Diversity in criminal legal aid: A huge step forward

Outlining “the most ambitious reform of criminal legal aid in decades”, in March the Ministry of Justice (MoJ) put forward changes to the sector that include plans to “give more people the opportunity to forge a career in criminal law, whatever their background” and remove barriers for CILEX members working in criminal law.

The move was part of a package of measures that formed the government’s response to Sir Christopher Bellamy’s independent review of criminal legal aid (CLAIR) that also included a pledge of up to £135m extra funding for the sector.

While debate still rages over the extent to which government’s new commitments meet the CLAIR recommendations, CILEX both recognises the fact of an influx of new money and remains committed to the principle the system will only function with the right level of funding. That aside, for CILEX members working in criminal law, that the package of reforms includes recognition of the role they have to play and proposes the changes to the system that has so far held them back, it signals a huge step forward.

Historic anomaly

At present, the system is stacked against CILEX lawyers. Disproportionate and unnecessary barriers disincentivise and impede suitably qualified CILEX practitioners from being accredited under the Criminal Litigation Accreditation Scheme (CLAS), depriving a high-volume scheme of a cohort of capable lawyers. The first hurdle to a career as a police station duty lawyer, therefore, arises at the very beginning.

A lack of recognition of CILEX advocates’ training and competence creates duplicate standards for proving an ability to carry out work independently.

Our view has long been the CILEX advocacy qualification fulfils the requirements under CLAS and that CILEX practitioners holding this qualification should be ‘passported’ across – an easy remedy that would remove this barrier faced by our members looking to get onto the duty rota.

The government agreement this be addressed is an important step in opening up the sector to a wider pool of lawyers, potentially giving CILEX members the opportunity to take part in more police station work. In fact, the government goes so far as to question the need for suitably qualified CILEX lawyers to be accredited at all.

We have been campaigning for these changes for some years, so it was gratifying to see in the MoJ consultation, open until 7 June, that the government: “is keen to see increased opportunities for CILEX professionals across the justice system – including making it easier for them to become duty ‘solicitors’ to increase the sustainability and stability of the provider base and to reduce barriers to access to this work where people enter the legal professions through alternative routes”.

The government proposes working with the representative bodies and the Legal Aid Agency to review the current position.

Diversity

Removing the barriers faced by CILEX practitioners has positive consequences beyond being simply beneficial to our members.

In terms of social, gender or ethnic diversity, a common point made to Sir Christopher’s review, by us and organisations such as the Black Solicitors Network and the Muslim Lawyers Advisory Group, was low criminal legal aid rates generally made it very difficult for smaller firms, traditionally offering career opportunities for lawyers from disadvantaged social or minority ethnic groups to continue to do so.

This was resulting in fewer lawyers from these backgrounds entering the system – a real issue, given the relatively high proportion of socially disadvantaged or minority ethnic defendants in the criminal justice system. That, the report contended, meant a shortage of lawyers who could best relate to these defendants, which, in turn was eroding trust in the system.

CILEX has a more diverse membership than other branches of the profession – 76 per cent of our lawyers are women, 17 per cent identify as Black, Asian or Minority Ethnic and 85 per cent attended state schools.

This diversity means giving members specialising in criminal defence work the ability to take on the same work as solicitors would improve diversity in the sector. One way in which the government could encourage the CILEX membership, with its diverse demographic, is to extend its proposal in relation to training grants to be open to all qualification routes and not just the traditional solicitor training contract model.

The government plans rightly accept the need to increase funding to ensure the immediate viability of legal aid – and recognises further reform should provide long term sustainability.

It also recognises CILEX professionals are essential to our justice system. The removal of the false barriers that prevent them from playing a full role in criminal legal aid is therefore an important breakthrough. Doing so will not only help to address current backlogs but will also make an enormous difference to improving both the diversity and the sustainability of the sector.

Professor Chris Bones is Chair of CILEX (Chartered Institute of Legal Executives): cilex.org.uk