Westminster Commission on Legal Aid: report from the first evidence session
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Marc Bloomfield
The first evidence session of the Westminster Commission on Legal Aid, organised by the All-Party Parliamentary Group (APPG) on Legal Aid, took place on 29 October 2020 and concentrated on crime. The panel was chaired by Karen Buck MP, chair of the APPG. She was joined by Lord Bach and Lord Low along with MPs Gareth Bacon, Andy Slaughter, Karl Turner and James Daly.
Buck said that a crisis does require you to take stock, which is what Inquiry into Sustainability will do. The Westminster Commission on Legal Aid is a cross-party initiative formed by the APPG on Legal Aid to examine the state of the legal aid sector as it emerges from the COVID-19 pandemic.
In his introduction, Conservative MP Daly spoke candidly: he gave up being a criminal defence solicitor several years ago as it was not financially sustainable. Turner introduced himself and highlighted the threat to legal aid. He said Labour would restore a proper functioning system but feared that there would be nothing left to save.
First to give evidence was Bill Waddington, a consultant solicitor at Williamsons Solicitors and chair of the Criminal Law Solicitors’ Association. Waddington made it clear that even before the pandemic there was chronic underfunding. He noted that there are now 725 fewer providers than there were in 2010. It has become increasingly difficult to recruit and encourage new entrants, he said, adding that the youngest in his firm is 39 and he can see nothing that indicates any improvement.
Daly asked what could be done? Waddington was clear: reinstate the 8.75 per cent fee cut, speed up the Criminal Legal Aid Review and don’t look at short-term projects because when that funding ends, the problems remain – a huge investment is needed.
Kerry Hudson, a solicitor and director at Bullivant Law and president of the London Criminal Courts Solicitors’ Association, talked about the burden placed on firms by release under investigation (RUI) because there is no mechanism for payment. Her firm pays the salary of an administrator to manage police station work in the hope that it will turn into paid work later. Most firms, she said, are making a loss from lower crime (police station and magistrates’ court) work. She added that fees are not coming in as cases are not finishing.
Hudson pointed out that the position is particularly difficult in London, with high levels of rent on top of student debt and low income. There is also an emotional cost to doing this work, she explained, with other sectors of the criminal justice system recognising this and providing more support. When the CPS recruits, she said, it is very tempting for criminal defence lawyers to apply to work there as there is a better work/life balance.
Hudson then pointed out that government measures, eg, the bounce-back loan, merely kick the can down the road; adequate funding of cases and speed of payments is needed.
Finally, Hudson stressed that she became a solicitor because she is from a working-class background and people like her need to represent people from that background. It is not just a job, she said, it is a calling.
Next, Slaughter asked Rakesh Bhasin, a partner and senior solicitor at Edwards Duthie Shamash, about his experiences. Bhasin explained that he has to monitor carefully what cases are taken on and by what level of lawyer in the firm: as the firm does so much legal aid work, it cannot cross subsidise from well-paid other work. The lack of work coming through as well as the lack of payment because cases are not finishing is having a devastating impact: firms will go to the wall, he warned.
Bhasin also highlighted the issue of the higher age of criminal practitioners, joking that he might soon be eligible to rejoin Young Legal Aid Lawyers.
Following Bhasin was Anthony Graham. The managing solicitor/director of Amoso Robinshaw Solicitors and a member of the Black Solicitors Network said that Black, Asian and minority ethnic (BAME) people are equal stakeholders. The Lammy Review showed a disproportionate number of BAME defendants in the criminal justice system; they need to see people who look like them, Graham said.
Graham illustrated the financial problems faced by the profession. In 1996, the magistrates’ court advocacy fee was £56.50; since then it has increased by just 39p. There have been 24 years of no investment and no increase in fees, he said. He stressed that low salaries are an issue for retention but also said it is hard to recruit.
Up next was Dr Laura Janes, legal director at the Howard League for Penal Reform and chair of LAG, who raised the vulnerability of the people with whom she deals: children in prison. It is complex work with clients with a great deal of need. The complexity has increased, she said, but with no increase in fees. She gave an example of a person in their late teens with foetal alcohol syndrome and a reading age of eight. There is a breach of residency requirements. He needs an intensive community care plan. The client is self-harming. You need to deal with the client care issues, negotiating a care package – it is not, she explained, just about prison law.
