'Urgent action' needed: civil and criminal legal aid markets 'on the brink of collapse'

The House of Commons Justice Committee has published the government’s response to its report on the future of legal aid.

The response includes a letter from deputy prime minister, lord chancellor and secretary of state for justice, Dominic Raab MP. Raab wrote: “We have listened to the concerns raised by some criminal defence practitioners, that a career in legal aid is becoming increasingly less attractive, by launching the Criminal Legal Aid Independent Review (CLAIR).

“The Review is considering, amongst other things, whether the current rates of pay for undertaking criminal legal aid work fairly reflect the work undertaken and whether a mechanism for reviewing the legal aid fee schemes might help to encourage new providers to enter the market and incentivise existing providers to continuously improve the quality of their services”.

Commenting on the response, Law Society president, I. Stephanie Boyce, said “urgent action” was required by the Ministry of Justice, “to address the crisis in our legal aid system”.

She added: “While the funding commitments announced in the budget were a welcome step in the right direction, much more investment is needed to ensure legal representation is available to those without the means to pay for it.

“The civil and criminal legal aid markets are both on the brink of collapse, the courts are drowning in ever-increasing backlogs, the situation is acute. The government needs to address this with the urgency it requires”.

In his letter, Raab also commented on “the issue of the sustainability of the Civil Legal Aid system”. He said the government is “considering what could be done in the short term to improve the sustainability of the system”, including “developing an early legal advice pilot which will launch next year to test the impact of early intervention in social welfare issues”. He said the evidence gathered from the pilot would be used to further consider what the future civil legal aid system should look like.

Raab reported the government is “nearing completion” of its review of the Legal Aid Means Test to assess the effectiveness with which the means test ensures access to justice. He said the review is scheduled for publication in Autumn 2021, with an accompanying consultation, after the Spending Review has been announced.

Boyce commented: “A review of civil legal aid sustainability has long been promised and the government refers to work going on internally, but what we need is the publication of a clear timeframe, terms of reference and active engagement with the profession.

“Our analysis revealed catastrophic legal aid deserts across the country, and we would like to see some specific proposals to address this and ensure people on lower incomes who face overwhelming legal issues from domestic abuse to homelessness can get the expert legal advice to which they are entitled.

She added: “We look forward to seeing the Independent Review of Criminal Legal Aid and the government’s response to it, as well as the Legal Aid Means Test Review, and hope they will result in substantive progress in tackling the problems which blight our legal aid system.

“While we understand the Ministry of Justice is awaiting the reports, we share the Justice Committee’s disappointment that there is not more substance in its response.

“We are disappointed the government has rejected the idea of judges – who have seen the individual concerned and have developed an informed judgement on their need for representation to get justice – being able to direct that exceptional case funding (ECF) should be granted.

“ECF continues to fail those for whom it is supposed to be a safety net.”