Authors:Jamie McGowan
Last updated:2023-09-18
“Will there be any legal aid lawyers left to do the work?”
Marc Bloomfield
Description: YLAL
Speaking at LAG’s ‘Legal aid: fighting for the future’ event in parliament on 27 March 2023 marking 10 years of the coming into force of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, my fellow Young Legal Aid Lawyers (YLAL) co-chair, Isaac Abraham, spoke passionately about the future of legal aid. He described a dilemma witnessed by organisations like ours that hope to encourage people into the sector: we encounter students and trainees who in their hearts want to do publicly funded work, but in their heads know that this is an increasingly precarious option.
Of course, the key step towards addressing this would simply be to increase legal aid rates and broaden scope – something nearly every speaker called for. But, Isaac asked, even in the apparently unlikely event that a government over the next few years can be persuaded to inject the cash required to do either of these things, by this time, ‘will there be any legal aid lawyers left to do the work?’
He wasn’t being over-dramatic. The crisis in recruitment and retention is well documented. The Westminster Commission on Legal Aid’s October 2021 report, Inquiry into the sustainability and recovery of the legal aid sector, and the House of Commons Justice Committee’s The future of legal aid. Third report of session 2021–22 (HC 70, 27 July 2021), both noted the growing difficulty for firms and/or their junior staff to fund legal qualification. They also recommended reinstating government-funded grants for trainees at legal aid firms, which were scrapped in 2010.
Recent YLAL-commissioned research shines a spotlight on this issue in the context of immigration and asylum legal aid. Overstretched & unsustainable: a case study of the immigration and asylum legal aid sector (April 2023), written by Dr Jo Hynes of the Public Law Project, found that over half of survey respondents said they were unable to advance their career in legal aid practice in the way that they would like to, or were finding it extremely difficult. Funding professional qualifications while on legal aid salaries was highlighted as a significant barrier.
In the absence of the much-needed government funding of legal training, the sector continues to fill this gap. The second cohort of students accessing the Social Welfare Solicitors Qualification Fund launched recently. This fund, developed in partnership between YLAL, the City of London Law Society and BARBRI, covers the costs of the new Solicitors Qualifying Examination for students looking to practise in social welfare law. There is also The Legal Education Foundation’s Justice First Fellowship. However, the numbers of people supported by these initiatives are relatively small compared with the previous government-funded schemes.
As well as the increasing funding difficulties, there is also a more basic issue with the student experience as it relates to legal aid: the quality of taught materials on the subject varies significantly between courses. I have experienced this first-hand, studying a civil litigation module at a major law school. In all the online learning materials, there were four slides that referred to publicly funded work. The first began: ‘Community Legal Service (CLS), used to be known as legal aid,’ which is about 10 years out of date.
Too much should not be made of a mistake (which was repeated on the two subsequent slides), but it is indicative of the disregard some providers have for legal aid as a topic. The fourth and final mention came right at the end of the course, regarding the enforcement of orders. This slide reminded students that if their opponent was in receipt of legal aid, ‘win or lose, your client will not recover its costs and may not recover damages’ and that this ‘may affect the whole of your litigation strategy’. That was it.
Of course, many students have a far better experience than this, particularly through more in-depth modules on the full three-year law degree. Additionally, many people aspiring to work in social welfare law get their motivation to do so outside university. According to Legal Aid Practitioners Group’s 2021 legal aid census, 88.4 per cent of students interested in a career in legal aid were influenced by their background or life experiences (We are legal aid: findings from the 2021 legal aid census, March 2022). However, there is a responsibility on universities to ensure that students are being given at least some idea of this vital part of our justice system.
YLAL will continue to lobby for the much-needed investment in the education of future legal aid lawyers. We also hope to do some further work, particularly with our many student members, to look into improving the standard of basic education surrounding legal aid and the areas of law traditionally covered by it. As a minimum, we would hope for all law students to be encouraged at some stage in their education to consider legally aided litigants beyond ‘whether or not they’re really worth suing’.