Legal Aid Sustainabilty : Submission to Parliamentary Committee
My name is Robbie Ross . I have practised as a Criminal Defence solicitor since 1985 with the last 20 years spent almost exclusively as an HCA in the Higher Courts. I established my own firm in 1994, first practising under the title Ross Solicitor, and since incorporation in 2009 as Ross Solicitor Ltd. The firm operates in Swindon Wiltshire and presently employs a total of 12 people; we also utilize the services of several independent police station agents. 99% of our work is legally aided. I am also a Peer Reviewer in crime for the LAA.
A question of my own to start: What does sustainable mean? Are those in Government now and in the future committed to both a fair, efficient and accessible Justice System, juxtaposed with a comprehensive system of legal aid envisaged by those who had the foresight to pass the first Legal Aid and Assistance Act after the Second World War?
Assuming the answer is yes, then one needs to consider whether there will be sufficient professional resources to meet the task the future holds. Starting from that premise, I feel the Committee needs to consider first rather than last, that the critical challenge over the next decade is to ensure that there is a genuine future for a Justice System many continue to claim is ‘world leading’.
It is perverse to consider the six headings we are asked to address as if they were mutually exclusive of each other.
What the impact of Covid 19 has shown is that that system as a whole, Criminal and Civil, is teetering on the brink of collapse for a myriad of reasons. Many respondents will simply bang on and on about money, and especially the amount of money that legal aid practitioners are paid. Since LASPO was passed and indeed before that when the Carter Report was published, legal aid lawyers have made the mistake of making the discussion revolve around how much we are paid. Whilst that is part of the problem it is by no means the whole story.
The passing of LASPO saw areas of legal need become areas of unmet need, especially in the Civil field. It is sometimes forgotten that the original Legal Aid Act was passed to ensure that the disadvantaged were empowered, such that the individual, whatever their means, had equality of arms in the face of the State. LASPO began a dismantling of that right; it also prefaced a huge reduction in the fees that were paid to legal aid practitioners, reducing their ability to provide the sort of Rolls Royce service that all citizens have a right to when involved in the Justice System. Ironically that Rolls Royce service is something the State [through the LAA and Peer Review] still demands of legal aid practitioners whose reward is now pegged at 1997 levels in terms of pounds shillings and pence. Over the last 15 years or so we have seen a drastic reduction in the Court Service with many local Courts disappearing such that the cherished ‘local’ element in access to justice has disappeared. Police and Prosecution funding was cut, Probation funding was cut and Prison Service funding was cut too. The ability of Local Government to assist [Social Services,Housing] was reduced. Condign austerity was imposed across the Justice System resulting in the near broken system we now have.
I am not some Ivory Tower academic spouting from the comfort of a tenured post in a leafy University – I am someone whose whole working life has been within the Justice system so I am talking first hand from the coalface not anecdotally . I am genuinely worried, first as a citizen and second as a lawyer, that we are going backwards fast and that if change isn’t instituted soon it will be too late.
My experience is predominantly within the Criminal Justice system but because many of my firm’s clients are disadvantaged in many ways one becomes acutely aware of the level of the unmet need in other areas. They have problems accessing proper social care, housing, education, mental health treatment, or help with employment problems – the list is endless and is a consequence of insufficient account being taken by Governments of all complexions of how important the Justice system is. Democracy isn’t based solely on people having the right to vote every few years. The foundation of a fair and democratic society is a Justice System that ensures that everyone has the right to equality before the law, whoever they are, good bad or indifferent. Once our Society allows different treatment for people before the law we cease to be a democratic society.
