Written evidence submitted by the Law Society of England and Wales to the Justice Select Committee on the future of legal aid
- The Law Society of England and Wales is the independent professional body that works globally to support and represent 200,000 solicitors, promoting the highest professional standards and the rule of law.
- Nearly two years on from the post-implementation review of LASPO, there has been insufficient progress in response to vital recommendations aimed to improve access to justice.
- While the Criminal Legal Aid Review is looking at the sustainability of the profession, the crisis in the criminal defence profession needs urgent solutions or there is a real risk of systemic collapse.
- Legal aid firms continue to face difficulties with recruitment due to low remuneration.
- Our courts and tribunals are undertaking an unprecedented transformation in response to the COVID-19 restrictions and the wider court modernisation programme. The Ministry of Justice should consider what this means for the administration of legal aid now and in the future.
- Administrative burdens across the legal aid system are placing further pressure on legal aid practitioners.
- COVID-19 has presented a significant challenge to access to justice for vulnerable people.
The post-implementation review of LASPO
- In February 2019 the Ministry of Justice published ‘Legal Support – The Way Ahead’ following the department’s post-implementation review of the Legal Aid Sentencing and Punishment of Offenders Act 2012 (LASPO). This document contained a number of wide-ranging proposals intended to mitigate some of the consequences of LASPO. Many of these proposals required further review, research, consultation and in some cases piloting before implementation, which were outlined in the ‘Action Plan.’
- Whilst welcoming these proposals as a step forward, we remained concerned that initially there were no plans to conduct a review of civil legal aid sustainability – which was one of our key recommendations. We welcomed, therefore, the subsequent announcement earlier this year that the Ministry will conduct a review of civil legal aid sustainability, and await with interest further detail on the terms of reference and the timetable for that review.
- The various workstreams set out in ‘The Way Ahead’ document were scheduled for completion between Spring 2019 and the end of 2020. We understand that COVID-19 has been a major factor in the delay, however, most of the workstreams were significantly delayed before the March lockdown was announced. The main outstanding workstreams are:
a) Civil and crime means test review
- The requirements for the legal aid means test have not been updated since 2010 and exclude people on very low incomes. Research commissioned by the Law Society shows that even some people living below a minimum income standard are either financially ineligible for legal aid or cannot afford to pay any contributions.
- The means test review was scheduled to be completed by the summer of 2020 but is still ongoing. The Ministry of Justice have recently recommenced work on the review following a pause of several months due to COVID-19 with a timetable for a consultation on the proposals in the spring of 2021. Whilst we welcome the Ministry of Justice’s engagement, we remain concerned about the timetable and the ongoing impact on legal aid eligibility for many of the lowest income earners, many of whom may be facing pressure due to the impact of the virus on the wider economy. There will also likely be an increase in civil disputes caused by coronavirus.
b) Early advice in civil legal aid
- The Action Plan stated that proposals to pilot and evaluate early legal advice would be produced by autumn of 2019. There has however been considerable slippage, and the workstream was further suspended due to COVID-19.
- Before the suspension, there was still a lack of clarity as to the scope of any pilot regarding the categories of law to be included. The Ministry of Justice initially said that the pilot would relate to housing, but subsequently there have been suggestions that it might also include some welfare benefits advice for Universal Credit reviews. There has been a lack of clarity about how and where any pilot schemes would be established and evaluated. Although we understand that Action Plan workstreams are being resumed, we are not clear how the early advice workstream will develop.
c) Early advice in family law
- The Action Plan pledged to work with the Law Society to explore an alternative model for family legal aid, but as yet it is unclear how this workstream will develop. The Law Society has presented a plan for discussion with the Ministry of Justice and we look forward to working with officials in its delivery.
- The Action Plan also included a proposal to extend the scope of legal aid to cover special guardianship orders in private family law by Autumn 2019. Plans remain to be finalised and the necessary regulations have not yet been introduced.
d) Administrative processes
- A comprehensive review to streamline the regulatory and administrative requirements passed on to legal aid providers to be completed by the end of 2020 has not taken place under the Action Plan. It is assumed but not yet formally clarified that much of this work will be rolled over into the more recently announced review of civil legal aid sustainability.
e) Other outstanding workstreams
- The Action Plan also included proposals to improve signposting to legal support and a more holistic approach to legal support through ‘legal support hubs’ including ‘co-location such as access to advice in primary health care settings.
- These initiatives were all suspended as a consequence of COVID-19. The Law Society is concerned that the term ‘legal support’ is not clearly defined, and whilst we favour initiatives that improve access to advice, signposting and access to general advice and information will not be effective unless specialist legal advice and representation is also available when necessary.
f) Completed workstreams
- We acknowledge that some of the Action Plan workstreams have been completed, which have improved access to justice. These include:
- Restoration of immigration legal aid for separated migrant children;
- Removal of mandatory telephone gateway for debt, discrimination and special; educational needs and the reinstatement of face to face advice provision in these areas of law;
- Release of £3m funding for litigants in person support;
- Release of £5 million fund for supporting innovation; and
- Partial completion of work to improve guidance and processes for Exceptional Case Funding for inquest and non-inquest cases, but further streamlining work is still required.
