England: Legal aid in need of urgent reform

The report warns that a rigid system of fixed fees and low pay is leaving firms specialising in legal aid struggling. The sustainability of legal aid providers is critical to ensure that those eligible for legal aid are able to be supported through what can be a complex and daunting system.

As in Scotland, criminal legal aid firms are finding it increasingly difficult to recruit and retain staff. Firms that rely on publicly funded work are not able to compete with the Crown Prosecution Service, which is able to offer significantly better pay and conditions. 

The committee warns that without reform criminal defence services will be unable to provide the high-quality defence that is vital in an adversarial justice system. The committee said that the government should remove the cap on what acquitted defendants can recover from central funds.

Committee chair, Sir Bob Neil, said: “In the last twenty years, efforts to reduce the cost of the legal aid bill have hollowed out key parts of the justice system. Fixed fees are failing to cover the cost of complex cases, the number of people receiving legal aid is falling and legal aid firms are struggling to keep going. Careers specialising in legal aid are becoming less attractive and legal professionals are moving to the CPS or private practice instead.

“This puts the fairness of the justice system at risk. We have called on the government to ensure that the legal aid system provides an adequate level of funding to ensure that quality legal advice is available at the earliest opportunity for those in need of it. The fee structure should reflect the complexity of work that is needed and support a healthy legal aid sector. The fixed fee system, which has been left unchanged for twenty years, should end and be replaced with a flexible structure that supports the legal work required on a case.

“The legal aid system is there to ensure that everyone has access to justice. If the most vulnerable in society are being left to navigate the justice system on their own then fairness is lost and the system has failed.”

Ian Moir, co-convener of the Law Society of Scotland’s Criminal Legal Aid Committee, said: “While this report relates to the system south of the border, we are facing very similar problems in Scotland.

“We are seeing people leave legal aid firms in increasing numbers to work for the Crown Office, Scottish government etc, where the pay and conditions are much more favourable and offer a better work/ life balance.

“While the Scottish government have listened to our concerns and taken some action in the form of increased fees, the Trainee Fund and the Resilience Fund, there is still a very long way to go to redress many years of under investment.

“If urgent steps are taken, it may be possible to reverse the crisis, but the situation is already critical.”