The role of a comprehensive Legal Aid system is to attempt to redress any inherent balance. In order to do that the State has to pay for it. The irony of the austerity cutbacks across the Justice system is that the much vaunted importance of victim’s rights suffers enormously. If all areas are underfunded then victims don’t get justice either. On a micro level in my own area, the West Country, a very large percentage of people live over an hour from the nearest Court Centre – consequently its difficult for victims to come to a trial in say Salisbury when they live near Swindon; on public transport a journey of 40 odd miles can take over two hours. When they get there [if they bother] they often find three trials all listed in the same court so it’s often inconclusive and often they vote with their feet and don’t go. Likewise defendants often cannot afford to get to a court miles away so fail to appear meaning huge expense arresting them and getting them into court – but too late for that trial that someone may have travelled all morning for. It all adds to inefficiency and it’s a consequence of years of under funding.
The list of such micro examples I could give as a consequence of underfunding across the board and across all agencies would fill a book – the Secret Barrister has already written two books and he/she/they have apparently only been in the system a handful of years, not 35 years like me! I know that practitioners in the Civil system would give parallel experience.
Technology can be an adjunct to change and go some way to making access easier but again it has to be properly funded, it has to be both accessible and understandable, and it has to be thoroughly tested and piloted before implementation. Great strides have been made in the Crown Court and Civil courts since March of this year but already constraints are being put on the use of video technology [CVP] such that physical attendance is being again suggested as the norm with remote access at a Judge’s whim. Whilst technology can never replace the localism that gives real access to the Justice process it can at least be an aid. We have to develop the use of digital technology but again see it as a part of a much needed holistic approach to the whole Justice system.
In order to rebuild a Justice system fit to deliver equality before the law in the 21st century, we as citizens require a Government to exhibit vision, thoughtful planning and investment. All sectors, all stakeholders in the system, need to not only be listened to, but feel they are being listened to. That is not happening presently.
This Committee is interested in the ‘Sustainability’ of Legal Aid. Could I turn the premise on its head for a moment: without a sustainable Justice system and the lawyers required to provide the service where will the need for Legal Aid arise? That is not a daft premise. It is an empirical fact that the number of firms doing legal aid work generally has reduced drastically since 2010 when funding cutbacks started to bite; LASPO accelerated that process by reducing availability of legal aid in many areas of law; further cuts [the infamous 17.5% across the board] to CDS [ Criminal Defence Service ] spending immediately thereafter simply made the position worse. Covid has had a further impact and the reality the State now faces is a situation where around 1000 firms nationwide will be left to provide CDS services. I cannot comment on the Civil sector but from speaking to civil practitioners the situation is just as critical.
Any ‘industry’ can only thrive and progress if it is able to invest in training and people. There is little or no leeway within the CDS to do that. If one takes a snapshot at those providing CDS services, both within the solicitor’s profession and the independent Bar, what one sees on the whole is practitioners who are nearing retirement – the average age of a duty solicitor in the South West is 50+ for example. The number of young [ less than 10 years call] members of the junior Bar doing criminal defence or prosecution is vastly reduced from the position 20 years ago, and the number of more senior members of the Bar [QC or 20 years + call] who have applied for and taken positions on the Bench has risen dramatically over 10 years. Juxtapose that with the number of Training Contracts for trainee solicitors in CDS firms – if you can find any anywhere you will be fortunate. The question therefore is how do we make the whole system more sustainable. We do that by making the practise of Legal Aid work, either as a Solicitor or Barrister, attractive enough to stimulate some interest amongst budding lawyers. Concomitant with that is some ability to provide opportunity. One cannot do that if a firm is receiving an hourly rate for often difficult work pegged at the same level as 1997. If members of the Committee were having an extension built to their house, needed their car repaired, or a heating system installed what answer would members get when the supplier gave them a 2020 estimate for the job and the member told them they would only receive the 1997 figure? Exactly – the job would not be done. This is the reality the Justice system faces.
