To ensure legal aid’s sustainability, pay and conditions for practitioners must improve
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Marc Bloomfield
Description: APPG Legal Aid logo
As the oral evidence sessions of the All-Party Parliamentary Group on Legal Aid’s Inquiry into Sustainability have drawn to a close, and we begin writing the report, I’ve been mulling over a working definition of ‘sustainability’ and what this means for the profession. One global pandemic and several lockdowns ago, the Post-implementation review of Part 1 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) (CP 37, February 2019) declared the legal aid market to be ‘operating at sufficient levels to meet demand’ (para 816, page 195). It suggested that ‘more research is required to determine the long-term sustainability of the profession’ but offered us no strategic definition of either term as part of its reasoning. So, what do we mean when we talk about the sustainability of the profession?
I’m no economist, but I would suggest that sustainability is the capacity to endure – to meet the needs of those in practice now in a way that doesn’t compromise the ability of future generations to train, enter and carry on the profession with their own needs being met. The legal aid system should provide a service to the public that is fit for purpose and resilient enough to withstand changes in the market. Practice should provide practitioners with an income commensurate with both their expertise and the cost of providing such a service. It should also be a viable and attractive career path for future generations.
Should legal aid work be financially viable in and of itself? I believe it should, but I accept that the topic may be up for debate. However, at every stage of the inquiry, we have seen that none of these tests are met; that the service provided under the current legal aid scheme is insufficient to meet public need; that the preceding decade of declining investment left the justice system hugely vulnerable at the beginning of the pandemic; and that government is unwilling or unable to put in place measures specific to legal aid providers to help these organisations to stay afloat. In our final session, we heard from junior members of the profession about the difficulties that they face starting a career in legal aid.
What did we hear? As with prior sessions, we sought to build as comprehensive a picture as possible of life at the coalface. Social welfare law is a broad church and our intention through the inquiry has been to reflect experiences from as many areas as possible. To this end, our junior session heard from solicitors from Shelter, Vauxhall Community Law and Information Centre in Liverpool, specialist criminal defence firm Tuckers LLP, a practising criminal barrister and an academic who gave up her practice as an immigration barrister. Their experiences varied, but all five witnesses reported that their practice areas were unsustainable, with uncertain and often inadequate remuneration leading to a recruitment crisis at the junior end of the profession, leaving organisations facing a succession crisis.
We heard evidence from three solicitors who practise in crime, housing and social welfare. One touched on the high cost of the new Solicitors Qualifying Examination (SQE) and the omission from it of social welfare law. All three had faced long and demanding routes into practice, with years spent as paralegals and caseworkers. All three gave evidence about the difficulties that they faced in securing training contracts and qualifying. All three are bright, committed individuals who were able to join the profession only thanks to some additional support from family members, and all expressed concerns about the numbers of others falling by the wayside because they lack this support.
The evidence indicated little improvement upon joining the profession. We don't have robust data on the average salary of trainees working in legal aid, but our witnesses told us that it is closer to the minimum training contract salary both inside and outside London (around £20,000). This will rise upon qualification, but once again there is a lack of transparency and consistency among providers. Charities may pay their newly qualified staff more than £30,000 but a number of witnesses have said that these salaries are unlikely to get much higher, regardless of experience and years of qualification.
At the bar, we heard that conditions improve several years into practice but that it is not possible for all junior barristers to weather those initial few years, where fees are often fixed (and always low), payment dates are uncertain and legal aid work effectively becomes involuntary pro bono work. Stephen Davies, a criminal defence solicitor with Tuckers LLP, referenced research published as part of the Ministry of Justice data compendium1Summary information on publicly funded criminal legal services, Ministry of Justice, February 2021. about the average age of criminal duty solicitors and the numbers of criminal defence practitioners leaving the scheme. In 2019, there were 4,600 criminal duty solicitors in England and Wales,2Ibid, table 4.1, page 48. of whom 2,747 were at least 45 years old.3Ibid, table 4.3, page 49. Note that this figure is calculated from the total number of duty solicitors who were successfully matched to characteristic data (4,360). Over 2017 and 2018, a total of 1,090 duty solicitors left the scheme.4Ibid, table 4.13, page 54. Almost 10 per cent of those joined the Crown Prosecution Service,5Ibid, para 143, page 55. where conditions are better and rates of pay higher. We will be looking into salaries and asking what a sufficient rate of pay is for juniors entering the profession.
As witness after witness has said over the past six months, most social welfare lawyers are driven by a sense of justice. This work is a vocation, but any definition of sustainable practice must still allow them to put food on the table and to pay their bills, to rent a home or apply for a mortgage. Social welfare law is a highly skilled, demanding profession, but the fees paid to legal aid lawyers aren’t reflective of that. We can tinker around the edges for years to come, but until we address that basic fact, the profession cannot be said to be sustainable.
 
1     Summary information on publicly funded criminal legal services, Ministry of Justice, February 2021. »
2     Ibid, table 4.1, page 48. »
3     Ibid, table 4.3, page 49. Note that this figure is calculated from the total number of duty solicitors who were successfully matched to characteristic data (4,360). »
4     Ibid, table 4.13, page 54. »
5     Ibid, para 143, page 55. »

About the author(s)

Description: Rohini Teather
Rohini Teather is head of parliamentary affairs at the Legal Aid Practitioners Group. She is a non-practising solicitor.