Urgent reforms to the legal aid system in England & Wales to secure the fairness of the justice system have been called for in a report by the House of Commons Justice Committee.
In findings that parallel the difficulties also facing practitioners in Scotland, the MPs warn that a rigid system of fixed fees and low pay is leaving firms specialising in legal aid struggling. Sustainability of legal aid providers is critical to ensure that those eligible for legal aid are able to be supported through the complexities of legal process, but criminal legal aid firms are finding it increasingly difficult to recruit and retain staff, and are unable to compete with the pay and conditions offered by the Crown Prosecution Service. Fewer barristers are able to build their career through publicly funded work.
The committee argues that the Government should remove the cap on what acquitted defendants can recover from central funds.
It also calls for the civil legal aid system to be overhauled, with a simplified system to make it easier for those eligible to access the services they require. The current system is preventing providers from providing early legal advice, causing some individuals' legal issues to escalate when they could have been resolved. Sustainability issues arise with civil legal aid also, resulting in "legal aid deserts" in certain areas, where people cannot access specialist advice for certain issues such as housing, immigration and community care.
The committee recommends that the Government takes a more flexible approach to legal aid funding, so that more organisations can access the necessary funding that would ensure consistent access to legal aid lawyers by the most vulnerable. It also finds that the current means test may also be creating a barrier to justice and impacting on the fairness of the justice system. Thresholds should be revised and regularly increased in line with inflation.
Justice Committee chair Sir Bob Neill MP commented: "In the last 20 years, efforts to reduce the cost of the legal aid bill have hollowed out key parts of the justice system. Fixed fees are failing to cover the cost of complex cases, the number of people receiving legal aid is falling and legal aid firms are struggling to keep going. Careers specialising in legal aid are becoming less attractive and legal professionals are moving to the CPS or private practice instead.
"This puts the fairness of the justice system at risk. We have called on the Government to ensure that the legal aid system provides an adequate level of funding to ensure that quality legal advice is available at the earliest opportunity for those in need of it. The fee structure should reflect the complexity of work that is needed and support a healthy legal aid sector. The fixed fee system, which has been left unchanged for 20 years, should end and be replaced with a flexible structure that supports the legal work required on a case."
Ian Moir, co-convener of the Law Society of Scotland's Criminal Legal Aid Committee, observed: "While this report relates to the system south of the border, we are facing very similar problems in Scotland. While the Scottish Government have listened to our concerns and taken some action in the form of increased fees, the trainee fund and the resilience fund, there is still a very long way to go to redress many years of underinvestment."