The House of Commons Justice Committee report, The future of legal aid. Third report of session 2021–22
(HC 70, 27 July 2021), called for urgent reform for legal aid. The committee found that without significant change, there is a real chance that there will be a shortage of qualified criminal legal aid lawyers to fulfil the crucial role of defending suspects. It also concluded that the government needs to take a whole justice system approach to the reform of the civil legal aid framework (as it did for criminal legal aid) as sustainability issues for providers are sufficiently serious to justify a complete overhaul.
Its 43 recommendations include:
•an increase to criminal legal aid fees for solicitors;
•the restructuring of the criminal legal aid system;
•an early advice scheme for civil legal aid;
•reform of the exceptional case funding scheme; and
•consideration of using the possession duty scheme model in other areas of the civil justice system where there are significant numbers of litigants in person.
The Legal Aid Agency’s (LAA’s) approach was the subject of criticism by the committee. It noted that ’the government risks missing the wood for the trees’ by asking the LAA to prioritise the ‘error rate’ over other considerations – particularly access to justice and sustainability (para 150, page 64). It recommended that the government consider how to empower the LAA to take a more flexible and proactive approach to funding legal aid.
The committee recognised the strength of the suggestion from The Law Society’s head of justice, Richard Miller, that judges should be empowered to make a direction that an individual needs representation and that it should be binding on the LAA to provide exceptional case funding in that case. It found that such an approach could increase access to justice for the most vulnerable litigants and improve the efficiency and effectiveness of court proceedings.
There was continued disappointment with the Ministry of Justice’s approach to gathering data on access to justice:
From the evidence we heard, the data they hold may not adequately reflect the impact of litigants in person on court time and throughput. We remain concerned that the inability to produce high-quality data on the impact of legal advice on access to justice means that the chances of the Treasury granting additional funding for legal advice and representation are slim (para 105, page 46).
The committee concluded:
If the government were to accept the recommendations we have made on how to approach criminal and civil legal aid it will be necessary to address the Legal Aid Agency’s priorities, its institutional capacity and how it uses its resources. The government should consider whether the Legal Aid Agency should expand its data collection and publication in order to better inform the development of legal aid policy (para 155, page 65).