The Ministry of Justice is to review the impact of the almost 40% cut to legal aid introduced under the Conservative/ Liberal Democrat coalition government in 2012.
Announcing plans this week to publish an assessment by next summer, the department was making good on a commitment made by the government when legal aid reforms were first introduced to hold a “post-implementation review”.
Access to legal aid, which last year accounted for almost a quarter of total MoJ spending, was severely cut back under the Legal Aid, Sentencing and Punishment of Offenders (LASPO) Act 2012 that aimed to reform the criminal justice system and cut costs.
The Act has been widely criticised by politicians, senior legal figures and human rights campaigners.
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The ministry now spends 21% of its budget on legal aid, which it says is just three percentage points below what it was prior to the enactment of the 2012 Act.
But the MoJ’s total expenditure was cut by 23% in real terms between 2010-11 and 2014-15, and by 10% between 2014-15 and 2015-16, according to the National Audit Office.
MoJ figures show that between 2010-11 and 2016-17 annual spending on legal aid fell by £950m, or 38%, in real terms. Between 2006-07 and 2010-11, annual expenditure on legal aid remained broadly flat in real terms at around £2.4bn per year.
In a post-legislative memorandum presented to the Justice Select Committee on 30 October 2017, the ministry provides an “initial high-level assessment” of how the reforms have worked relative to the government’s objectives in introducing them.
One of the areas where the department has admitted failure is within the objective to discourage unnecessary litigation – the main area in which it hoped to do so was in family law proceedings, by encouraging claimants in child custody or divorce cases, for example, to seek mediation in the absence of legal aid.
“The opposite occurred, with the number of people attending publicly funded… mediation falling” said the MoJ memorandum. Instead, the number of people attempting to represent themselves in family courts has risen.
The post-implementation review will go into more depth. It will look at areas such as the impact of the changes made to the scope of legal aid for family, civil and criminal cases, and the introduction of the Exceptional Case Funding scheme; the introduction of the mandatory telephone gateway and of evidence requirements for victims of domestic violence and child abuse; and changes to the rules on financial eligibility, including the application of the capital eligibility test to all legal aid applicants and increasing income contributions for those eligible to contribute.
In a written statement to parliament on Monday, justice secretary David Lidington said he had asked officials in his department to commence and lead the review.
“Our legal aid system is a fundamental pillar of access to justice, accounting for more than a fifth of the Ministry of Justice’s budget,” he added.
“The reforms within the act were founded on delivering better value for money for taxpayers by reducing the cost of the scheme and discouraging unnecessary and adversarial litigation, while ensuring that legal aid continues to be available for the highest priority cases, for example where life or liberty is at stake, where someone faces the loss of their home, in domestic violence cases, or where their children may be taken into care.”