Civil Legal Aid Review looks to international jurisdictions for guidance, favouring Netherlands ‘high trust’ model

The UK government has published its international comparator report examining how civil legal aid is delivered in six other countries, as part of its Civil Legal Aid Review.

The Review considered the civil legal aid system in its entirety, from how services are procured, how well the current system works for users and providers, and how civil legal aid impacts the wider justice system.

Policy ideas identified for ‘further investigation’ include a ‘high trust’ method for accepting applications for legal aid certificates in the Netherlands. Lawyers registered with the Legal Aid Board (LAB) submit an online application on behalf of the client. Once the board has assessed the application, legal aid is granted.

The report says:

“For trusted providers, the High Trust method has streamlined the requirements to demonstrate that an application for a certificate has met the “merit” requirement and it takes less time to receive verification from the LAB. Lawyers operating under the High Trust method are required to demonstrate greater compliance by operating in accordance with administrative procedures and rules.”

The review took into account four key areas for comparison, which are as follows:

1.Economic analysis of the structure of the civil legal aid market

This workstream is assessing how the market is currently functioning and identifying the root causes of its problems. It works to form an assessment of the market based on demand trends in the civil legal aid system, supply, how incentives affect different types of providers, and market competitiveness. The workstream aims to form an evidence base for structural changes that will enhance efficiency, effectiveness, and sustainability. This workstream has been contracted to an external supplier, PA Consulting.

2.Comparative analysis of systems in other countries

This workstream has conducted a comparative analysis of civil legal aid systems in six comparators (Australia, Canada, Finland, the Netherlands and the USA, and within the United Kingdom, Scotland). The goal was to identify promising approaches to improve the efficiency and effectiveness of delivering civil legal aid and access to justice in England and Wales. This workstream has been conducted by The Open Innovation Team.

3.A series of data publications

These will be a series of documents summarising key descriptive information about the provision of civil legal aid services, with a focus on changes over time. Starting with an overview of the market based on data sharing agreements with The Law Society and Bar Council, subsequent reports will provide deep dives into key challenges and areas of interest. The data publications are being produced internally by the MoJ.

4.Social research of user journeys

This workstream comprises qualitative research with people who have previously accessed civil legal aid, those who support legal aid users, and legal aid practitioners. Through these different perspectives, the research aims to explore users’ experiences of civil legal aid, to identify issues from a user perspective, and to provide an evidence base for policy development. A review of existing literature on the user experience is also being undertaken.

The Review of Civil Legal Aid will publish reports for all workstreams, releasing evidence papers on this website ahead of the conclusion of RoCLA’s evidence building phase.

Policy development is taking place alongside the research workstreams, consolidating the four analytical workstreams and ensuring they fit with RoCLA’s overarching objectives and support the MoJ’s strategic vision for the future of the Civil, Family and Tribunal justice system. Policy development will continue after the conclusion of the Review’s evidence building phase. We will then hold a public consultation.

Throughout the process, the MoJ will engage with stakeholders to ensure that all findings are relevant and based on a thorough understanding of the issues affecting the civil legal aid system, and to test policy thinking.

The Review will enable the government to develop options for shaping a more effective, efficient, and sustainable system for legal aid providers and the people who rely on legal aid.

Law Society of England and Wales president Nick Emmerson said:

“We welcome this research looking at innovative ways to deliver civil legal aid by considering best practice from similar jurisdictions around the world.

“We are glad to see the report has recognised the importance of ‘holistic, society-wide services’ in helping people to resolve their civil legal issues. There is no replacement for publicly-funded information, guidance and advice to ensure people get the independent, trusted and expert support they need.

“The report rightly recognises that ‘technology is not a panacea when it comes to legal aid’. While technology offers the opportunity to provide people with more ways to get legal advice, there is no substitute for the face-to-face services that are particularly vital for those who are digitally excluded, complex cases or those involving people with particular vulnerabilities.

“The importance of getting the right balance between effective oversight and provider autonomy is also noted.”

Emmerson concluded:

“High levels of bureaucracy contribute to the crisis of sustainability, and the lack of autonomy can create an atmosphere of mistrust between the Legal Aid Agency and its providers.

“The Law Society has already started work to explore how the Netherlands model* highlighted in the report could translate into an England and Wales context.

“While it has the potential to address some of the problems in our current legal aid system, there are several barriers that would need to be overcome for it to work and we will be setting these out in further evidence to the Civil Legal Aid Review later this year.

“However, it’s important to remember that the overarching aim of the review is to make civil legal aid sustainable for the long-term, recognising that it is currently close to collapse resulting in millions** of people being unable to access the support they need.

“Any alternative model will simply not work unless the government provides the funding and investment needed to ensure that legal aid work is financially sustainable for both solicitors and not for profit providers who are the backbone of the civil legal aid system.”