Earlier this week, Lord Low launched the final report (called “tackling the advice deficit”) of the independent expert commission he has chaired for the past year on the future of social welfare advice.
At 123 pages and 100 recommendations, it is not easy reading for the faint-hearted, but it is a serious attempt build a consensus on funding both within the advice sector and beyond, and to address in full policy detail the knotty and complex problems of how to achieve a better funding environment for CABx, law centres and agencies that provide support on everyday legal problems such as tenancy rights, debt and benefit appeals. I say “knotty and complex” because the challenges involve more than the recent legal aid cuts and dire public finances/austerity situation which inevitably put pressure on funding, but also involve debates about access to advice and how advice services are best organised and paid for, as well as other issues of historical context, legal definition and context, branding and quality, delivery and the digital revolution, respective public and private sector roles and the reforms to public services and local government.
So not surprisingly, it’s a long report, and the commission has done a thorough job of engaging politicians, civil servants, legal professions, advice network and local government leaders in its deliberations. So what, to quote Baldrick, is the “cunning plan” and key solution from all this?
Well I’d say the real genius of the Low Commission is to recognise, and take as starting point, that there is no single “magic bullet” solution here – but rather a lot of small incremental steps that taken together could put the advice sector in a systemically better position.
Grand over-ambitious national strategies can sound good but deliver little – remember the last Government’s programme for establishing one-stop shop CLACs and CLANS across the country, and how few were actually delivered. Nevertheless there is a need for a more strategic approach with political support and workable structure in order to raise the game for advice funding, without which SWL advice services will continue falling down the ladder of public funding priorities to such an extent that they will simply whither on the vine. This is what the Low Commission delivers.
The model proposed is one of maximising existing Government funding through establishing a National Advice and Legal Support Fund (including the remaining social welfare legal aid), supplemented by “polluter pays” and private sector funding, and delivered through a local commissioning framework with the funding cascaded downwards by the Big Lottery.
Whilst resolutely advocating a mixed economy of provision, the report also makes various recommendations for different advice agencies to work more closely together in the co-production of “local advice and legal support plans” with local authorities, and to share their information, management and delivery systems.
There are also significant recommendations around public legal education, reducing preventable demand and improving both decision-making and legal processes – it’s an old cliche that safety rails are better than ambulances (but how true also).
From a public policy perspective the package, which would secure funding to the tune of £100million, stacks up and the report is admirably clear about the delineation lines for different funders – Ministry of Justice, Money Advice Service, DWP, NHS, local government, trust and foundations and potential resource transfers from the legal sector (both pro-bono and through tapping into dormant funds).
The real question is whether this package will fly politically. Not only must politicians be convinced, but also the stakeholders.
Big hurdles lie ahead, not least the following:
- Whether the Ministry can really lead the policy agenda on this in Government, when as a department they have shown themselves by record to be as mean-spirited and penny-pinching as they are unimaginative, disengaged about advice needs, inept at dealing with stakeholders, poor at innovation and incompetent at financial management and procurement policy. Harsh words, I know, but no criticism is meant of officials facing the challenge of reducing their budgets by a third whilst maintaining the huge responsibilities of the justice system (the criticism is one of corporate performance and outcome).
- Resistance from government to trialling any form of polluter pays scheme (with accompanying financial incentives to get things right) in the public sector, such as tribunal costs against public bodies or penalty clauses in public service delivery contracts, on the basis that it’s just robbing Peter to pay Paul; similar refrains apply to spreading the advice funding load more evenly across Whitehall Departments.
- The risk that despite the Low Commission pursuing its agenda in a non partisan and all-party way, only one political party ‘runs with it’ and then claims ownership putting other parties off engaging altogether, when given the uncertain political environment for the next few years an all party approach and consensus may be needed to ensure recommendations are taken up by the next Government.
- The uneasiness of some stakeholders leading them to undermine the agenda; the Law Society for example remain implacably opposed to the introduction of any IOLTA (fund generation from Interest on Lawyer Trust Accounts) or other dead asset schemes, and whilst the advice networks generally support a ‘mixed economy’ of provision with shared resources, some (if not most from my experience) are fiercely territorial and protective of their own brand and advice channels.
- That local government, who are expected to do so much these day from improving their social care services under the Care Act, to establishing new wellbeing boards and administering localised welfare schemes, may not have the capacity to lead and develop the proposed commissioning framework for the production and delivery of local advice and legal support plans.
Can such vested interests, political obstacles and governmental inertia both locally and nationally be overcome? The Commission has made a good start – the launch of the report was well attended by stakeholders (including Ministry of Justice), received warm words from politicians, and favourable press coverage. The hard work of engagement and persuasion starts now though to take the ideas of the Commission off the pages of the report, and into practical public policy changes to secure a better future for the advice sector.
- Beside the seaside: Are justice issues making a comeback? - 21st September 2017
- Pro bono: More than a public good - 26th May 2017
- How US pro bono lawyers mobilised to beat Trump travel ban - 8th February 2017
- Public legal education: a quiet revolution in the making - 11th November 2016
- When it comes to attacking legal aid, our new Lord Chancellor has form - 21st July 2016
- Police and Crime Commissioners: the public face of justice - 23rd May 2016
- It’s official: legal aid cuts are making people ill - 11th May 2016
- Queen’s speech: Whither Justice? - 28th May 2015
- Justice Select Committee evidence on LASPO impacts - 16th May 2014
- Low Commission: ‘a good start, but will it fly?’ - 16th January 2014