Without investment firms cannot thrive and train future professionals; without investment in the Police / Probation / Prisons / Courts those areas will stagnate. We already had a terrible backlog in the CJS when Covid struck ; likewise in the Family and Care Civil system. That is now amplified – hence why I started by saying that the present crisis has brought the problem into stark contrast. ALL areas , all stakeholders need support. It is ironic that the CPS were given a relatively small amount of money to recruit several hundred new lawyers which they were able to do – and where did most of them come from? From those working in the CDS or at the junior Bar. Why? Because the pay is better, the hours are better, the pension and holiday are guaranteed and sickness is better catered for. In other words a more certain future. This unintended effect serves to demonstrate just how inter-connected the stakeholders in the system are.
More resources generally across the entire panoply of the Justice system makes justice more accessible and ultimately fairer all round. Within the Criminal Justice system more resources means better policing, better access for victims, a more efficient Court system with smaller backlogs and an increased ability of practitioners within the CDS to advise and represent people properly – and all in the longer term. Surely that will then lead to a more sustainable Justice system that benefits all citizens.
This Government has had to find resources to ensure that the economy does not wholly collapse as a consequence of Covid. That has meant paying out many billions to support industries that are not ‘essential’ to the very fabric of a democratic society – frankly, it is not essential to the continuance of a just Society that people can go out to a restaurant to have a meal, especially when many disadvantaged people can’t anyway. That isn’t meant as a trite example but the Eat Out scheme cost a good deal of Government money.
The entire Legal Aid budget in 2010 was around £2.5bn. By 2018 the total spend was hovering around £1.6bn. The need for professional legal assistance during that time had not diminished but the ability of the CDS to meet that need had. The level of work done by firms like ours has remained stable for many years but to continue to do it in the current conditions is becoming very difficult – there is simply no margin to allow firms to expand, nor to invest in training new people for the future. Indeed all practitioners involved in the CDS were in survival mode before Covid – the situation now is appreciably worse.
I am not asking to receive funding that puts firms on hourly rates approaching normal private client rates [ as a contrast the normal hourly rate in Swindon for a standard divorce is north of £225 per hour]. However if the cuts that were imposed post 2010 were reversed it would go a long way to seeing long term viability restored. That is likely to be the case across the board for those providing legal aid services within the Justice system. In other words around £1bn. Adding in some funding to allow firms to recover from the effects of survival mode spanning the last 10 years might add £500m. In the scheme of things presently that is not a huge ask to ensure the survival of a fair Justice system.
It would be very easy to go round and around quoting figures and anecdotal evidence . The bigger representative bodies [ Law Society , Bar Council etc ] are better placed to do much of that. What I am trying to contribute is a perspective gained from day to day involvement at the coalface of the Justice system. Experiential evidence of interacting with all the different agencies and stakeholders is invaluable if this Committee is to ensure an holistic consideration of the task in hand.
The need for a fresh approach is critical if the Justice system is to survive. I am happy to appear before the Committee if it desires to hear from an individual practitioner who has experience both as an Advocate in all courts and as someone who has operated a firm both as a sole practitioner and as a co director of a now limited company.
Let me end on this: It is my sincere belief that the importance of the Justice system is very often forgotten in this country of ours that has always claimed to have given the world Parliamentary democracy; forgotten because we all take a fair justice system for granted . It’s frankly what most people now alive have always known . An important element of that emanates from the passing of the Legal Aid and Assistance Act by the Atlee Government in 1949. It bears repeating that that Act was passed with the general support of the Opposition – all sides saw equality before the law as paramount. The Rushcliffe Committee of the House set out a number of criteria which are still wholly relevant today and the Attorney General, Hartley Shawcross described it as :
‘…a charter of the little man to the British Courts of Justice, without regard to the question of their wealth or their ability to pay’
Lord Beecham described the Act as:
‘…one of the great pillars of the post war welfare state’
When I left Warwick University in 1979, Paul Weller was writing a song that included the line, ‘the public gets what the public wants’. What I wanted then, as now, was a fair society to work within as a lawyer – and I have always chosen to work in the legal aid field because it matters. I feel sure that what the public does NOT want is a broken Justice system.
I trust that this Committee will take note of the words from over seventy years ago – sometimes it is not such a bad thing to look backwards in order to move forward .