Thoughts on a creaking legal aid system
Updated: Mar 17, 2021
I spoke to the Westminster Legal Policy Forum on 16th March 2021 about how we can improve the legal aid sector. I was, however, concerned that the conference fee of £190 priced out many actual legal aid practitioners from taking part in the Forum, which is a shame because that deprived other attendees hearing from those at the coalface.
As such, I'm posting my speech here. It's nothing new and much of it has been said before, and better. Some of it repeats my oral evidence to the Westminster Commission on Legal Aid back in November 2020. But we need to keep banging the drum for our colleagues and for our clients.
So lots of people before me have spoken about the state of the legal aid system now so I want to talk about what the next step is: how do we improve the sector?
It’s a big question and there is no easy answer, but a good starting point - and I'm happy that there are so many delegates here from the Ministry of Justice - would be to pay lawyers for the work that we actually do on a case.
I was speaking to my best friend recently, who's a criminal barrister, and she said someone in her chambers had mentioned pro bono work, and her first instinct was: “well, I’m basically doing lots of pro bono already.”
As family lawyers, we get paid for hearing time, which could be all of ten minutes. We get paid in 2.5 hour chunks, so 5 minutes here or there make a lot of difference. We don’t get paid for preparation. We don’t get paid for usually more than an hour after a hearing to draft the order, even though emails might go around about the order for days. We're expected to write attendance notes for our solicitors. We are expected to write position statements to assist the court. We don’t get paid for any of that.
So, it does feel very much like my privately paying clients, who form about 60% of my practice [correction: 60% of fees received], are subsidising my legal aid clients, which is not how it should be.
Another good starting point would be to raise LAA rates, which haven't risen with inflation in years.
Money matters for broader reasons. As Karen [Buck MP, chairing the session] said, I’m anxious not to keep banging the drum for lawyers - it's not just about lawyers. It's about a wider issue about access to the profession and access to justice. It’s all well and good talking about diversity in the profession and having lawyers who look like the communities that we serve. But if you’re from a lower socio-economic background, what could possibly be attractive about entering legal aid? Aspiring lawyers rack up tens of thousands of pounds in debt. They then spend more money to do the Bar Training Course, The Legal Practice Course, the GDL. Pupillage awards and training contract salaries at legal aid chambers and firms are not as competitive as elsewhere. Why would anyone who needs to feed their kids or support their family or who is a carer want to take that risk rather than going to a corporate law firm where their future is secure and they will be paid a healthy sum? At the moment, the people who can enter the profession and who can afford to stay in the profession are, by and large, people like me: I'm very privileged, I'm privately-educated, I'm comfortable, I have significant family support, and I'm living at home with my parents rent-free. Those who interact with the legal system should be able to see a system that reflects them, not the 1%.
What we really need though to improve the sector, is cultural change. No one appreciates the work that is being done by legal aid lawyers. We are villainised by the media. We are villainised by the government. Priti Patel described lawyers representing migrants – also known as 'doing their jobs' - as "do-gooders" and "lefty lawyers". On the same day that she gave that speech to the Conservative Party Conference, the Mail on Sunday published an article about Duncan Lewis, the biggest legal aid firm in the country, entitled ‘Taxpayers foot £55m bill for lawyers blocking deportation flights of Channel migrants’. As a consequence of the government and media rhetoric, Duncan Lewis confirmed that their lawyers had been receiving daily threatening messages.
They released a statement which I want to read from because I think it summarises a lot of the things I want to say:
"It is no secret that we are the largest provider of publicly funded (legal aid) civil legal services in England and Wales, nor are we ashamed of it… Whilst we do immigration work, this is not our largest department in relation to fees received. Most of our fund spend goes into representing vulnerable children in care proceedings. We further represent the homeless, the elderly (who may require the appropriate care packages having been tax payers for most of their lives), individuals with mental health issues, and many more. We represent clients who are victims of the Grenfell Tower tragedy and the Windrush generation whose status in the UK has still not been resolved by the Home Office. We represent those vulnerable clients (whether British citizens or foreign nationals) who have been unfairly treated by public authorities. We represent people who have had their civil liberties breached."
It's powerful stuff, but the media and the state don’t have any interest in showing that side of the profession. The people on the ground who we represent. It makes it easier to slowly extract public money from the profession by framing us in the way Priti Patel or the Daily Mail does.
I also want to touch on alternative sources of legal advice.
I'm very involved in pro bono and in the third sector, and I have been for the past 4 or 5 years. I do a lot of work for free, often because I can’t bear the thought of a client who is extremely vulnerable; who has been the victim of domestic abuse; who would really, really benefit from legal advice, having to go it alone.
There will always be a cultural place for pro bono in the profession, but the government cannot rely on goodwill to keep the system going. And there is an awful lot of goodwill already.
John Eekelaar and Mavis Mclean wrote a book called: ‘After the Act: Access to Family Justice post-LASPO’, which sets out many of the initiatives which cropped up post-LASPO in the third sector to plug that gap. Those include student legal advice centres, organisations like Support Through Court and so on. But let me be quite clear: those services are not a replacement for robust legal advice from an experienced practitioner. Students, who usually – and this is no criticism of them – are doing that work as an opportunity to build their CV, are not a substitute for robust legal advice from an experienced practitioner. The kind of assistance that organisations like Support Through Court offer, namely practical, procedural and emotional support, is not a substitute for robust legal advice from an experienced practitioner. In short, pro bono work and the third sector is not a substitute for a properly funded legal aid system.
In August last year, the Ministry of Justice announced £3.1 million in additional funding to non-profit organisations supporting those representing themselves in court. I don't begrudge funding being offered to deserving organisations who are helping litigants in person make the best of a creaking system, but it does beg the question: wouldn't it just be easier to fund the legal aid system properly? The idea that we are making essential savings by taking money away from the legal aid sector is based on a false economy, as Catherine [Baksi, freelance journalist[ touched on. How many of us have had proceedings prolonged, court and judicial time wasted, because of litigants in person who - no criticism of them - have no idea what they're doing, don't comply with directions, don't turn up to hearings or didn't understand what they were supposed to do?
I’ve said it before and I’ll say it again: the kind of work we do isn’t sexy. It’s not the sort of cause that attracts public praise or indeed public funding. Lawyers attract contempt from the public at large, and to a large extent, the state and the media feeds into that. It becomes politically convenient to scapegoat the legal aid sector. And that has got to stop. Without that cultural shift, we can have as many forums and as many panels as you want, and it isn’t going to change a single thing.