Legal Aid dispute – CLSA Guide

4 July 2022

As the dispute between barristers, solicitors and government over its failure to put Legal Aid and the Criminal Justice System in a sustainable footing continues and is escalated, clients and solicitors are being placed in a invidious position. Recent announcements by the government have done nothing to fix the problems, and there is therefore no end date in sight for the disruption. To help members, we have created a leaflet which you can send to clients explaining the action

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What is the dispute?

The Criminal Justice System is in crisis. The significant backlog of cases in the Magistrates and the Crown Court predated Covid-19 but has been exacerbated by it. The reduction of that backlog will require committed hard work by barristers, solicitors (both prosecution and defence), CPS, court staff, police, probation and Criminal Justice agencies and even that is not enough to prevent serious delays in the system.

Barristers and solicitors alike are worried about the problems facing the system and many are currently taking part in protests, in particular about Legal Aid which is how those who cannot afford their own lawyers are provided with representation paid for, at least in part, by the state.

What are the problems and how do they affect you?

There have been no increases in pay rates for publically funded work for decades. Indeed in there were cuts of 8.75% in recent years. The effect of that is that the work is no longer financially viable for firms and solicitors with cases now paying less than they did 20 years ago. Legal Aid pays a fraction of what the case would cost on a private basis (where the client pays the fees). This has meant there are not sufficient Barristers and Solicitors doing criminal defence work because it is not financially viable. In fact, lawyers are leaving the 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. Worst still, the profession is an aging one, with no new lawyers replacing retiring one and the average age of a duty solicitor approaching 60.

As a result of these problems there are some areas where it is increasingly difficult to find a solicitor to undertake cases on Legal Aid. This not only means there is an increased risk of people being deprived of legal advice, but builds in delay and undermines prosecutions, depriving victims, witnesses and those accused of crime with justice.

What is the government doing?

In November 2021 the Independent Review of Criminal Legal Aid was published, led by a independent lawyer appointed by the Government. It recognized the underfunding of the system over many years and recommended an initial investment of at least 15% over current levels 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 and falls below this recommendation. They are proposing investment that does not match the bare minimum recommended by the report. Solicitors’ fees in particular fall below the recommended minimum level for sustainability. What are lawyers doing? 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 action has been brought.

What is the action?

Barristers and solicitor-advocates are currently taking various steps. They are refusing to help the Court by covering each other’s cases when one is unavailable. More recently they have escalated this recently. They are now taking part in ‘days of action’ where they will not attend court and will picket instead. In some cases barristers are refusing to take on any new causes.

Some solicitors are also refusing to accept certain work and are balloting to take further action.

How long will this go on? There is no end date and the action will continue until the dispute is resolved.

How will the action affect me?

Unfortunately this action is likely to impact many court cases. If a barrister does not attend court to represent you, you will have no one to speak for you, even if you have Legal Aid. The Courts are delaying many cases, but some are still going ahead. You may be asked if you are happy to continue without your barrister. It will rarely be in your bests interests to do so, and you have the right to be represented, but the decision is yours.

All of this may delay your case. Hearings may be delayed or cancelled at the last minute. Witnesses and victims of crime, as well as those accused of them, will experience the delays, and it will take much longer for your case to finish, especially given the existing backlog. If you are in custody, you may have to wait longer in prison.

This is all undesirable and we hope that the government and lawyers can resolve their differences and provide a sustainable legal aid system for those who need it.

What can I do?

You should speak with your solicitor if you have one. You should also try to contact your MP if you are worried about this.

Who are the CLSA?

• to encourage and maintain the highest standards of advocacy and practice in the Criminal Courts in England and Wales

• to participate in discussions on developments in the criminal process

• to represent and further the interests of the Members on any matters which may affect solicitors who practice in Criminal Courts

• to improve, develop and maintain the education and knowledge of those actively concerned in the practice of Criminal Law in those Courts and those who are in the course of their training.

More information is available on the CLSA website