Since the turn of the century, successive governments have taken steps to reduce the cost of legal aid. Although the Government spent £1.76 billion on legal aid in 2019–20, it is increasingly only able to help a smaller proportion of the population on a narrower range of issues.
The Government has said that it is committed to improving access to justice and the sustainability of legal aid providers. Several significant reviews of legal aid are currently underway and are due to conclude this year. Our inquiry sought to set out the core problems within the current legal aid framework and to identify the solutions that could improve the long-term future of legal aid.
In relation to criminal legal aid, the Committee heard concerning evidence from legal aid providers, especially criminal defence solicitors, over the sustainability of the profession. Many firms are not able to recruit or retain lawyers, with a significant number leaving to join the Crown Prosecution Service. At the bar, fewer barristers are able to build their careers in publicly funded work. The structure of the fee schemes does not do enough to support lawyers to provide the best quality of service to their clients, especially at the early stages of criminal proceedings. The reliance on fixed fees for so much criminal work does not reflect the complexity of the cases that legal aid lawyers undertake. The current fee structure is not flexible enough and has not recently been reviewed or updated. Over the last decade there has been a significant decrease in the number of cases coming through and as a result legal aid providers have struggled to survive.
The adversarial nature of England and Wales’ justice system relies upon the existence of a sustainable publicly funded criminal defence profession that is able to provide a high-quality service to suspects and defendants. The quality of that service is fundamental to our concept of a fair trial.
There is an urgent need to overhaul the current system so that providers are paid for all the work they do to support their clients, especially at the early stage of the process.
Civil legal aid was radically overhauled by the Legal Aid, Sentencing and Punishment of Offenders Act 2012. The current civil legal aid framework means that providers are not supported to provide early legal advice, which many witnesses stressed was crucial to preventing an individual’s problems escalating. There is a real need for a more flexible scheme that allows anyone with a legal problem, who cannot afford a lawyer, to access early legal advice. Such a scheme would enable more people to get access to justice but it would also have a positive effect on court proceedings, as litigants in person would be more informed and better equipped to deal with the process. The legal aid means test and the exceptional case funding system should both be simplified and reformed. Civil legal aid providers are facing major sustainability challenges. The rates of pay make recruitment and retention difficult with the result that in many areas there are advice deserts.
There is a strong case for fundamental changes to the civil legal aid system. It should be made more flexible, so that a greater number of organisations can be provided direct support and to ensure that there is a consistent pipeline of legal aid lawyers that are able to help the most vulnerable in society.
The Legal Aid Agency has been accused of having a “culture of refusal” by a number of witnesses. The Agency has taken some steps to improve its relationship with providers and was praised by some for its response to Covid-19. We think that the Legal Aid Agency should be empowered to place more trust in providers and to reduce the amount of unpaid administrative work they are required to do. Moreover, as part of the process of reforming legal aid, the Government should consider adjusting the Legal Aid Agency’s priorities.