Authors:Chris Minnoch
Last updated:2023-09-18
“The government won’t be conducting comprehensive research on the legal aid sector, so we’re doing it ourselves.”
Marc Bloomfield
Description: LAPG logo
I remember distinctly the end of the LASPO1Legal Aid, Sentencing and Punishment of Offenders Act 2012. review conference that we hosted in June 2018. After a series of delays, the Ministry of Justice (MoJ) had initiated a formal process and was making engagement noises, meeting with those from across the sector and apparently reading everything that had ever been written about the post-LASPO landscape. Concerned about the MoJ’s ability to reach those at the coalface, Carol Storer (then LAPG’s director) pulled a conference out of her magician’s hat in a matter of weeks. Over 200 people gathered to share their expertise and experience with the MoJ. Remarkably, towards the end of the day, a senior civil servant, bemoaning the absence of systems to collect reliable, comprehensive data, asked if providers could do more to gather the information that the government lacked. Six years after a government undertaking to review the impact of LASPO, after thousands of pre-enactment consultation respondents spoke out about the likely negative impact, with damning reports published each year since, the government was asking the sector why there wasn’t better data. You can imagine the response.
It was a classic manoeuvre. The one organisation with the resources and systems to collect data abdicating all responsibility for failing to do so, presaging a post-implementation review (PIR) report (Post-implementation review of Part 1 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO), CP 37, MoJ, February 2019) that was lengthy but mostly devoid of any real analysis and without a hint of contrition.
The PIR even went as far as claiming (at para 816) that the market was operating at sufficient levels to meet demand. How on earth trained professional analysts came to this conclusion is beyond me. I haven’t met a single practitioner who agrees with this and the government hasn’t even tried to quantify demand. Fee-earners are exhausted, organisations are disappearing or at risk and desperate clients are being turned away. But there was at least a recognition of the need for more research to understand LASPO’s impact on civil and family legal aid.2A formal review of criminal legal aid was announced a few months before the publication of the LASPO PIR in February 2019 but rolled into the series of recommendations that formed the Legal Support Action Plan.
Two years on, where is that research? We asked at the time how these critical issues would be assessed and received vague responses. The publication of the Legal Support Action Plan (Legal support: the way ahead, CP 40, MoJ, February 2019) revealed nothing of substance to understand what was driving providers out of the market and who, if anyone, was helping the hundreds of thousands of clients now locked out of legal aid. Some useful information has been shared by The Law Society, The Bar Council and the Crown Prosecution Service, and has led to the recent publication of a data compendium about criminal legal aid. But this is existing (now dated) data, not new research, and those holding the information were doing so for reasons other than understanding the sector’s viability.
It has become clear that a stretched and under-resourced MoJ won’t be carrying out comprehensive research, so we have decided to do it ourselves. After a year of planning, we have launched the Legal Aid Census – the largest-ever cross-sector research project about the legal aid workforce. We have thrown our own resources into this because having robust, irrefutable data about who is doing legal aid and the challenges that that entails seems to be the only way to convince government of the need for major reforms and investment. We are grateful for backing from The Legal Education Foundation and The Baring Foundation. Critically, we have assembled a team of independent researchers from Cardiff University, Newcastle University and UCL who have designed the research instrument and will analyse the results.
The census is, as the name would suggest, for everyone in the sector: barristers, caseworkers, costs lawyers, managers, paralegals and solicitors. We plan to reach all those involved in the management or delivery of publicly funded advice and representation. We will gather demographic information but also seek to understand issues like the connection between fee levels and commercial viability, retention and succession planning. It is also for aspiring and junior legal aid lawyers, so we can assess the barriers to a career in legal aid. And we are reaching out to those who have given up or been forced out of legal aid in recent years, to understand why. The census runs from April to June and the academic team will report in early autumn. This will be a crucial element of our response to the Independent Review of Criminal Legal Aid and to influence the MoJ’s nascent review of the sustainability of civil and family legal aid. It is closely aligned to the All-Party Parliamentary Group on Legal Aid’s Inquiry into Sustainability.
Momentum for positive change is building as the sector continues to suffer from decades of underinvestment and the brutal consequences of the coronavirus pandemic. The MoJ is aware that many providers are on their knees and that those needing legal help routinely fall through the cracks. We do not want to be undermined by a lack of robust data, so we need everyone across the sector to support this initiative. If you are a legal aid lawyer or support someone who is, please participate in the census and provide us with the data we need to convince the government to act now to save legal aid.
1     Legal Aid, Sentencing and Punishment of Offenders Act 2012. »
2     A formal review of criminal legal aid was announced a few months before the publication of the LASPO PIR in February 2019 but rolled into the series of recommendations that formed the Legal Support Action Plan. »