Slaughter: Sustainability of system in question
MPs today describe a legal aid system on the verge of collapse – one that “people cannot qualify for or access, and that providers cannot sustainably deliver”.
The justice select committee said there was “substantial evidence” – namely “the poor level of service provision across all categories of law” – that Lord Chancellor David Lammy was failing in his statutory duty to “secure that legal aid is made available”.
“Access to justice in England and Wales has been severely eroded by the declining availability of legal aid,” it warned.
The result was increasing levels of self-representation in the magistrates’ courts, creating an “unacceptably high risk of miscarriages of justice”, while risks to the sustainability of the civil legal aid system “are currently materialising”.
The committee published a damning 80-page report on legal aid today as part of its access to justice inquiry, recommending that ministers urgently prioritise restoring legal aid as an “effective, sustainable and accessible service for those who need it most”.
Best estimates were that up to half of defendants in magistrates’ court represented themselves because they were not eligible for legal aid, including in cases where they faced the risk of imprisonment, it said.
It was a “clear denial of justice” that someone working full-time on the national minimum wage with no dependants may earn too much to be eligible.
In the immediate term, the government must “urgently” implement the findings from the means test review for both criminal and civil, and the Lord Chancellor must use statutory powers to intervene in areas with failing legal aid provision.
“Over the rest of the parliamentary term, the government should institute independent mechanisms for reviewing and uplifting legal aid fees to ensure the sustainability of the sector, and reorganise the objectives and delegated authorities of the Legal Aid Agency around access to justice.”
The criminal duty solicitor scheme was in “a dire state”, with the number of active duty solicitors down 25% since 2017 and only 7% of them under the age 35.
“We heard compelling evidence that this shortage is already affecting police stations and magistrates’ courts, delaying proceedings and placing individual rights at risk. Although recent government funding is welcome, it is unlikely to be sufficient to arrest the decline of the scheme.”
The wider criminal legal aid sector “remains financially unsustainable”, with law firms having to cross-subsidise it with private work. “Also, recruitment and retention problems are acute among both solicitors and barristers.”
The government should set targets for recruitment and retention of criminal legal aid lawyers and take action if these were not met, the report said.
Civil legal aid was “also failing to meet its policy purpose”; frozen eligibility thresholds have created a growing “justice gap”, in which millions of people are ineligible for legal aid but unable to afford private advice or representation.
“We have seen evidence that 76% of single parents with one primary school aged child would fall into this gap. We are particularly concerned that people in desperate situations, including family proceedings involving domestic abuse, may be left without representation because they are in low-paid work.”
The civil legal aid provider base was under “severe strain” due to fees in many areas not increasing for decades.
“We heard evidence that legal aid work in areas including housing, family, mediation, and immigration and asylum is often loss-making. The result is that many providers cannot take on new cases, even where clients are financially eligible.
“Legal aid deserts are a significant problem across England and Wales, leaving people in many areas of the country without the accessible legal support to which they are entitled by statute.”
Reports of cross-subsidy from private work in both criminal and civil were “supported by credible independent research”, it added.
Further, cross-subsidy lowered firms’ capacity to deliver legal aid work “and drives up prices for those ineligible for legal aid”.
The committee argued that legal aid scope was “too narrow and too often prevents early intervention”; this should be reversed, “with particular attention to areas where early intervention can prevent legal problems becoming more complex and costly”.
As in crime, “a long-term consequence of low legal aid fees is a lost generation of future civil legal aid lawyers”.
The committee recommended the government publish a civil legal aid workforce strategy in the next year.
“The government is not thinking strategically about its future supply of lawyers or how to ensure sectoral retention. Risks to the sustainability of the legal aid system are currently materialising.”
The final area of concern was the LAA’s administration of the system. “Providers face heavy bureaucratic burdens, complex audit requirements and outdated IT systems. These problems have been compounded by the recent cyber-attack on the LAA, which disrupted payments and exposed serious weaknesses in its IT infrastructure.
“The government’s commitment to invest in IT is welcome, but the scale and urgency of the problem require faster action.”
The MPs recognised that remote advice could help extend provision, “but it cannot be treated as a complete substitute for local face-to-face services, particularly for digitally excluded or vulnerable clients and for cases involving court proceedings”.
Committee chair Andy Slaughter, a Labour MP, said: “The committee’s report lays bare stark evidence that too many individuals who need legal advice and representation are simply unable to obtain it.
“Across both criminal and civil legal aid eligibility has failed to keep pace with the rising cost of living, with capacity reducing, provision increasingly patchy or non-existent and future sustainability in question…
“A legal aid system that people cannot qualify for or access, and that providers cannot sustainably deliver, is no system at all.”