The government announcement yesterday that it will carry out a formal review of the civil legal aid system, to include independent research and analysis, is a welcome admission that so much more needs to be done to ensure that access to justice is a reality for all citizens and not simply empty rhetoric. However, we are gravely concerned about the lack of current action to address widely recognised and evidenced problems across the entire legal aid system. Our concerns are shared by those throughout the profession due to decades of under-funding and regressive government policy-making.
A significant amount of robust research and data already exists which demonstrates that the civil legal aid scheme requires substantial investment, an expansion of the range of services available to properly meet the needs of clients, and a reduction in unnecessary bureaucracy. In recent years we have presented sound evidence to the Ministry of Justice about the issues afflicting the scheme and the solutions required. Data has also been produced by The Law Society, the Bar Council, the cross-party parliamentary Justice Committee and All-Party Parliamentary Group on Legal Aid, and a range of independent academics. The Ministry has not acted on this data, other than to commission relatively small and largely ineffective initiatives that do not address the core problems. More worryingly, the Ministry is already in possession of a plethora of data that demonstrates that legal aid providers and case starts have plummeted over the last decade as a direct result of government policy.
Civil legal aid fees have not increased in 30 years, and indeed have been cut in this time. Year on year legal aid lawyers are expected to deliver their expert services to vulnerable clients on fees that continuously fall due to inflation. Many have simply given up. Those who remain are exhausted, cannot recruit new staff and struggle to retain their existing staff. Current providers are so committed to the principle of access to justice that they find ways to subsidise loss-making legal aid work and they carry out work for free to provide the services their clients need.
The action needed to ensure that the civil legal aid scheme is effective and accessible to those who need it is clear and indisputable. There are no further efficiencies to be made to a service that has been cut to the bone over three decades. If the government expects legal aid lawyers to deliver a high quality service then they need to be properly and fairly remunerated for their expertise. We are aware of the pressure on all departmental budgets, so the Ministry should use the review to demonstrate that investment in civil legal aid actually reduces costs elsewhere within the justice system and public spending in other government departments such as housing, education, health and social care. We know, for example, that advice under legal aid that compels a landlord to repair a run-down property is far more cost-effective than treating the health issues that arise from poor housing. Just as importantly, access to legal aid creates a precious but incalculable return on investment as citizens can enforce their rights and protect themselves from abuses of power by public bodies. There can be no argument in a fair and open democracy that equal access to the justice system and equality before the law are invaluable and must be a priority for any government.
We will engage with the review and we will encourage our practitioner members to help the government as best they can. But we urge the government to act on existing data, and the recommendations of experts from across the profession and academia, to implement solutions as quickly as possible. The government cannot escape the conclusion that a sustainable, effective and efficient legal aid system requires adequate funding and that it can no longer ask those delivering the scheme to continue to work for fees that have not been commercially viable for many, many years.
Nicola Mackintosh KC (Hon)
Jenny Beck KC (Hon)