Civil legal aid reform: restoring access to justice or running out of time?

While revenue generated by UK-based legal services has increased by 7.7% year on year to £47.1 billion in 2023, the civil legal aid system is on its knees and has been for some time. Despite recent positive government announcements on funding for legal aid, and the recent launch of a further consultation, the continued strain on the legal aid sector suggests that unless swift and decisive action is taken, and innovative solutions found, it may be too late to save civil legal aid.

At a fringe event at the Labour conference in Liverpool in September 2024,  the new Lord Chancellor, Shabana Mahmood, said the government would “restore and reform” justice. While acknowledging that funding was the answer to addressing many of the problems in the legal system, she also said that “difficult choices” would have to be made. Two months later, Mahmood announced plans for £20 million to be invested into the civil legal aid sector every year, with other announcements for funding for criminal legal aid in October and December. 

While the civil proposals are billed as ‘the first increase in civil legal aid funding in almost 30 years’, the proposal is still subject to yet further consultation on increasing legal aid fees for those working in the housing and immigration sectors. Not only that, but while implementation is planned to start in 2025-26, costs will not be scaled up to £20 million immediately, but are planned for 2027-28, so some years away. Fees in other categories have not yet been considered, although there are plans to do so later this year.

With a fragile civil legal aid system that has been underfunded for years, a tired, frustrated and slowly withering workforce, and a sector that is far from appealing to new entrants to the profession, there is clearly a long way to go before we have a healthy and sustainable legal aid system. Is this too little too late?

A system in crisis

The Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) came into effect in 2013 and introduced substantial reductions to the scope of and eligibility for legal aid, as well as fees that would be paid to lawyers doing legal aid work.

It is well documented that this has had a disproportionate impact on disadvantaged groups who are not able to fund their own legal representation and who are left to navigate legal processes themselves or, more often than not, face ‘referral fatigue’ where they are referred to various not-for-profit organisations for free legal help only to be referred back to where they started due to a lack of capacity. This has had both a normative and practical impact. Individuals are not able to access their rights, which goes against rule of law principles and, further, legal problems tend to escalate and snowball into other problems, impacting both the individual and often other state resources, such as the NHS.

The evidence on the nature and extent of the problem is compelling, and has mounted since LASPO was implemented. Earlier reports include Warwick University’s Centre for Human Rights report on the impact of cuts to civil legal aid on practitioners and their clients in 2013, Amnesty International’s ‘Cuts that Hurt’ report in 2016, the Bach Commission ‘The Right to Justice’ report in 2017, the Equality and Human Rights Commission report on the impact of pathways to justice in 2018, among others.

In 2019, the government’s own post-implementation review identified emerging themes, which included that legal aid scope changes were undermining value for money, that people who need legal aid cannot access it, that the exceptional case funding scheme (intended to act as a safety net to ensure that legal aid was available when a case was out of the scope but an individual’s human rights were breached or at risk of being breached) wasn’t working, that fees for legal aid work are inadequate, that there had been an increase in litigants in person generating cost, as well as the existence of advice deserts. This was further evidenced in the Westminster Commission on Legal Aid report on the recovery and sustainability of the sector in 2021 and ‘We are Legal Aid’ and findings from the Legal Aid Census in 2022. The Law Society’s heat maps illustrate the fact that even if individuals are eligible for legal aid, they will be hard pushed to find a legal aid provider, due to the increase in advice deserts as a result of practitioners and firms finding it impossible to survive in the current climate. It is of note that the National Audit Office’s 2024 report on the management of legal aid expresses concern that the ‘MOJ continues to lack an understanding of whether those eligible for legal aid can access it’ and about its ‘reactive approach to market sustainability’.

The legal profession has done its bit with both strike action and legal action over the years. Of note is the recent judicial review claim brought by Duncan Lewis against the Lord Chancellor in June 2024 over the failure/refusal to increase legal aid rates for controlled work in immigration and asylum or take any other action capable of addressing the serious problems with the provision of such legal aid in a timely and effective way. The case settled in September on the basis that the Lord Chancellor confirmed she would make a decision on whether or not to increase the fees and rates payable for controlled immigration and asylum work shortly thereafter.

Funding announcements did come later in 2024, as well as the publication of number of reports in response to the MOJ’s Review of Civil Legal Aid (RoCLA), launched in January 2023. This year, a further government consultation, Civil Legal Aid: Towards a Sustainable Future, has opened and will run for eight weeks until 21 March, with the aim of considering increases in civil legal aid fees in housing and debt and immigration and asylum, as well as ways to improve the experience of legal aid processes.

In light of the vast amount of evidence all saying that the civil legal aid system is broken, while the recent funding proposal and further consultation is positive, such money (when it comes) is perhaps just a drop in the ocean. It’s far from clear that putting a bit more cash into the system is going to lead to enough improvement to increase access to justice, as well as maintain the legal aid sector and inspire new lawyers to join it.

Solutions?

