These figures from the MoJ will come as no surprise to practitioners on the legal aid front line. In a briefing published in May for the House of Commons Justice Committee, the Legal Aid Practitioners Group (LAPG) warned that ‘without state support that goes above and beyond what is currently on offer through government relief schemes, a significant number of providers will collapse in the months ahead’.

The reduction in criminal court hearings due to the pandemic has had a knock-on impact on criminal legal aid. The MoJ report, Legal aid statistics quarterly, England and Wales April to June 2020 (24 September 2020), highlights a 41 per cent decrease in expenditure on Crown Court cases and a 50 per cent reduction in the volume of work passing through the magistrates’ courts compared with the same period the previous year (page 1). Overall spending on criminal legal aid has fallen from around £215m in April–June 2019 to just over £137m in the same quarter this year, a reduction of just over 36 per cent (Legal aid statistics tables – April to June 2020, MoJ, 24 September 2020, table 1.1).

While overall expenditure for civil legal aid has not decreased by as much – a 16 per cent reduction in the latest quarter compared with the previous year (Legal aid statistics quarterly, page 11) – the impact of measures to combat the pandemic has been far greater on non-family work. The fall in expenditure on family cases was 12 per cent as opposed to 32 per cent in other work.

Expenditure on immigration cases provides an example of the disproportionate impact of COVID-19 on civil legal aid: it fell by 31 per cent compared with the same quarter in 2019 (Legal aid statistics quarterly, page 13). The majority of immigration work was in asylum law and the numbers of refugees claiming asylum have reduced during the pandemic (Immigration statistics: asylum applications, initial decisions and resettlement, Home Office, 27 August 2020, table Asy_D01).

Housing work is by far the biggest casualty of the fall-out from the pandemic. The MoJ reports a 60 per cent decrease in housing cases in the relevant quarter compared with the same quarter last year (Legal aid statistics quarterly, page 13). According to the report, over 80 per cent of housing cases were carried out under the legal help scheme and there was a reduction of around a third in new legal help starts overall compared with April–June last year (Legal aid statistics tables – April to June 2020, table 1.2). Due to the suspension of housing possession cases, the biggest reduction in work has been in the housing possession duty schemes (HPDSs). In April–June 2019, there were 8,878 HPDS new cases; in the same quarter this year, there were none.

In recent years, there has been a slight rise in expenditure on legal aid, but overall spending in real terms has dropped by just over £1bn from £2.8bn in 2005/06 to £1.7bn in the last financial year (Legal aid statistics tables – April to June 2020, table 1.0). This reduction has mainly been driven by the cuts introduced in April 2013 under the Legal Aid, Sentencing and Punishment of Offenders Act 2012 and a squeeze on fees. It is worth noting that 10 years ago, when the then coalition government published its proposals for the reform of legal aid, its policy position was to reduce expenditure by £350m (Proposals for the reform of legal aid in England and Wales, Consultation Paper CP12/10, MoJ, November 2010, para 1.4, page 5; see also Steve Hynes, Austerity justice, LAG, 2012, page 90).

Initial figures released by the MoJ for July show an upturn in demand for both civil and criminal legal aid (Legal aid statistics quarterly, pages 17–18), so ministers must not be tempted to bank what might be characterised as a COVID-19 bonus from the underspend in legal aid. The ‘dire’ situation in the criminal courts caused by the backlog of cases (October 2020 Legal Action 5) will need extra legal aid, among other expenditure, to clear. There is also the justified continuing pressure from criminal practitioners for a pay increase (something civil practitioners need as well!), which could well come to a head over the course of the next year.

The government is struggling to cope with the greatest public health crisis of modern times, but legal aid services should not be allowed to slip down its list of priorities for public spending. The MoJ’s report starkly illustrates the collapse in income many legal aid firms and other providers have experienced. They need support now if they are going to survive to assist the many thousands of people who will be needing help with legal problems in the coming months. Not providing it will risk access to justice becoming another victim of this terrible pandemic.