Moreover, the role of fixed fees should be reduced, fair rates offered and regularly reviewed, and the fee structure reformed so as to incentivise early engagement between defence lawyers and the police and the CPS. In civil law, non-means tested advice should be provided at court on the day of hearing to provide ‘an economical way’ of supporting vulnerable litigants, while the means test for civil legal aid should be simplified, set at an objectively defined poverty line and regularly uprated.
The APPG published its ‘Inquiry into the sustainability and recovery of the legal aid sector’ this week. APPG chair and vice-chair Karen Buck MP and James Daly MP, respectively, said the report is ‘possibly the most comprehensive and in-depth look into the condition of legal aid yet undertaken.
‘We heard about how legal aid and the justice system are embracing innovative ways of working, but also that there are inevitable limitations to technology…All through the Inquiry, and threaded through this report―has been the recurrent theme: “There can be no justice without access to the means of securing justice”… As we heard, however, the system is buckling, and the demands and pressures of Covid have only intensified what was a service already under significant stress… The legal aid system depends on being able to recruit and retain excellent lawyers and to serve all parts of the country, but increasingly that can no longer be relied upon.’
It highlighted the impact of legal aid ‘deserts’ where provision has dried up, and the shortage of practitioners moving into both civil and criminal legal aid.
To help plug the gap, it recommended judges be given powers to order exceptional case funding for individuals to receive representation, the Lord Chancellor use his existing powers to make targeted grants to organisations to ensure provision where there are gaps, and the Legal Aid Agency be given powers to support providers to bring in trainees.
Tony Wyatt, Associate Counsel at Ewing Law, said: "The case backlog is a monster of the Government's own making - decades of legal aid cuts have led to an exodus of judges and lawyers, creating the growing backlog of cases which ultimately denies justice for defendants. Non-lawyers have been picking up from over-worked legal aid lawyers, meaning defendants aren't getting an effective legal defence. The rhetoric of successive government is so far from the reality of the situation and wrongly blames the police and defence, instead of acknowledging the damning impact of years of cuts.
“The Government must invest in legal aid and stop selling off court buildings—else the silence from the Government over when the backlogs is expected to clear will be indefinite."
Linda Ford, CEO of CILEX said: “This inquiry echoes much of what many of us in the sector have been saying for some time. However, it is not just about diversity of providers at an individual level that is key, but also at a firm level. Too many small to medium sized firms are locked out of legal aid contracts. For those that are able to secure these contracts, the rigidity in requirements imposed has threatened their cashflow and increased overheads. The system needs to open itself up to a wider range of smaller, more dynamic firms to improve its resilience and ability to adapt in meeting the needs of the public."
