern is that a significant proportion of what we might collectively call social welfare law problems are generated by the state, so should it play a central role in developing the provision of legal services to challenge it? Keen observers might recall that the MoJ already funds a range of legal actions against the state – it is called legal aid. So why is it embarking on the creation of a strategy for enhancing services outside the legal aid scheme? What I think is happening is a realisation by the MoJ that it is unhelpful to maintain a distinction between legal aid and legal support, between the advice sector and legal aid providers. Legal aid is one very important funding mechanism but needs to be seen as a central plank in a continuum of services designed around the needs of the people who experience legal issues. This realisation does not, however, allay concerns about the politics and lack of independence that has so substantially eroded the state’s willingness to fund legal services in recent decades.

Let’s not forget that this work is being carried out concurrently with the Review of Civil Legal Aid, which is officially in contemplative repose ahead of the planned publication of the green paper for civil legal aid reform in July 2024. I anticipate that we will see a confluence of MoJ thinking between legal ‘aid’ and ‘support’ that, senior civil servants have told me, is also now reflected in changes to its internal structure to cultivate a more cohesive approach across policy teams.

In the legal aid world, this raises concerns that, with a shrinking budget, the temptation will be to divert limited resources away from conventional legal aid towards support services considered by many officials to be more effective because they are delivered ‘in the community’ or happen ‘earlier’. So, is the current focus on legal support a reflection that the MoJ is facing real-terms budget cuts and therefore needs to develop alternative services that are considered cheaper but reach more people? Does the MoJ have any option but to rob Peter to pay Paul, or to create an AI-powered Peter to replace Paul? What’s needed, of course, is a big injection of funding to expand and improve legal aid, and ensure it is coordinated with a robust network of community-based and online legal support and signposting services. Is there currently political will for that?

For those long in the legal support tooth, much of the current MoJ thinking echoes the Community Legal Service concept introduced by the Access to Justice Act 1999. It reminds us that the Legal Services Commission actively promoted and funded Community Legal Service Partnerships throughout England and Wales, underpinning local networks of legal aid firms, non-profits and advocacy charities. It borrows concepts from the Low and Bach Commissions, which both sought to redefine the government’s role as a commissioner of legal support by creating positive obligations to develop capacity and reduce barriers to legal services. There is therefore no shortage of frustration in the policy world that we are once again witness to the constant cycle of ministers and civil servants reinventing and reinterpreting the legal support wheel without coming to the table with a pump and a puncture repair kit.

We can only hope, therefore, that the eventual Legal Support Strategy centres on what clients need. It must recognise that technology has a role to play, but what many people need when facing a difficult legal issue is ongoing, dedicated help from a qualified legal expert to guide them through a process and, where relevant, access complementary services. It must recognise the incredible value for money and positive impact of existing legal aid services, and the need for further investment rather than redistribution of inadequate resources. And it must not give in to the temptation to think algorithms are a panacea.