The Inquiry into the Sustainability and Recovery of the Legal Aid Sector

by Oliver Carter, a human rights solicitor and Eliza Bell, a paralegal at Irwin Mitchell

On 19 October 2021, the Westminster Commission on Legal Aid published its inquiry into the sustainability and recovery of the legal aid sector. The Commission, a cross-party initiative, was formed by the All-Party Parliamentary Group on Legal Aid in May 2020 to ‘examine the state of the legal aid sector as it emerges from the COVID-19 pandemic’.

The report is based on extensive research, data collection, written submissions and the findings of a succession of oral evidence sessions that heard from frontline practitioners and clients ‘with lived experiences of the legal system and of fighting for access to justice’.

In considering the impact of COVID-19 on legal aid, the inquiry took the opportunity to take ‘a long term look’ at the sector and reflect on the impact of changes made over the last decade. In doing so the Commission sought to answer three questions:

• Is the current state of the legal aid sector fit for purpose?
• Is the sector ‘sufficient’ to meet public need?
• Is the sector sustainable as a whole?

In the Public Law and Human Rights team at Irwin Mitchell, much of the health and social care, mental capacity and civil liberties work we do for individuals is funded by legal aid. However, there have been cuts and restrictions on legal aid for over two decades which have limited people’s ability to access justice when they need it.

Findings 

The Commission found that ‘the legal aid system as it stands is not sufficient. Nor is it sustainable’ and reached the following conclusions: 

There has been a continued and gradual decline in access to justice

The implementation of capital means testing, including taking into account the value of a person’s home, by LASPO (the Legal Aid Sentencing and Punishment of Offenders Act 2012) has resulted in many people being ineligible for legal aid ‘despite having no real access to funds to pay for legal advice’.

Where individuals do remain eligible, the Commission found that LASPO has further resulted in a sharp decrease in the number of law firms providing civil legal aid services. This has triggered an increase in ‘advice deserts’ (where no legal aid provision is available for particular areas of law) and ‘advice droughts’ (where providers have limited or no capacity to provide a service to those in need).

The Commission found that advice deserts and droughts result in individuals entitled to legal aid being unable to access it, and that ‘those needing assistance are often the poorest and most marginalised members of our communities, without the means or the support to travel to obtain advice.’

This decline in access to justice has a number of causes  

Large areas of law have been removed from the scope of legal aid, resulting in a dramatic reduction in firms providing legal aid. With findings that there has been no increase in legal aid rates since the 1990s, and 10 per cent cuts to civil legal aid rates in 2011 and 8.75 per cent cuts to criminal legal aid rates in 2014 (factors which are further impacted by rising inflation), the report also emphasised the ongoing difficulty in recruiting and retaining lawyers.

It seems likely that this need will increase as we emerge from the pandemic

Although the full impact of the pandemic remains unknown, the report highlights that the worst impacts, and the need for corresponding legal advice, will be felt by those ‘who are least financially resilient’. In such circumstances the ability to access justice is wholly dependent on a publicly funded legal service.

Recommendations 

The report makes important recommendations to ‘mitigate some of the damage done to the sector over the past two decades’, including:

• Review the scope of civil legal aid, with recommendations that immediate changes to the scope of legal aid include restoring legal aid for early legal advice to pre-LASPO position, and expand access to legal aid to bereaved families for inquests.
• Ensure the legal aid means test does not prevent those without means from accessing justice
• Fund training and qualification places for legal aid lawyers
• Ensure legal aid is paid for all judicial review cases (irrespective of the outcome of the case)
• Overhaul the Exceptional Case Funding Scheme
• Increase legal aid fees in line with inflation
• Establish an Independent Legal Aid Fee Review Panel  

Our Opinion 

We welcome the findings by the Westminster Commission on Legal Aid, and call on the government to implement the recommendations made by the Commission in order to improve access to justice. If implemented, the recommendations will significantly enhance the quality of life for thousands of people across the country, many of whom are the most vulnerable in our society.

Irwin Mitchell has legal aid contracts in many areas of law. Find out more about our expertise and ways we can help you.

Those needing assistance are often the poorest and most marginalised members of our communities, without the means or the support to travel to obtain advice. ”