Michael Andrew
Lawyers have responded with scepticism to the government’s planned review of the legal aid regime, saying they suspect it will lead to further cuts and make access justice more difficult.
They hope the review, announced last month by Justice Minister Paul Goldsmith, will address well-known and much-discussed problems within the system. And while nothing has yet been publicly revealed about the structure and content of the review, the government says it will “ensure the scheme is efficient, is of good quality and promotes access to justice in a way that is sustainable and cost-effective”.
But lawyers spoken to by LawNews say they cannot see any improvements arising from the review unless more money is pumped into legal aid – an outcome they say seems unlikely, given the government’s austerity drive.
Criminal barrister and Vice President of The Law Association, Julie-Anne Kincade KC, says it’s difficult to see what the government intends to accomplish from the review.
“Well, when do governments give out more money? And I just anticipate that that this review is being instigated because there’s a belief that they can save money somehow, which means cuts.
“We have all of these projects that go on about efficiencies, like CPIP, and that’s been a project that’s taken years and is only beginning to sort of kick in now. And there are pilot projects that go on around the country of different systems whereby everyone involved in the justice system is trying to improve efficiencies, which in turn, is cheaper, because the more efficient the court hearings are, the court staff and the courts running all of that means it’s cheaper.”
Constant review
Kincade said the Legal Services Commissioner regularly reviews the system to ensure it is working well and is fit for purpose, and she doesn’t understand what the government could do any differently.
LawNews revealed in September that some legal aid lawyers were working for less than the minimum wage or receiving no payment at all for some files, raising fears that the system was becoming untenable. At the time, some lawyers were talking about strike action, as has occurred in the UK.
“There are criminal lawyers already expected to work for a relatively lower remuneration than our colleagues did 20 or 30 years ago,” Kincade says. “And we’re working at a level which is a lower remuneration than our colleagues in the private sector.”
“What’s happening now is, in certain parts of the country, older lawyers are retiring, and younger lawyers are not replacing them. So, there are some parts of the country where legal aid providers are very thin on the ground and already overstretched.
“It’s a creaking ship as it is and if this government thinks that as a result of this review, it will be saving more money by cutting the money lawyers earn, the work will not be done.”
Another practitioner LawNews approached said on the surface, the government’s announcement appears encouraging, as it is drafted as a response to feedback from the judiciary, the Bar and the public. However, he worries that it doesn’t align with the government’s track record of cost cutting.
Devon Kemp says the review appears to be a result of the minister accepting that the funding is insufficient, or that there’s a problem with the system that needs to be resolved.
“I think that would be a positive and generous interpretation of why this review is coming about. But I think that given the government’s agenda, there’s reason to be sceptical that perhaps the review is motivated by a desire to see where savings could be made as well.
“I think there’s reason to be cautious and not jump to being hopeful about where this review is going.”
Kemp, a criminal barrister and member of The Law Association’s Criminal Law committee, agrees that the system is deeply flawed and there needs to be significant improvement, particularly where remuneration is concerned.
Although there was a recent increase in the hourly rate, the pay overall has not been adjusted for inflation since 2008 and remains a fraction of the hourly rate for Crown solicitors.
“And there’s no legitimate reason for that, no real justification…. So that does beg the question, why are legal aid lawyers not being paid at least on par with what Crown solicitors are earning?”
Kemp acknowledges that it might not be the best time economically to increase pay for legal aid lawyers and he wouldn’t be surprised if the government viewed the current costs of the system as unsustainable.
“I think the wording may be deliberately vague. If the minister is saying his inquiry is designed to correct the sustainability issues – in other words, to pay for those things which will make working in legal aid more sustainable – then that’s great.
“But I worry also that what he means by ‘sustainable’ is that the costs of legal aid work are unsustainable for the government. Well, then that’s discouraging.”
The ministry’s view
While Goldsmith’s office has not released any more information on the review, the Ministry of Justice – which will conduct the review – has issued its own statement, saying the system has cost more to run in recent years.
“The legal aid scheme is under pressure, and balancing access to justice against responsible government spending proves an ongoing challenge. Legal aid spending has increased significantly in recent years and is expected to continue to do so,” the ministry said.
“Legal aid providers are also feeling the pressure, with increasing workloads across the profession that have been exacerbated in regions with fewer providers.
“Pressures on the scheme reflect what is happening in the courts, such as the increasing volume of court cases, the cost for third-party and specialist reports, and changes to legal aid eligibility and remuneration in recent years.”
The ministry has also said it would consider the recommendation of the Royal Commission of Inquiry into Abuse in State Care to remove barriers for accessing legal aid for civil proceedings involving abuse in care, such as eligibility criteria and repayments.
Barrister Shane Elliott says any tweak to the eligibility criteria is bound to be positive, as the low-income threshold excludes many from accessing legal support.
However, as legal aid is currently running on the bare minimum, he suspects any change might come at the expense of some other part of the system.
“To improve legal aid takes more money. So, it’s just how much money they’re putting into it.”
“You hear ‘review’ and you think, ‘well, maybe that’s good’. But I can imagine some proceedings being cut. I just don’t really see how they could cut anything further in terms of efficiency.”
Elliott often deals with the considerable administrative burden of legal aid applications and engaging with the “faceless” legal aid office. He warns that any further cuts to that part of the system will simply make the work untenable.
“I’m sure the people that work there are massively under-resourced – trying to cover a plethora of files. They probably don’t have the legal support they need anymore. So, they’re doing the best they can with what they’ve got.
“It’s just a question of scarcity.”
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