Perhaps we need something that puts the interests of the people with legal problems first in the same way as the National Health Service puts the interest of people with health problems first? This is the vision, presented by Roger Smith and Nic Madge in 2023, of a National Legal Service: A New Vision to Access Civil Justice (NLS). They proposed that, ‘the government should establish, by Act of Parliament, a new National Legal Service. That National Legal Service should incorporate through common branding a fresh mix of new and old providers of legal aid to form one integrated service, which would provide legal help for all those who cannot afford it’. It is suggested that the functions of the NLS would be divided into three tiers: initial information and advice, innovation of delivery and new uses of technology (including Digital Plus self-help tools), and legal representation. While this vision seeks to provide an overall direction and purpose in terms of what a legal aid system might look like, the money problem remains as, ‘[t]he National Legal Service would require a sustainable basis for funding’.

To combat this, Smith and Madge suggest a levy on ‘the better paid members of the legal profession’. They highlight that while ‘many legal aid practitioners struggle to make ends meet the profits of larger solicitors’ firms and the earnings of many successful barristers, especially those who practise in commercial and international fields, are substantial’ and suggest that ‘[t]he levy could be collected by a supplement to insurance premiums, based on the taxable profits of solicitors’ firms and barristers’ earnings for the previous year, with a threshold that would mean that only higher earners would pay’.  

The notion that lawyers have a broader responsibility to promote access to justice that goes beyond servicing their day-to-day clients is not new. This was very much promoted by Conservative ministers as playing a key role in Cameron’s ‘Big Society’ in the lead up to LASPO, with the suggestion that lawyers who are benefitting financially from the legal system should be helping protect access to justice for all through offering their services for free. This was echoed in 2015 by Conservative minister, Michael Gove, suggesting that “those who have benefitted financially from our legal culture need to invest in its roots” (although it was not clear what precise form this should take) and, later in 2021, Labour’s David Lammy put forward policy plans that ‘would require City firms to have met the target of at least 35 hours of pro bono legal services per lawyer per year to be eligible for government contracts’. Or course, many lawyers already give their time to pro bono activities, including those at large city law firms, through their corporate responsibility programmes. The pro bono recognition list recognises the not insignificant number of lawyers who have given 25 hours or more pro bono legal assistance over the year and the LawWorks Pro Bono Awards celebrate the legal pro bono activities undertaken by organisations and individuals. 

But if the state creates legal rights and obligations through the law it creates, then surely it is for the state to ensure their citizens have the means to access justice. The economic case is there, most recently set out in the ‘The value of justice for all’ report, commissioned by the Access to Justice Foundation in partnership with the Bar Council. Their researchers found that the funding of free legal advice and support at an average cost of £3,300 per case saved the government £9,100 in 2023. This means that for every £1 the Treasury spent on legal advice, it saved the public purse £2.71, a nearly threefold saving on investment. 

This suggests that the solution might not in fact be about relying on the legal profession to fill any justice gaps, whether by way of financial contributions or pro bono work on an hoc basis, but to actually sort out the legal aid system with proper investment. This approach would need much more funding than currently proposed and a clear vision for a coherent and sustainable scheme rather than just tinkering around the edges.

The high trust model?

The 2024, the comparative analysis of legal aid systems report, commissioned by the MOJ, identified various policy ideas to be further explored, one of which is the ‘high trust model’ from the Netherlands. This ‘high trust’ method for legal aid applications between the Legal Aid Board (LAB) and legal providers is based on mutual trust and reduced bureaucracy. The report says: ‘For trusted providers, the high trust method has streamlined the requirements to demonstrate that an application for a certificate has met the “merit” requirement and it takes less time to receive verification from the LAB. Lawyers operating under the high trust method are required to demonstrate greater compliance by operating in accordance with administrative procedures and rules’ and in return ‘the LAB makes it easier for these lawyers to apply for certificates by eliminating the requirement to send documents along with their application (e.g., financial statements) and expedites the process for verification. Applications for providers operating under the high trust method are accepted automatically’. While some trust mechanisms in the civil legal aid system do exist in England and Wales, an enhanced legal aid environment of trust and transparency would likely increase efficiencies and reduce administrative burdens for lawyers in the sector.

The Law Society has indicated that it has started to explore how the Netherlands model could work here, noting that, ‘[h]igh levels of bureaucracy contribute to the crisis of sustainability, and the lack of autonomy can create an atmosphere of mistrust between the Legal Aid Agency and its providers’. Such a move, however, might be particularly challenging within the historical context of legal aid in England and Wales, which has moved from being fully administered by the Law Society, to the Legal Aid Board, Legal Services Commission, and now the Legal Aid Agency, an executive agency of the MOJ.

It may be that enhanced trust mechanisms could help oil the creaking system, but whatever model is adopted, it is unlikely to be successfully implemented without significant funding and investment into legal aid process and rates beyond what has been proposed to date. It is clear that individuals who need to access their rights and those who deliver legal aid provision can’t wait much longer. Potential new entrants to the sector are diminishing fast and for the few who do wish to join, they may soon find there is little left of civil legal aid.

The views expressed in this article are those of the author.