Criminal legal aid review
- Until the small, targeted measures in the “accelerated items” part of the criminal legal aid review (CLAR) announced in summer 2020, there had been no increase in criminal legal aid fees – not even a cost of living rise – in over 20 years. In 2014 there was an 8.75% cut across the board to criminal fees.
- In 2014 the Law Society commissioned Otterburn Legal Consulting to undertake research on the sustainability in criminal legal aid firms, which showed that the finances of many crime law firms are fragile. Most do not have significant cash reserves or high excess bank facilities. A number of respondents expressed the view that their bank would be unwilling to extend further credit to them. The median net profit from crime alone after the 8.75% fee cut in 2014 was -3%.
- Our research shows that the situation for crime firms has not improved since that report was published, and it is likely to have become considerably worse since 2014, in particular during 2020 as a result of the impact that COVID-19 has had on the ability of the criminal justice system to process cases, and thus for firms to have an income.
- Our 2019 report ‘Justice on Trial’ highlights some of the systemic problems with the criminal justice system, and proposes ways of addressing these issues. We are pleased to see that some of our proposals – such as a review of means testing and an independent review of the sustainability of criminal legal aid – have been taken forward by the Government. There are however still a number of issues that need to be addressed.
- We welcome the recommencement of the CLAR, In particular the independent review into the sustainability of criminal legal aid. We look forward to engaging with the review. It is important to note that in order for CLAR to have impact there has to be significant additional investment in the criminal legal aid system. Without this we are likely to see more firms closing down, and it will be impossible to attract younger lawyers into criminal legal aid.
- We have also asked the government to consider making an interim fee increase to criminal legal aid fees, given the significant delays there have already been to CLAR starting in earnest, and the further delays that there will be before the final report is published. We are concerned that during the time it will take for the review to be undertaken and the report published in what is now likely to be 2022, it might be too late to save many firms from going out of business.
- Government data shows that at 3 June 2020 there were already 124 fewer criminal legal aid firms than the 1,271 there were in 2019. This is a drop of almost 10% in the past year, and far fewer than the 1,861 firms that existed in 2010.
The role of the Legal Aid Agency
- Administrative excess in the legal aid system is a serious problem. This is illustrated by the fact that the administration budget for the Legal Aid Agency continues to remain high at £88.8 million. The processes are onerous, bureaucratic and time consuming. There is a need for simplification so that the system is efficient and effective for providers and the Legal Aid Agency to operate.
- Time is presently spent by practitioners on form filling that could be better spent assisting clients. Undertaking unpaid or poorly paid administrative tasks add an additional financial burden on practitioners who are already under extreme financial pressure. Providers who abandon legal aid work frequently cite the excessive bureaucracy as well as low remuneration, with a resulting increase in legal aid deserts and problems for the public in accessing justice.
- The Client and Cost Management System (CCMS) is the online system used by providers to make legal aid applications. The CCMS system has a history of poor functionality and unreliability. The last major outage, where the system as a whole does not function, took place over several days from the end of June to early July. When these outages occur, this causes major problems for legal aid providers making it far more difficult to submit often urgent legal aid applications as well as bills.
- There are concerns regarding delayed, inconsistent and poor decision making. In a survey of legal aid practitioners undertaken by the Legal Aid Practitioners Group (LAPG) 86 per cent of respondents had experienced problems in obtaining or amending a legal aid certificate; and the same percentage had experienced delays when applying for legal aid.
- There is a perception amongst practitioners of a 'culture of refusal' within the Legal Aid Agency. There is a need for clarity and certainty regarding Legal Aid Agency decision-making for practitioners to be able to operate effectively.
Recruitment and retention problems among legal aid professionals
- Our criminal justice system is facing a crisis following years of underinvestment and neglect. Amongst problems are growing shortages of duty solicitors, and a recruitment and retention crisis in the profession, as older solicitors close their firms or retire, with no younger solicitors entering the market to replace them.
- In 2018 the Law Society published a duty solicitor ‘heat map’ which highlights that there is a looming crisis for criminal duty solicitors. In a number of areas, including Dorset, Somerset, Wiltshire, Worcestershire, West Wales and Mid Wales, over sixty per cent of criminal law solicitors are aged over fifty years old. (Across the whole profession, only 27% of solicitors are aged over fifty). The average of a criminal duty solicitor is nearing 50, and in many regions this figure is even higher.
- Meanwhile, in Norfolk, Suffolk, and Worcestershire there are no criminal law solicitors aged under thirty-five, with only one (each) in West Wales and Mid Wales, and only two in Devon.
- We hope to publish some updated data this year that will complement the 2018 map. It seems likely however that the situation will have become considerably worse, as numbers coming into the profession have remained very low, and there has been a significant exodus to the Crown Prosecution Service, particularly among younger lawyers, after they received government funding for a major recruitment drive.
