The Chair of the Bar Council has welcomed the government’s decision to review the civil legal aid system but warned that the schedule of the review is too slow and that interim measures are required to prevent the complete collapse of the existing scheme. In a public statement issued last Thursday, Nick Vineall KC expressed concern that ‘the timetable for the review is too slow given the year-on-year decline in providers’ and warned that ‘unless interim measures are put in place to shore up existing provision there will be no system left by 2025.’
Last week, the Ministry of Justice announced that it would assess the efficiency of all categories of civil legal aid provision – encompassing areas such as family, housing, mental health, education, discrimination and immigration law – and identify options to improve its long-term sustainability. However, the final report of the review is not due to be published until 2024.
Commenting on this aspect of the review, Vineall KC stated that the ‘delay creates a threat in itself’, drawing attention to the exodus of solicitors from the ‘legal aid market altogether because present levels of remuneration are simply unsustainable.’
The Bar Council Chair also addressed the knock-on effect of funding cuts in the Legal Aid, Sentencing and Punishment Act 2012 (‘LASPO’) on the capacity of litigants and their lawyers to advance cases. ‘The widespread closure of advice centres and high street solicitors providing early legal advice has created multiple problems in the system. Unnecessary and costly court cases, an increase in people struggling to represent themselves, and increasingly stressful work for lawyers having to firefight.’
The concerns expressed by the Bar Council over the severity of the problems with the civil legal aid system corresponds with earlier research from the body, which found that the scheme only survives on lawyers’ ‘goodwill’. As previously reported on The Justice Gap, the Bar Council’s 2021 report Running on Empty highlighted the ‘profound impact’ that the LASPO cuts had on the legal services sector, with clients having to unnecessarily take cases to court due to the lack of good quality, early legal advice.
The report also drew attention to the effects of the ‘culture of refusal’ in the Legal Aid Agency, with lawyers having to ‘battle’ negative decisions relating to their client’s cases, and the increasing trend of cases being brought by litigants in person due to their inability to instruct a lawyer. In 2017/18, only 36% of parties were recorded as having legal representation in private law cases that had at least one hearing, compared to 58% of parties the year before the LASPO cuts were introduced.
The issue of inequality of arms was found to present most prominently in inquests due to the limited circumstances in which bereaved families can access legal aid and the fact that decisions on funding are often made late.
In a statement accompanying the Ministry of Justice’s announcement, the Justice Minister Lord Bellamy said: ‘This comprehensive review will give us a wealth of evidence on the civil legal aid systems, how services are provided, and of the issues facing the market. Identifying how we can make provision work best for everyone will help ensure we are building a more efficient and effective system to deliver sustainable legal aid support well into the future.’