The Law Society has issued guidance urging criminal legal aid firms to conduct ‘viability reviews’ due to ongoing governmental inaction on necessary reforms.
The Law Society has called upon criminal legal aid firms to undertake ‘viability reviews’ to evaluate their capacity to continue offering services. This advice, issued amidst frustrations over a lack of sufficient governmental response, aims to determine whether firms should scale back or entirely withdraw services unless significant reforms are introduced. Richard Atkinson, poised to assume the role of society president, emphasised that the longstanding dedication of criminal legal aid lawyers has masked deeper systemic issues, allowing governments to sidestep difficult decisions. He candidly stated, “That goodwill has run out.”
The guidance from the Law Society, released in response to the Ministry of Justice’s (MoJ) recent procurement process for upcoming contracts, stresses the importance of firms informing the Legal Aid Agency (LAA) and MoJ if services are curtailed or ceased. Such actions would counteract misconceptions about firms’ ability to operate viably while meeting local needs.
The underlying frustration stems from a 2021 review by Lord Bellamy that recommended a minimum 15% increase in pay for criminal law solicitors, of which only 9% has been realised. Further exacerbating this situation is the government’s delay in responding to a judicial review’s findings earlier this year concerning the Bellamy review, with no action expected until November 2024. This delay coincides with an impending deadline for firms to secure positions on 2025’s duty solicitor rotas.
The guidance suggests forwarding potential clients, unable to receive services due to service reductions, to the Public Defender Service (PDS). However, the Law Society raised concerns about the PDS’s insufficient capacity to address unmet needs, a view corroborated by evidence presented by the Lord Chancellor in a judicial review.
A failure to resource the PDS adequately, despite being the last resort provider, could see Lord Chancellor Shabana Mahmood breaching her obligations under the Legal Aid, Sentencing and Punishment of Offenders Act 2012, as well as common law and article 6 duties. This issue has prompted the High Court to affirm that eligible individuals can pursue judicial reviews if denied legally aided services.
Addressing a Criminal Law Solicitors Association conference, Mr Atkinson warned of an immediate crisis in legal aid, stating, “This may well be the last opportunity to walk back from the brink and the time we have to do it is very short.” His remarks were underscored by evidence of a decline in the number of firms undertaking civil legal aid post-tender, marking a tangible collapse within the system.
Mary Prior KC, chair of the Criminal Bar Association, reflected on the desperate state of affairs, noting that barristers secured a 15% increment in fees albeit at significant personal cost. She expressed deep regret over the Law Society’s advice to criminal solicitors to either withdraw from or reduce their involvement in criminal legal aid, warning that without these solicitors’ essential contributions, “The criminal justice system would come to a complete halt.”
The Law Society’s guidance marks a critical junction for criminal legal aid firms, urging systemic reform to avert a looming crisis.