With fixed fees, you are penalised for the amount of care you provide, Janes said. Yet it costs £90,000 a year to keep a child in jail. It would be cost-effective to pay prison lawyers properly for the work they do getting children out of jail, she explained.
Janes also mentioned the huge impact COVID-19 has had. Prisoners are spending very little time outside their cells. She tried a few weeks ago to get an appointment with a client and has been given a video hearing date at 8.45 am on New Year’s Day. She explained that parole hearings are conducted by video and sometimes have been rushed, adding that remote hearings can be difficult for vulnerable clients.
Joanna Hardy is a practising barrister at Red Lion Chambers, both prosecuting and defending. She volunteers with groups to encourage social mobility and writes on the criminal justice system. She had a state school education.
Lord Bach asked about the attacks by politicians on lawyers. What is the role of the lawyer in the community and as part of the criminal justice system? Hardy said she feels sad about the attacks, particularly as legal aid lawyers are doing difficult, exhausting and emotionally tiring work. She pointed out that she does not get paid extra because she stays up until 3 am; she gets no danger money sitting in cells; she does not get paid for reading unused material yet again to make sure she has not missed anything. She paid tribute to her ‘impressive’ colleagues, adding that she is proud of their work.
Hardy gave an example of the poor remuneration in the profession. A barrister has conducted a criminal trial but cannot conduct the sentencing hearing. A junior barrister may pick the case up. There is a lot of reading; the return journey could take hours; they will have meetings with the client before and after; they will write up the sentencing hearing. Payment will be £126. From that fee, the barrister has to pay travel, food and relevant payments to chambers. It is not enough, she said.
What happened with COVID-19? The initial reaction was understandable, said Hardy, but now the response is underwhelming. The Nightingale Courts are too few and too late. She cannot get a video link to interview clients until after Christmas. Court staff have worked very well and done all they can, she said, but those above them have not tackled the backlog – 50,000 Crown Court cases were waiting to be heard in September. The problem pre-dated the crisis. She said she has heard others describe this as like a dam bursting, but added that another way of putting it is that this is a spotlight turned on the problems.
Hardy talked about the increasing diversity in the profession but said it is still not enough. A recent Bar survey1Diversity at the Bar 2019, Bar Council, January 2020.] revealed how low the numbers are of people from state schools. The Bar is out of step with the general population, she said. She loves her job because of the satisfaction it gives and pointed out that the work will attract people even if there is little money in it. It must, however, be the case that people who are not from privileged backgrounds can do this work.
Bacon questioned Richard Miller, head of justice at The Law Society. Miller qualified as a solicitor in 1992 and practised in a high-street firm, became director of the Legal Aid Practitioners Group in 2000 and joined The Law Society in 2007.
Bacon asked: what are the main issues? Miller responded that a Law Society report last year2Justice on trial 2019: fixing our criminal justice system, The Law Society, June 2019. highlighted remuneration as one of the most serious problems. He said he hears this from around the country on a regular basis, from practitioners in small, medium-sized and large firms. They may rely on one or two big cases a year to tide them over, he said, but those cases are no longer happening.
The means test has not been uprated since 2010, said Miller. That means many on low incomes are not entitled to legal aid and there are more people representing themselves in the magistrates’ court. The means test calculation is very complex. In a report commissioned by The Law Society,3Priced out of justice? Means testing legal aid and making ends meet, Loughborough University Centre for Research in Social Policy, March 2018. Professor Donald Hirsch analysed the effect of the means test with regard to the Joseph Rowntree Foundation’s minimum income standards. He found that the means test is so low that for many people who do not qualify for legal aid, any payment would take them below a poverty level of income. Many people would have to represent themselves, Miller said. He explained that is very hard to discover the number of people representing themselves in serious or complex cases – many in the magistrates’ court may be representing themselves, for example, on straightforward driving cases.
What are the main problems now? Miller said there is an urgent need for more courts to hear cases and increase capacity.
