Legal aid needs urgent reform to secure fairness of the justice system

27 July 2021

Legal aid is in urgent need of reform to protect the fairness of the justice and to ensure that the most vulnerable can have access to justice, a report by the House of Commons Justice Committee has found.

The report warns that a rigid system of fixed fees and low pay is leaving firms specialising in legal aid struggling. The sustainability of legal aid providers is critical to ensure that those eligible for legal aid are able to be supported through what can be a complex and daunting system.

Criminal legal aid firms are finding it increasingly difficult to recruit and retain staff. Firms that rely on publicly funded work are not able to compete with the Crown Prosecution Service, who are able to offer significantly better pay and conditions. The Committee warns that without reform criminal defence services will be unable to provide the high-quality defence that is vital in an adversarial justice system. The Committee argues that the Government should remove the cap on what acquitted defendants can recover from central funds.

The Committee calls for the civil legal aid system to be overhauled. The Committee argues that early legal advice can help to make the courts operate more effectively. The legal aid system needs to be simplified to make it easier for those who eligible to access the services they require. Providers of civil legal aid are also facing sustainability issues, resulting in ‘legal aid deserts’ in certain areas, where people cannot access the specialist advice in for certain issues such as housing, immigration and community care. The Committee recommends that the Government takes a more flexible approach to legal aid funding, so that the providers can be given the support to help the most vulnerable.

The current legal aid means test may also be creating a barrier to justice for some of the most vulnerable in society and impacting the fairness of the justice system. The Government should consider changing the eligibility thresholds and regularly increase them in line with inflation.

Main findings

Criminal legal aid

Without a sustainable publicly funded criminal defence profession, suspects and defendants will not have access to high-quality legal support that good justice depends on.

The report warns that some professions central to the application of fair and timely justice are hollowing out due to the impact of cuts to legal aid. Law firms are having difficulty in recruiting or retaining lawyers, with many leaving to join the Crown Prosecution Service. Fewer barristers are able to build their career through publicly funded work.

Further difficulties are arising due to the way the fee schemes are structured, and are not enough to support defence teams in providing the best quality service to their clients. Fixed fees do not reflect the complex nature of the cases that criminal lawyers undertake. The fall in the number of cases that are eligible for legal aid are also placing providers specialising in criminal defence at risk.

It calls for the current system to be overhauled so that providers are paid for all the work they do for their clients, not an arbitrarily established figure that fails to take the complexity of a case into account.

Civil legal aid

The civil legal aid system is preventing providers from providing early legal advice, causing some individual’s legal issues to escalate when they could have been resolved. The Committee call for a more flexible system that allows anyone a legal problem, who cannot afford a lawyer, to access legal advice. This would not only improve access to justice, but ensure that litigants were better informed to understand court proceedings.

Civil legal aid providers are facing major challenges in sustaining themselves under the current system. Means testing and the exceptional case funding system should also be simplified and reformed. Rates of pay are also making recruitment and retention difficult leaving some areas as legal advice deserts.

The Committee calls for fundamental changes to the civil legal aid system. There should be greater flexibility in how it operates so that a greater number of organisations can access the necessary funding that would ensure consistent access to legal aid lawyers for the most vulnerable in society.

Legal Aid Agency

The Legal Aid Agency needs to do more to move away from a perceived culture of refusal. It should have greater leeway to place more trust in providers and reduce the amount of unpaid administrative work they are required to do. The Government should also reflect on the Agency’s priorities and consider whether it is being provided with the resources to truly support access to justice.

Chair's comment

“In the last twenty years, efforts to reduce the cost of the legal aid bill have hollowed out key parts of the justice system. Fixed fees are failing to cover the cost of complex cases, the number of people receiving legal aid is falling and legal aid firms are struggling to keep going. Careers specialising in legal aid are becoming less attractive and legal professionals are moving to the CPS or private practice instead.

This puts the fairness of the justice system at risk. We have called on the Government to ensure that the legal aid system provides an adequate level of funding to ensure that quality legal advice is available at the earliest opportunity for those in need of it. The fee structure should reflect the complexity of work that is needed and support a healthy legal aid sector. The fixed fee system, which has been left unchanged for twenty years, should end and be replaced with a flexible structure that supports the legal work required on a case.

The legal aid system is there to ensure that everyone has access to justice. If the most vulnerable in society are being left to navigate the justice system on their own then fairness is lost and the system has failed.”

Further information

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