“A system slowly coming apart at the seams”

 Our message to criminal legal aid defence solicitors: get organised and unionised

These are dark times for criminal legal aid. The sector is haemorrhaging defence solicitors seeking better pay and working conditions elsewhere, and there are not enough young solicitors entering it to replace them. The logical end-point of this trajectory is that ultimately there will be no one left doing this vital work ensuring access to justice for defendants who cannot afford to pay for their representation.

In November 2021, Sir (now Lord) Christopher Bellamy published his Independent Review of Criminal Legal Aid following the most detailed and wide-ranging review of the system ever undertaken. His conclusions were stark and unambiguous. Chief amongst them were that “absent a substantial increase in funding, there is a high risk that the system will simply be unable to cope with the challenges ahead”. In relation to solicitors, he recommended an overall immediate and bare-minimum increase in fees of some 15% to enable criminal legal aid firms to invest in recruitment, compete for talent, maintain quality, provide training, and ensure retention.

The former Government’s initial response was to uplift fees overall by a mere 9%. At the time of writing, over two years later, fees are in the process of being uplifted to an overall level of 11%, which is still short of the recommended bare minimum and which has already been negated by inflation and the increases in the cost of living between 2021 and 2022.

On 31^st January 2024, the High Court gave its decision in The King (on the Application of the Law Society of England & Wales) V Lord Chancellor [2024] EWHC 155. The main focus of this litigation was the fact that the Government had not uplifted all legal aid fees relevant to the remuneration of solicitors’ work by the full recommended 15%. The case was vigorously defended by the previous Government, but the court ultimately found against it on the issue of the approach it had taken to the decision not to uplift all fees paid to solicitors by 15%. In the judgment, the court said that “the evidence from solicitors working at grass-roots level is that the system is slowly coming apart at the seams. The system depends to an unacceptable degree on the goodwill and generosity of spirit of those currently working within it. New blood in significant quantities will not and cannot be attracted to criminal legal aid in circumstances where what is on offer elsewhere is considerably more attractive both in terms of financial remuneration and other benefits. Unless there are significant injections of funding in the relatively near future, any prediction along the lines that the system will arrive in due course at a point of collapse is not overly pessimistic”.

The previous Government did not commit to the full 15%, nor did it say how it proposes to remedy the illegality the High Court identified in the process it followed when it made the decision not to uplift fees by the full 15%. The new Government is yet to publish specific policy detail in relation to legal aid, but the mood-music emanating from that direction is that there is no appetite, indeed no capacity, for any new meaningful public spending. For those hoping that the Bellamy recommendations will be implemented in full, therefore, the signs are not promising. Even more unpromising are the signs that there will be significant new investment over and above the bare minimum recommended by Lord Bellamy introduced into the system any time soon, given the fact that the previous Government was, when it was voted out of office, still in the process of partially implementing the bare minimum that was recommended over 2 years ago.

As the glimmer of hope that was provided by Lord Bellamy’s report recedes into the distance, therefore, we need to ask ourselves what we can do now to affect the change the profession needs in order to ensure it has a sustainable future. The answer in my view and in the view of the LCCSA committee is for criminal legal aid solicitors to organise collectively by joining a trade union. To that end, the LCCSA have launched the www.defendlegalaid.co.uk campaign to urge our members to join Unite the Union, whose Legal Sector Workers’ branch is ready and waiting to represent the interests of the rank and file in their fight for more investment into criminal legal aid as a means of securing better pay and conditions.

Legal aid firms still find themselves in a captive market, where increasingly unattractive legal aid contracts are offered safe in the knowledge that firms will accept them, even though the fees are too low and the administrative burden associated with them too high. This state of affairs cannot continue. We remain hopeful that the new Government has an understanding of the issues, but the will to address this crisis is yet to be demonstrated. The criminal legal aid defence community now has a golden opportunity to work together to ensure that a fair funding settlement remains on the agenda, but this will take a united front and an organised workforce. Only a properly unionised workforce has the ability to make the Government more receptive to reasonable requests for increased legal aid funding, which will lead to better pay and conditions overall. I and the LCCSA committee therefore urge legal aid criminal defence solicitors to get organised and unionised.

Edward Jones

LCCSA President