Miller pointed out that there is a reduced number of firms doing legal aid work: there has been a fall of 125 in the past year. A duty scheme collapsed in Cumbria. As numbers drop, the burden on the remaining duty solicitors increases.
Another problem, said Miller, is that each part of the system tends to be looked at in isolation. Last year, the CPS got an increased settlement and that meant that key staff from criminal defence firms left to work there instead. In June 2019, The Law Society recommended a criminal legal aid task force bringing together the entire sector – solicitors, barristers, prosecutors and the judiciary – to help improve the system for all.4Justice on trial 2019: fixing our criminal justice system.
RUI is a major issue as cases are not progressed for months or years on end, leaving suspects and victims in limbo, Miller explained. The Law Society would like to see a national register with a review after four months. A pertinent comment the chat room echoed this concern. Stephen Davies of Tuckers Solicitors wrote: ‘The problem with RUI is that it is impossible to say parliament intended it via the Policing and Crime Act 2017 – it simply was not debated whatsoever. So now we have a new legal outcome with no end date in sight, compounded by lack of payment for pre-charge engagement.’
Bacon asked Miller about a Council of Europe report that looked at expenditure on the justice system as a whole and found that the spend in England and Wales is above average. Miller responded that most European countries have an inquisitorial system but here the lawyers for the parties do a substantial amount of work for the parties in the adversarial system we have so it is hard to compare expenditure. In an adversarial system, lawyers do more work on a case. In other countries, for example, there may be an investigative judge carrying out the work. He also pointed out that we prosecute a higher percentage of people than other countries, so more people need representation.
Miller summarised: the lack of funding permeates all parts of the criminal justice system: police resources, courts, lack of sitting days for judges, the CPS struggle, eligibility eroded and defence practitioners struggle and many firms have given up and will continue to do so. Police use RUI as a back burner. There are delays because of courts not sitting. The CPS are unable to comply with disclosure. Magistrates have to take longer and work to ensure that defendants understand the process. There needs to be adequate funding.
What about comparisons with other common law jurisdictions, asked Bacon. There are key societal differences, said Miller. For example, in this country, because of the size of the financial sector, we have a lot of large fraud trials. Perhaps these expensive trials are not happening in other jurisdictions. There needs to be understanding of the differences.
Bacon asked why the general public are not on board. Miller said that people are supportive of the lawyers they encounter. Generally, people don’t think about the legal system until they are caught up in it. There is also incredulity about fees – people do not believe that there has been no increase for 24 years, never mind that there have been cuts.
Buck then wrapped the session up, thanking everyone for their participation, and a reminder was posted (using the chat facility) regarding the Justice Committee’s call for evidence in its inquiry on the future of legal aid. It must be submitted by 2 November 2020.
The confirmed dates for the next evidence sessions for the Westminster Commission on Legal Aid are as follows:
family legal aid oral evidence session: 19 November 2020; and
civil legal aid oral evidence session: 17 December 2020.
There will be other sessions in 2021: the publicly-funded Bar (likely 28 January 2021); access to justice (likely 18 February 2021); and experiences of junior lawyers – diversity, inclusivity and routes into the profession (likely 25 March 2021).
The commission will also launch a wide-ranging sustainability survey of practitioners and those considering working in legal aid – follow @APPGLegalAid for the latest news.
There will be a lot of information in the public domain. There will be clear-headed illustrations of the problems being faced by all of those in the criminal justice system. Civil law practitioners and representatives of the profession will be heard soon. But will the government hear, and will it take any action?
There was regret that justice minister Alex Chalk MP did not attend the session, with Turner saying it was disappointing.
 
1     Diversity at the Bar 2019, Bar Council, January 2020.] »
2     Justice on trial 2019: fixing our criminal justice system, The Law Society, June 2019. »
3     Priced out of justice? Means testing legal aid and making ends meet, Loughborough University Centre for Research in Social Policy, March 2018. »
4     Justice on trial 2019: fixing our criminal justice system»

About the author(s)

Description: Carol Storer - author
Carol Storer is interim director of LAG. She was director of the Legal Aid Practitioners Group for 10 years until November 2018.