UK: Substantial investment in legal aid needed to ensure access to justice, inquiry concludes

A new report by the All-Party Parliamentary Group on Legal Aid presents the findings of an extensive inquiry into the sustainability and recovery of the legal aid sector in the wake of the COVID-19 pandemic. A series of cuts and changes to the legal aid sector over the last decade have taken entire areas of law out of the scope of legal aid (leaving individuals to cover their own costs, if they are to bring a case at all) and the report finds that the low rates available for taking on legal aid work make it difficult for solicitors and barristers to continue working on legal aid cases. It calls for substantial investment in and reform of the legal aid system in order to ensure access to justice.


See: The Westminster Commission on Legal Aid: Inquiry into the sustainability and recovery of the legal aid sector (pdf):

"...the legal aid system as it stands is not sufficient. Nor is it sustainable. We explore each of these themes further throughout the course of the report. If we are to truly level up as a nation, we must ensure that no one is left behind. We believe that legal aid has a significant part to play in this and its role as a safety net in society must be preserved."

Further information about the inquiry is available here.

Executive summary of the report

It is often said that we have the one of the best justice systems in the world – and indeed there is much that we can proud of throughout the legal profession, as it has risen, again and again, to meet the challenges of the past eighteen months. Most of all, we can – and we should – be proud of the high calibre and commitment of its people. However, while the public perception may be of a single, homogeneous profession, the reality is markedly different, with conditions in the commercial sector unrecognisable to those carrying out publicly funded work.

The legal aid sector is an essential part of our high streets. Many legal aid firms and organisations are small businesses, employing local people and servicing their local communities. The sector as a whole is in desperate need of revitalisation and investment if it is to meet public demand in the years to come. Successive governments over the past two decades have taken measures to reduce the cost of the legal aid system and the proportion of the population that it is able to help is becoming increasingly small. The system itself has changed significantly over the past decade, with civil legal aid comprehensively remodelled by the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) in response to the then financial crisis. The position in criminal legal aid has been altered less dramatically, though urgent problems do exist, such as an ageing criminal defence profession, collapsing court duty schemes and decreasing numbers of firms holding criminal legal aid contracts.

We are now eight years from the passing of LASPO and the country is emerging from a pandemic that has placed significant strain on all of our public services. It is a pivotal moment for legal aid as the government and the professions have taken steps toward improving the system and access to justice throughout England and Wales by committing to the following reviews:

  • the Independent Review of Criminal Legal Aid, chaired by Sir Christopher Bellamy QC and due to report in 2021;
  • a comprehensive government review of the legal aid means test, with proposals due to be published in autumn 2021; and
  • an internal government review of the sustainability of civil legal aid (the scope and timings of which were yet to be confirmed at the time of writing).

We see these reviews, particularly the work of the Criminal Legal Aid Review (CLAR) and the means test review, as positive, showing that government recognises the need for structural improvements to be made to the system. We believe that a similarly thorough review of the sustainability of the civil legal aid sector is necessary and urge the government to publicise its intentions with regards to this. Additionally, both the House of Commons Justice Select Committee, chaired by Sir Bob Neill MP, and the House of Lords Constitution Select Committee have, respectively, produced excellent reports into the future of legal aid and COVID-19 and the courts. For the first time, there seems to be a cautiously optimistic mood among some of the practitioners we spoke to through the course of this Inquiry, a recognition that this body of work and this commitment by the government could lead to positive change for legal aid over the next decade.

As an Inquiry, we wanted to use this opportunity to look at the changes made to legal aid over the past decade and assess: whether the legal aid system is fit for purpose now, as our communities seek to rebuild themselves after the pandemic, and in the years to come; whether the system is ‘sufficient’ to meet the needs of the individuals whom it purports to serve; and whether the system as a whole is ‘sustainable’.

Evidence was shared with us by practitioners and clients across crime, family and social welfare law in a series of oral evidence sessions from October 2020 to March 2021. Throughout this period, and in written submissions in the months that followed, witnesses shared their lived experience from the coalface of the legal aid sector both pre-pandemic and during it. This report and the recommendations it contains are based on that evidence and independent research undertaken on our behalf.

We found that although the government spent £1.76 billion on legal aid in 2019–20, there were significant issues around individuals accessing the justice system. This may be because of a lack of providers in their area, or being deemed ineligible for legal aid under the current means thresholds and/or exceptional case funding (ECF) scheme. In some areas, this led to a worrying inequality of arms for those unable to access legal advice or representation in the most emotive and challenging of cases. A review into the civil legal aid means test is due to report shortly and we recommend its urgent simplification and reform so that those who truly cannot afford to pay for legal advice and representation are able to access them. It is also our view that the ECF system is not fit for purpose and in urgent need of review.

Turning to the issue of the scope of legal aid itself, we heard evidence, and know from our own casework, that legal problems generally occur in clusters. To that end, we recommend that certain areas of social welfare law are put back into scope to allow for the provision of a more holistic service that takes into account all a client’s legal needs. Witnesses also described the benefits to both clients and the state of advice given earlier and the knock-on, positive effects that this has on the fairness and
effectiveness of court proceedings, and on reducing unnecessary litigation.

Finally, we looked at the sustainability of the legal aid sector, including the effects of the COVID-19 pandemic. Witnesses told us that over the past two decades, vast areas of law have been removed from the system, rates of pay have stagnated and there have been specific cuts to fees. They explained that this has led to widespread concerns around the recruitment and retention of practitioners. Civil and criminal legal aid providers are facing major sustainability challenges, with current fee schemes failing to reflect the complexity of the work for this often vulnerable client group. Practitioners across the publicly-funded spectrum reported the need to heavily subsidise legal aid work in order to make a living from it. At the bar, we heard from barristers struggling to build and maintain careers in publicly funded work. Recruitment and retention difficulties have contributed to growing advice deserts in many locations. While improvements have been made through the use of technology and in response to the demands of the pandemic, witnesses reported that the system lacks flexibility and the fee structure is in urgent need of reform in all categories of legal aid.

The evidence from our witnesses suggests that the short- to medium-term viability of the sector rests on changes to government policy and on investment. To that end, we recommend a number of measures to tackle the financial viability of a career in legal aid. Firms have told us that they struggle to finance training contracts, so it is our recommendation that we return to a number of state-funded training periods for solicitors, barristers, legal executives and other such forms of training. While practitioners may choose to subsidise their work with private income, it is our belief that legal aid rates should be sustainable in and of themselves. These rates have been frozen for more than two decades in some areas and we recommend that the rates be increased in line with inflation, taking 2011 as a baseline. It is also our recommendation that the 8.75% cut in criminal legal aid be reversed with immediate effect. As with other reviews, it is our belief that an Independent Fee Review Panel should be set up so as to bring the legal aid system in line with other publicly funded services. We believe that any reform of the civil and criminal legal aid systems must view the system as a whole.

What we found over the course of the past year is that the legal aid system as it stands is not sufficient. Nor is it sustainable. We explore each of these themes further throughout the course of the report. If we are to truly level up as a nation, we must ensure that no one is left behind. We believe that legal aid has a significant part to play in this and its role as a safety net in society must be preserved.

 

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