An independent review of legal aid by a cross-party group of MPs and peers delivered its highly anticipated report last October, and it did not make for happy reading.
The Westminster Commission on Legal Aid Inquiry into the Sustainability and Recovery of the Legal Aid Sector, reported that the legal aid system was neither “sufficient” nor “sustainable”.
The commission was set up by the All-Party Parliamentary Group on Legal Aid in May 2020 to carry out an independent review of the viability of the scheme post-pandemic.
Members included former Labour justice minister Lord Willy Bach, cross-bencher Lord Colin Low, who gave his name to a previous commission on legal aid, Baroness Helena Kennedy QC, and Conservative MPs Laura Farris and Gareth Bacon. Labour MP Karen Buck, chaired the commission, Conservative MP James Daly was vice-chair.
The Westminster Commission recorded how all of its witnesses “described a palpable crisis in relation to the health and vitality of the legal aid workforce”.
Among the problems were “perceptions of an ageing demographic, difficulty with succession planning, fewer junior lawyers coming through, declining numbers of positions” and “an inability of firms to justify the costs associated with training the next generation given the current fee structure”.
At CILEX we know that there is much work needed to rebuild a healthy pipeline of practitioners. The sustainability of the sector, which is neither attracting nor retaining talent, is in crisis.
We made it quite clear in our response to the Ministry of Justice’s call for evidence to its Independent Review of Criminal Legal Aid earlier this year that working as a criminal legal aid lawyer, for example, no longer represents a sustainable career path for our members.
The numbers speak for themselves. We have seen a steady decline in the number of CILEX practitioners choosing criminal law as their long-term career path, with 50% fewer members electing to study criminal law than in 2012. This contrasts with those qualifying into areas such as conveyancing and civil litigation, where numbers of new entrants have continued to rise.
Clearly the long-term disjointed approach to addressing deficiencies that has prevailed across the legal aid sector has contributed to this.
The issue seems particularly acute in the junior Bar, the Bar Council gave evidence to the Commission that “the average age of those who begin to earn a return on the huge debt levels they have built up [is] 33 years old”.
Other witnesses “spoke of the difficulties that juniors had faced over the pandemic”, with one citing “colleagues who had to claim universal credit or grants from their Inns of Court benevolence funds due to their drop in income”.
Hardly a ringing endorsement to enter the profession.
On retention, many legal aid lawyers “reported losing juniors or colleagues to local authorities and the CPS where salaries are higher and there is a perception of more stability and a better work/life balance”.
The commission said: “The overwhelming consensus from the evidence that we heard throughout the inquiry was that legal aid work and the rates payable are not financially viable for practitioners.”
CILEX members practising in legal aid firms are also gravitating away from the sector. Anecdotal testimonies and declining numbers, suggest many are leaving the profession altogether, a trend that is clearly down to the evident unfavourable working conditions and remuneration rates our members face.
For those that are keen to build a career in legal aid, additional barriers to progression face talented CILEX lawyers. Working in criminal law, this applies to both defence and prosecution. This includes rules that prevent CILEX practitioners from becoming Crown Prosecutors, a glass ceiling for many who assume the role of Associate Prosecutor currently; and for those in defence, a lack of recognition entrenched within the Criminal Litigation Accreditation Scheme, which fails to account for the level of training and competence that CILEX Advocates possess.
These restrictions have the notable effect of limiting opportunities and career growth for CILEX lawyers. The opportunities available to students and junior lawyers in pursuing a career in legal aid are restricted from the outset, clearly driving some out of the sector and harming the pipeline of talent needed to meet the demands of the justice system.
We will continue to lobby the government on these issues.
Legal aid rates
The Commission noted that legal aid rates had not been increased since 1996, and recommended increasing them by inflation, using 2011 as a baseline. According to the services producer price inflation index, there had been a 25% rate of inflation since then.
The commission estimated the cost of increasing civil and family fees by inflation at £171m per annum, and criminal legal aid fees at £224m.
It said that the fee cut of 8.75% imposed in on criminal legal aid lawyers in 2014 should also be reversed, at a cost of £60m per annum.
From what we see at CILEX, it is not just about the fee rates at an individual level, but the financial feasibility for many small to medium sized firms trying to enter the market who are locked out of legal aid contracts.
The tendering process is routinely extended creating stagnation in the supplier base, and standard contract terms are overly rigid. Onerous requirements around compliance and auditing, the need for a physical office space despite the benefits of remote working, and payments received in arrears point to high start-up costs and ongoing overheads that make legal aid work an operational reality for only those firms with a sizable budget to absorb this expenditure. It needs to be made much more attractive. The system needs to open itself up to a wider range of smaller, more dynamic firms to improve its resilience and ability to adapt in meeting the needs of the public.
The APPG report concluded that an independent legal aid fee review panel should be established, which would carry out annual reviews of legal aid salaries.
The commission recommended that there should be a return to publicly funded training grants for solicitors, barristers and CILEX lawyers, while not specifying how many there should be.
It also called for the restoration of public funding for early legal advice to pre-LASPO levels in debt, employment, welfare benefits, immigration and private law family cases. It recommended public funding be reinstated in housing disrepair cases, extended in domestic abuse cases and available to bereaved families at inquests.
This inquiry echoes much of what many of us in the sector have been saying for some time. The problems are multifaceted.
More generally, all parts of the legal aid system need to work in unison to create more efficient processes. For example, the level of auditing and compliance requirements on legal aid firms could be streamlined if different parts of the system talked to one another and recognised each other’s functions.
Responding to the report, a Ministry of Justice spokesperson said: “Legal aid is a crucial part of our justice system which is why we are reviewing the means test and investing £51m into the criminal legal aid sector. We are determined to make the legal aid system fair and proportionate for all and will publish our findings from the Criminal Legal Aid Independent Review before the end of the year.”
As a profession, we owe it to the public to hold the government to account on this and we’ll be monitoring carefully the investment into criminal legal aid and the findings of the independent review.
Linda Ford, CEO of CILEX.