Ensuring legal aid has a future
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Louise Heath
Description: APPG Legal Aid logo
October saw the release of the Inquiry into the Sustainability and Recovery of the Legal Aid Sector’s report. Rohini Teather sets out the inquiry’s aims and some of its key findings.
In February 2020, a cross-party group of MPs and peers came together under the auspices of the All-Party Parliamentary Group on Legal Aid, to form the Westminster Commission on Legal Aid. They came from different points along the political spectrum and had different experiences of the justice system, but each had an interest in access to justice and what this meant in reality for their constituents.
Our original intention was to undertake research into the effects of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 on the provision of legal aid in England and Wales suggested by the Low Commission and the Bach Commission. However, what we found, as we planned the Inquiry into the Sustainability and Recovery of the Legal Aid Sector, was that we had a unique opportunity to bear witness as the effects of the pandemic unfolded across the country; to tell the stories of practitioners at every level of qualification and in as many areas of practice as possible. More than anything, we wanted this to feel like an inquiry that belonged to each of them. We hope that we have succeeded in that respect and that the sector feels some ownership of the report that we have produced.
We also wanted to use this opportunity to look at the changes made to legal aid over the past decade and consider three specific issues, ie, whether the legal aid system is:
fit for purpose now, as our communities seek to rebuild themselves after the pandemic, and for the years to come;
sufficient to meet the needs of those it purports to serve; and
sustainable.
The inquiry found that there was no industry standard of either ‘sufficient’ or ‘sustainable’ and explored these themes further in seeking to define them.
Evidence was shared with the commission by practitioners and clients across crime, family and social welfare law in a series of oral evidence sessions from October 2020 to March 2021. Going into the inquiry, we sought to build a comprehensive, quantitative data set of the whole legal aid sector to form a baseline for the Ministry of Justice in the years to come. Thus, the inquiry and its sister project, the Legal Aid Census, sought to map current, former and future practitioners in all of the specialisms covered by legal aid.
We have been overwhelmed by the evidence we heard and received in written submissions over the past year. It has been a genuinely humbling experience to hear of the lengths to which practitioners go for their clients, the demands placed upon them and the state of the legal aid system itself. It is our hope that we captured some of that spirit in the sector as well as creating an accurate picture of what is wrong with the system at this point in time.
What did we find?
It will surprise none of you to read that although the government spent £1.76bn on legal aid in 2019/20, there were significant concerns about access to the justice system. This may be because of a lack of local providers, financial ineligibility for legal aid, or difficulty accessing the exceptional case funding (ECF) scheme. We saw that there was a huge amount of unmet legal need prior to the pandemic and that this need will only grow as we emerge from it. In some areas, this led to a worrying inequality of arms for those unable to access legal advice or representation in the most emotive and challenging of cases.
One of the surprises from our panel of parliamentarians was the common ground among them. They agreed on nearly all of the recommendations made, even those related to fees, which may have felt more controversial prior to the evidence sessions. The recommendations themselves fall into three distinct categories:
fees and financial sustainability;
scope and the need for a formal civil sustainability review to be commenced as soon as possible; and
sustainability of the practitioner base given barriers to entry, recruitment and retention within the sector.
We are conscious that our report and recommendations have been published at a time of compelling and competing demands on the public purse. Where possible, we have tried to provide an indicative cost for each recommendation, based on publicly held information. In total, these amount to several hundred million pounds, but having looked at the evidence and impact of the cuts made to the legal aid scheme over decades, we believe that this is a realistic and necessary sum.
The investment of a few million pounds here and there simply will not mitigate the damage done to the sector over the past two decades or be enough to ameliorate the impact of the pandemic. We remain conscious that both the government and opposition are under pressure to provide cost-neutral solutions, but there must be a recognition across government that a justice system sufficient to meet the needs of the many and not just the few requires investment. If equality before the law is something that we want as a society then we need to acknowledge and accept the cost. It is a small price relative to other areas of public spending and it is one that we believe to be worth paying.
