Increasing sitting days a funding the police is not enough. The inescapable reality is there are not sufficient Barristers and Solicitors doing criminal defence work for the government to achieve its aims in reducing the backlog. In fact, lawyers are leaving professions in droves. The number of duty solicitors has reduced more than 20% since 2017. The number of solicitors firms practicing criminal legal aid has reduced by over 40% since 2010. The consistent underfunding of criminal legal aid has meant that it is no longer financially viable for people to choose a career working as a solicitor or barrister doing legal aid in the criminal courts.
In November 2021 the Independent Review of Criminal Legal aid was published. It recognized the underfunding of the system over many years and recommended an initial investment of at least 15% over current levels, an investment of £135 Million, to place criminal legal aid on a sustainable footing. This was to be no more than a minimum starting point, to be kept under review going forward.
The Government response to the report has to date been woefully inadequate. The proposed investment does not match that minimum recommended by the report. Solicitors fees are to be increased by 9% not 15% despite the report finding solicitors firms finance were in a dire state and were not sustainable. To reach the headline figure of £135 million announced the government has included increases to the budget of the Public Defender Service, an increase in expert fees, training grants and a projected increase in the number of cases by 2024/25. This is not the immediate investment in Solicitors and Barristers fees the report recommended. To suggest that it is, is just plain wrong.
The system has relied on the patience and goodwill of lawyers working at a loss to keep it going. That patience and goodwill is now as exhausted as the lawyers themselves. The strength of feeling is the same amongst solicitors as it is barristers – this cannot continue. This is the background against which the CBA has begun its action.
As the strike continues, Solicitors will judge the correct course of action on a case-by-case basis. However, the courts must understand that Solicitors’ firms do not have infinite resources and will have professional commitments to keep in the Magistrates Court and the Police station as well as the Crown Court.
The unavailability of the instructed Counsel does not mean there is an obligation upon in house Solicitor-Advocates to take over conduct of the advocacy. Should a Judge signal that they will grant a Solicitor a right of audience they would not normally be entitled to, there is no obligation on that Solicitor to accept that right of audience and conduct the hearing. We are ready to assist any CLSA member affected and members are invited to contact us at admin@clsa.co.uk should they want assistance.
The Government consultation into its response the CLAIR is ongoing. We continue to make the case as forcefully as we can for the proper implementation of its recommendations in full and we are in regular contact with the MOJ and LAA.
The Government must follow the recommendations of Sir Christopher and implement the 15% fee increase in full, including a 15% increase in LGF fees.
Solicitors are already beginning to take direct action with some declining to take on burglary cases. We foresee this escalating to other types of cases if the Government fails to follow Sir Christopher’s recommendations.