I recently met with the Legal Aid Agency (LAA) to consider what lessons could be learned from the ‘challenging’ 2018 civil legal aid tender process. It was a frank discussion about timetabling, clunky IT systems, the wording of the Information for Applicants documentation and where the LAA put its resources to support those brave souls who threw their hat into the legal aid ring. We all know of the significant difficulties that providers and would-be providers experienced with the tender, but what I was reflecting on during that meeting was how few organisations now do legal aid. And not just organisations, but actual lawyers. We have stats for the former but no real idea about the latter. However, there is a growing sense that legal aid lawyers are a dying breed.

The official legal aid statistics tell us how many offices (not organisations, as some have multiple offices) completed legal aid work from April 2011 to March 2018 (Legal aid statistics England and Wales tables July to September 2018, Ministry of Justice (MoJ)/LAA, 13 December 2018). In April 2011–March 2012, 7,357 offices completed some form of criminal legal aid and 4,253 completed civil legal aid (table 9.1). By April 2017–March 2018, those figures had dropped to 6,429 and 2,824 respectively. These reductions are worrying enough but look more closely and even more frightening reductions can be found. For example, over the same period, 1,197 solicitor firms and 60 per cent of NfPs bowed out of legal help (table 9.1).1Note that these figures are for offices, not organisations, but represent physical access points for clients. Don’t look at the regional reductions (table 9.2) if you’re worried about client access: the West Midlands, for example, lost 95 solicitor offices doing civil legal aid work and all bar 12 of its NfPs doing the same. And the profile by categories of work also makes grim reading (tables 9.3 and 9.4).

We can all guess at the main drivers of these reductions. You may recall a piece of legislation with an acronym that is now an antonym for accessible. Part 1 of LASPO (Legal Aid, Sentencing and Punishment of Offenders Act 2012) was designed to save money, nothing more; providers cannot provide legal aid in areas of law no longer in scope. There are other factors, too. Our members, and often those whose memberships lapse as they’re leaving the sector, recount a range of reasons for giving up legal aid contracts, from LAA systems and decision-making to the sheer, withering fatigue that comes from turning away another desperate client. When we speak to those stepping away from legal aid, the regret is palpable. Providers are apologetic, and sometimes in tears, when all they are trying to do is safeguard their business, or even their mental health. People don’t get into legal aid for money or status; it is a calling, driven by a desire to help the most vulnerable in society, to level the playing field between individual and state, and to hold the state to account and prevent abuses of power. You don’t give up a job when you hand back your contract; you give up your vocation.

While in full-on reflection mode during the LAA meeting (I was listening to the civil servants, I promise), I wondered whether we can reverse this trend. The LAA has repeatedly told us it is satisfied with the levels of provider coverage across the country, with a few small exceptions that it has tried to plug with a mini-tender here and a ‘creative solution’ there. But speak to any legal aid lawyer or client ringing around in desperation, and satisfied they are not. The Law Society’s campaigns on advice deserts and the ageing profile of criminal duty solicitors show that there are significant problems with retention and geographic spread of providers. Young Legal Aid Lawyers’ last social mobility report (Social mobility in a time of austerity, March 2018) and recent call to reintroduce a mandatory minimum salary for trainees highlight problems with entry to the profession and the viability of firms. Claiming Space and LawCare are deeply concerned about the lack of support for legal aid lawyers dealing with harrowing cases and bulging workloads.

During the recent civil tender round, our members advertised and re-advertised for supervisors so they could take up or maintain contracts. A number reported to us that they couldn’t recruit so couldn’t complete the tender process. There seems to be a growing awareness of spiralling problems impacting on the very lifeblood of the sector: our people.

This is a big problem, and some of the factors impacting on legal aid providers are outside the LAA’s control, but there is one issue above all others that makes addressing the reduction in legal aid providers an imperative: demand for advice has not diminished. There are no official statistics measuring this but the drivers generating the need for legal advice have not changed: debt; poverty; poor housing conditions; domestic abuse; unlawful employment practices; family breakdown; mental and physical health issues; appalling decision-making by the Home Office and the Department for Work and Pensions … The list goes on and I challenge anyone in government to tell me these issues are improving.

Indeed, the Post-Implementation Review has recognised that legal aid needs to be reviewed to enable more effective access to justice (Post-Implementation Review of Part 1 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO), CP 37, MoJ, February 2019). The MoJ made a number of concessions in relation to widening scope, reviewing eligibility and reconsidering how services are delivered. However, the review also states that the government believes that ‘data seems to suggest the market is sustainable at present’ (para 52, page 11). This is a position we would strongly challenge and more needs to be done to ensure there is a healthy provider base. We will continue to press government with a simple message: legal aid lawyers are an invaluable asset and the system simply doesn’t function without them.