A number of the recommendations were designed to inform the Treasury’s spending review and to make legal aid work more financially viable for providers. We know that over the past two decades, vast areas of law have been removed from the system, rates of pay have stagnated and there have been specific cuts to fees. Witness after witness told us of their need to cross-subsidise legal aid with private work or alternative forms of funding. We heard from barristers struggling to build and maintain careers in publicly funded work.
Our starting point was that while practitioners may choose to subsidise their practices with private income, legal aid work and the rates that underpin it should be sustainable in and of themselves. As legal aid fees have been frozen for more than two decades, we recommend that they be increased in line with inflation, taking 2011 as a baseline. We also recommend that the 8.75 per cent cut in criminal legal aid be reversed with immediate effect. We concur with other reviews by recommending the creation of an independent fee review panel. This would formally recognise legal aid providers as delivering a vital public service and bring the system in line with other organisations such as the NHS.
As an independent inquiry, we have had a certain freedom in the choice of witnesses whom we could invite to give evidence. We were privileged to have spoken to a number of clients as well as the practitioners who serve them. Our access to justice session focused on the experiences of four clients who had to navigate the justice system in the areas of family law, housing and disability discrimination, community care and inquests, and we heard something of the human cost of that.
Practitioners explained that the system inhibits their ability to provide more holistic services. Legal issues rarely occur in neat little packages and practitioners need a degree of flexibility to provide a service that takes into account all of a client’s legal needs. Issues such as employment, welfare benefits, debt and housing often go hand in hand and a decision to reduce a client’s benefit entitlement, for example, can spark a chain of events that leads to them falling into debt and losing their home. To that end, we recommend that the scope of legal aid is reviewed and that certain areas of social welfare law are funded once again under the system.
Witnesses also described the benefits to both clients and the state of advice delivered at an earlier stage. They explained the positive knock-on effects on the fairness and effectiveness of court proceedings and on reducing unnecessary litigation. We agree that it is better for the individual and cheaper for the state to address a legal problem as early as possible. We note that the recent report, Defending the public purse: the economic value of the free legal advice sector (Community Justice Fund, September 2021), suggests that the average cost to the Treasury of those experiencing a legal problem for which they do not seek advice is two-and-a-half times the cost of those in receipt of free specialist legal advice.
A review into the legal aid means test is due to report shortly and one of our recommendations highlights the urgent need for simplification and reform so that those who truly cannot afford to pay for legal advice and representation are able to access the help they need. It is also our view that the ECF system is not fit for purpose and in urgent need of review.
Finally, we looked at the individuals working within the system and the widespread concerns around the recruitment and retention of practitioners. These have contributed to growing advice deserts throughout England and Wales. While improvements have been made through the use of technology and in response to the demands of the pandemic, we believe justice should be available to all locally. This means that clients should be able to access legal assistance in their towns and cities, and also that those entering the profession should be able to do so around the country. There should be sufficient opportunities, recognised career progression and the ability to earn an income that reflects their expertise and the importance of their work. Firms also told us that they struggle to finance training contracts, so we recommend a return to a number of state-funded training periods for solicitors, barristers, legal executives and other such forms of training.
Recent studies have highlighted concerns about the mental health and well-being of practitioners. The profession itself must continue to improve the support available, but investment is needed in a system that places undue pressure on practitioners through low fees and unnecessary red tape.
A continuing role for legal aid
We have reached a pivotal moment in the history of legal aid. Not only has there been some excellent work undertaken into the sustainability of the legal aid system over the past two years by the Justice Select Committee and the Criminal Legal Aid Review, among others, but there has been the recognition in government that such work on sustainability is not just necessary, it is imperative. However, what we found over the course of the inquiry is that the legal aid system as it stands is not sufficient; nor is it sustainable. The government speaks of levelling up our communities but if this is to be more than a catchy slogan, we must ensure that no one is left behind. We believe that legal aid has a significant part to play in this and its role as a safety net in society must be preserved.

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.