Dire straits for civil and criminal legal aid

The Public Accounts Committee (PAC) is hearing evidence today on its inquiry into Value for Money for legal aid following the National Audit Office’s (NAO) damning report.

The NAO report looked across criminal and civil legal aid. It highlighted that spending on legal aid had fallen by 28% between 2012/13 and 2022/23 because of reforms in the Legal Aid, Sentencing and Punishment of Offenders Act (LASPO) 2012. However, the Ministry of Justice (MoJ) could not demonstrate that these reforms represented a spending reduction overall and therefore any savings to the public purse.

The PAC inquiry presents an important opportunity to take a much-needed holistic view of our legal aid system.

The underlying problems across criminal and civil legal aid systems are the same, as we at the Law Society have repeatedly stated in the years since LASPO came into effect.

Recruitment and retention

Both criminal and civil legal aid are suffering an urgent recruitment and retention crisis.

Since 2017, more than 1,400 duty solicitors have left criminal defence, many in search of better pay and conditions. Data shows that just 4% of criminal legal aid solicitors are under 35 years old and our members tell us they are struggling to recruit and keep young people in this field of work.

In civil legal aid, the number of solicitors and not for profit providers has decreased by around 40% in the last 10 years. Whilst an initial reduction of firms was expected after the LASPO cuts, the continued year-on-year closure of legal aid firms demonstrates the work is simply no longer financially viable and firms face similar challenges holding on to junior staff. Fees for civil legal aid work have fallen by 49% since 1996.

The result of falling numbers of legal aid solicitors across both areas of law are systems that are failing to deliver people’s constitutional right to access to justice.

In criminal legal aid, we have highlighted that the shortage of duty solicitors at police stations is leaving people without legal representation. Meanwhile, large swathes of the country are now legal aid deserts, where people cannot access civil legal aid locally because of a lack of providers.

The consequences of this to people’s lives are huge. Delays in police investigations where representation in custody is not available means delayed justice for victims and their families. It also means there is as an increased risk of miscarriages of justice for those accused.

Without access to civil legal aid, more families will lose their homes, fall into debt and be trapped in abusive relationships.

The findings of the NAO report, that cutting back legal aid has 'shifted costs within government' rather than saved them, is therefore no surprise.

The Law Society is fighting hard on both fronts to prevent criminal and civil legal aid from collapsing.

The government’s failure to listen to the evidence we presented to Lord Bellamy’s review forced us to take it to court to seek a judicial review of the government’s decision not to give criminal legal aid the recommended 15% increase in fees.

The judgment found that the Law Society had presented an 'impressive, compelling body of evidence' which demonstrated a 'system slowly coming apart at the seams.'

It concluded that 'unless there are significant injections of funding in the relatively near future, any prediction along the lines that the system will arrive in due course at a point of collapse is not overly pessimistic.' While the lord chancellor has called the judgment 'sobering' and 'striking', we are yet to hear what he will do about it.

The Civil Legal Aid Review presents an opportunity for the government to learn from its mistakes.

The Law Society’s membership and not-for-profit civil legal aid providers have given the review all the evidence it needs. It is vital that the MoJ acts on the evidence and provides the investment needed to protect civil legal aid from collapse.

Nick Emmerson is president of the Law Society of England and Wales