- This means that in 5 to 10 years’ time there will be insufficient numbers of criminal duty solicitors in many regions, leaving many vulnerable people in need of legal advice unable to access justice. This could have a catastrophic effect on the criminal justice system as a whole, as members of the profession retire and leave a shortage of experienced practitioners. The absence of criminal defence lawyers will leave the State unable to meet its legal obligations, and will create inefficiencies in the courts.
The impact of the court reform programme and the increasing use of technology on legal aid services and clients
- We broadly support the wider HMCTS court reform and modernisation programme, while maintaining that access to justice must remain at the forefront of the programme. This programme has naturally been accelerated in the wake of the COVID-19 pandemic, with widespread changes to court and tribunal processes and how cases are heard.
- While technology has improved efficiency in our commercial courts, we are concerned that there is a risk we can slip into digital as the norm in sensitive cases such as those related to criminal cases, without establishing whether there is an impact on justice outcomes. While technology can improve efficiency, it is vitally important that careful monitoring, due process and robust evaluation of these changes is carried out.
- If people cannot access the internet either due to inadequate hardware, software or internet connection, or if those with legal needs do not have the necessary legal, digital, language or physical capabilities, there is a risk that access to justice will be exclusive and qualified. There should not be a presumption that all court users will be digitally knowledgeable and know when and where to get legal advice should they need it.
- Following the outbreak of the COVID-19 pandemic and the introduction of social distancing measures, courts in England and Wales have rapidly adapted to using telephone and video hearings (remote hearings).
- Certain cases are more suited to remote hearings than others. Access to justice and ensuring that all parties can effectively participate in court proceedings is central to the efficient and fair resolution of a case. Consideration should be given to the parties’ views on whether the hearing should proceed remotely, and whether they feel justice can be served in this way for their particular case. We have particular concerns regarding the use of remote hearings in more complex cases, especially those involving unrepresented litigants, and those involving vulnerable people.
- More broadly, there is an open question regarding how legal aid will work in a more digital justice system. Legal aid fee structures and processes have been designed for court hearings held in person, and if we transition into a justice system with more digital processes and hearings, as a result of the court reform programme or in response to coronavirus, it is important that the legal aid system is reflective of these changes. .
The impact of COVID-19 on legal aid services and clients
- We believe that COVID-19 has had a significant impact on access to justice both in relation to legal aid providers and their clients.
- The Law Society has recently issued a report Law under lockdown: the impact of COVID-19 measures on access to justice and vulnerable people which focuses on access to justice issues for the most vulnerable clients including those detained in prisons, mental health settings and immigration detainees, victims of domestic violence and those at risk of eviction.
- The report refers to housing advice as an area where provider difficulties are particularly acute. This is an area that has experienced significant difficulties prior to COVID-19 and The Law Society has mapped ‘advice deserts’ where legally aided housing advice provision is low or non-existent.
- Legal Aid Agency statistics show that between the commencement of the current legal aid contract in September 2018 and September 2020, the number of firms and organisations providing housing advice has contracted by 26 from 286 to 260. As some of these firms and organisations had more than one office this equates to 47 fewer offices providing these services. In recent months, the Legal Aid Agency has been forced to conduct several further contract tenders both for general housing advice and the Housing Possession Court Duty Scheme (HPCDS) which provides non means tested advice at court on the day of the hearing for tenants and mortgage holders facing repossession. The Legal Aid Agency are currently tendering for housing providers in 15 legal aid procurement areas.
- As far as possible many providers have been able to adapt to remote working and Legal Aid Agency contingency measures have enabled providers to take instructions and complete legal aid applications remotely, and contractual supervision requirements have been temporarily relaxed to permit remote supervision. The Legal Aid Agency did respond promptly in the wake of lockdown to enable remote working and to ensure payment structures were adjusted.
- From a financial perspective some providers have lost income as a result of not being able to offer face to face services, or reduced staffing levels because of the virus. In other areas such as domestic violence there are indications that demand has increased as a result of the increased pressures on relationships arising from the lockdown. A number of providers have furloughed staff and will face difficult decisions now that the furlough scheme has come to an end.
 Affordability of legal proceedings, Professor Donald Hirsch, 2018
 Justice on trial, The Law Society, 2019 [https://www.lawsociety.org.uk/topics/research/justice-on-trial-2019]
 Annual report and accounts 2019 to 2020, Legal Aid Agency, 2020 [https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/902746/Legal_Aid_Agency_annual_report_and_accounts_2019_to_2020.pdf]
 Survey of practitioners, Legal Aid Practitioners Group, 2020 [https://www.lag.org.uk/article/207718/a-survey-from-the-legal-aid-practitioners-group-puts-legal-aid-agency-decision-making-in-the-spotlight]
 Criminal duty solicitors heat map, Law Society, 2018 [https://the-law-society.carto.com/builder/85de6858-77ba-4568-b225-41ffeed3b6df/embed]