The report, ‘Government’s management of legal aid’, published this week, showed real terms spending on legal aid has fallen by 28% in the past decade. It highlighted a £728m gap between the £2.584bn spent in 2012/13 and the £1.856bn in 2022/23.
According to the report, civil legal aid fees are half what they were 28 years ago in real terms, and the Ministry of Justice (MoJ) does not sufficiently understand the demand for legal aid and the capacity of existing providers.
The NAO urged the MoJ to do more to achieve value for money by ensuring services are accessible and the legal market is sustainable. It provided examples where stakeholders feel costs have shifted elsewhere in the public sector, including that some local authorities are funding legal advice for immigration cases to mitigate costs to themselves later on.
It found gaps in the data collected by the MoJ on unmet need, for example, the extent of ‘cherry-picking’ of straightforward cases in fixed fee categories, leaving those with more complex matters unable to access advice.
The NAO also highlighted problems with the sustainability of the legal aid market—in some areas the MoJ was unable to appoint providers for emergency housing advice in specialist courts. Many providers told the NAO they plan to reduce or withdraw their legal aid services in the near future, and face difficulties recruiting staff.
Gareth Davies, head of the NAO, said: ‘The MoJ has succeeded in its objective of significantly reducing spending on legal aid, which has fallen by more than a quarter in the past decade in real terms.
‘However, it still lacks a complete understanding of the wider costs arising from the reforms and so cannot demonstrate a spending reduction for the public purse overall. Nor does it collect sufficient data to understand whether people entitled to legal aid are able to access it.
‘The MoJ must ensure that access to legal aid, a core element of access to justice, is supported by a sustainable and resilient legal aid market, where capacity meets demand.’
Law Society vice president Richard Atkinson said: ‘It is a decade since the UK government implemented the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO), which cut large areas from civil legal aid overnight.
‘The Law Society’s research shows the result of this legislation is large legal aid deserts. Millions of people now live in areas where they can no longer access the help and advice that Parliament has said they are entitled to.
‘According to the NAO, removing early legal advice has impacted on efficiencies in the wider justice system. There has been an increase in people representing themselves in court, while the MoJ’s failure to divert people to mediation has undermined its objective of reducing unnecessary litigation.’
The Law Society has issued repeat warnings about legal aid deserts in England and Wales—geographical areas where there are no, or only a few, legal aid providers in certain subjects such as housing, immigration or family. It has also warned of a shortage of duty solicitors for police station and magistrates’ court work because the fees are too low.
Last month, the Law Society won a judicial review on criminal legal aid funding, in Law Society v The Lord Chancellor [2024] EWHC 155 (Admin). Lord Justice Singh and Mr Justice Jay held the government’s failure to increase criminal defence solicitors’ legal aid rates by the bare minimum 15% were irrational and the Lord Chancellor made insufficient enquiries as to the state of the criminal legal aid sector before making them.
The 15% minimum increase was recommended in 2021 by the independent Criminal Legal Aid Independent Review, chaired by Lord Bellamy (subsequently appointed as a minister at the Ministry of Justice). Singh LJ and Jay J commented in their judgment that the criminal justice system ‘is slowly coming apart at the seams’.
