updated on 25 February 2020
Two leading legal aid practitioners give their assessment of this vital area of the legal profession and offer advice to aspiring legal aid lawyers.
Access to legal rights and equality before the law are the bedrock of UK constitutional law. For the poorest in society who cannot afford legal representation, these rights are meant to be guaranteed by the publicly funded legal aid system, but this has been stripped back by funding cuts under successive governments. The legal aid budget was £2.6 billion in 2010-11; it is now £1.6 billion. The reduced budget, combined with the introduction of a means test for legal aid in 2014, has shut people of low socioeconomic status out of the justice system. .
“We are at breaking point, with the system being continually stripped back”, says Vidisha Joshi, managing partner of Hodge Jones & Allen. “It is unsustainable, as well as a false economy, because people who are unable to access legal advice are forced to represent themselves as litigants in person. This clogs up the courts and slows cases to a crawl because litigants in person are, understandably, unfamiliar with how the process works and have no legal training. In other areas, pro bono centres have been pushed to the brink and there has not been any solid research into how many have gone under. This squeezes the government’s resources in other areas, such as the NHS and the Department for Work and Pensions.
Research in 2017 found that people who represented themselves in court were more likely to be found guilty than those with a lawyer. Underfunding has also led to cases where victims of abuse have been forced to face their abuser directly in court.
Cuts in funding have been accompanied by a cultural change in the decision making process for who should receive help. “There is nothing more frustrating than having a client sat in front of you who desperately needs legal advice, but you cannot help them because of a bureaucratic reason,” says Carol Storer, the interim director of the Legal Aid Practitioners Group (LAPG) who led the LAPG as director for 10 years until 2018. “These days it is very difficult for clients to prove their financial eligibility. Many practitioners feel that cases that would have certainly qualified for legal aid in the past are now being denied – there is a sense that the Legal Aid Agency has an ethos of putting up barriers to legal aid and does not believe that people should receive help to resolve their problems.”
Reduced fees for legal aid lawyers
Many legal advice centres have had to close their doors, while solicitors’ firms have had to adapt or face going under. For Joshi, pride at her firm’s continued success does not change the fact that the system overall has deteriorated. “We have been fortunate as a provider of legal aid services in that we have other areas of our business which have effectively stepped in to prop up our legal aid work, where our lawyers have to contend with a very challenging funding situation,” she explains.
“The biggest cuts were introduced in the Legal Aid, Sentencing and Punishment of Offenders Act 2012, but provision has been stripped away over time for decades. Hourly rates for legal aid haven’t changed in 20 years and that simply can’t be right when the costs of living and running a business have increased dramatically.
“It has meant that we have had to adapt and change how we work, which we have managed to do successfully, but that isn’t to say that the environment is any less difficult for us to operate in.”
According to Storer, “the problems, despite their seriousness, are quite easy to analyse. There is a problem with fees where non-profit and private practice organisations are not generating enough money from legal aid work to stay afloat.”
At the Bar, barristers are leaving legal aid work in great numbers because the work is no longer financially viable, with many junior advocates’ fees barely able to cover their travel costs to attend court. Meanwhile, pupils and aspiring barristers are being put off legal aid work, decreasing the supply of new talent necessary to renew the system.
The latest reform to legal aid fees – the Advocates Graduated Fee Scheme (AGFS) – has finally driven criminal defence barristers to refuse new publicly funded cases, severely disrupting to the courts.
The LASPO review and government responses
In 2019, the government completed its long-awaited review of reforms to the legal aid system introduced by The Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO). The review did not make specific recommendations, but in February 2019 the government under Theresa May pledged to:
The government also released the Legal Support Action Plan, which outlined other forms of legal support to help people resolve their legal problems at the earliest opportunity. Measures in the plan include investing in LegalTech, piloting new early-support services and providing more support to litigants in person.
However, May was replaced as prime minister by Boris Johnson in July 2019, who then began the next parliamentary session with a new set of manifesto commitments following an emphatic general election victory in December. Johnson’s government so far appears focused on other justice issues such as reforms to the probation service, curbing judicial review and prisons reform, with legal aid seemingly low down the agenda of priorities.
A year on from May’s government’s announcement, the outlook remains bleak for legal aid. Many legal aid lawyers have left this area of the profession to find work elsewhere, as the current fees system makes it financially unviable to do the amount of work necessary to properly represent the client. The number of lawyers prepared to advise arrested suspects in police stations as part of the duty solicitor scheme is also falling. The same is true of expert witnesses, with fewer prepared to provide their expertise for low legal aid fees.
Advice for future legal aid lawyers
Although the situation is extremely challenging, aspiring lawyers who are passionate about access to justice and the rule of law are needed now more than ever – and with the right skills, it is still possible to make a career in this area of work. “Anyone thinking about a career in legal aid has to be organised, as you not only have to be a good lawyer who understands the law, you need to be able to interview your clients, understand their case and give them a clear steer about what can be achieved and you also have to understand how to work within the system so that you are funded,” Storer advises. “That means checking up on the detail of legal aid contracts and relevant guidance and regulations, so that you can take on cases that are eligible for funding with confidence. Now picture doing that when you have a desperate client in front of you who is affected by a mental health problem or has a drug or drink addiction, or has English as a second language. It can be so difficult to gather evidence or prove someone’s financial eligibility when their life is chaotic, but this work is so necessary. It is also incredibly rewarding.”
For Joshi, people with the qualities to succeed in publicly funded work should not abandon their ambition, despite the current difficulties: “I think that things will change. There are good firms practising in this area and they will continue to do so. I don’t believe that students should be put off. Yes, they will have to accept that the salary is less than in some other areas of law. However, you will do extremely interesting work and the work that you do will change people’s lives. The cases in this area of law are often ground-breaking.”
Joshi also shares her practical advice on getting started: “It’s important to gain experience through organisations such as Citizens Advice and the law centres network. This will give you first-hand exposure to what you would be facing day-to-day as a legal aid solicitor.
“The other thing to bear in mind is that while legal aid lawyers are passionate about the good work they do, they also need to be aware of the commercial realities of running a business, particularly in relation to how cases are funded through legal aid. It is vital for future lawyers to make themselves aware of the restrictions around legal aid and how to provide high-quality legal services within those parameters.”
Josh Richman is the senior editorial manager of LawCareers.Net.
Keep up to date with the criminal barristers’ strike and the government’s review into LASPO with LCN’s News section.