It is no surprise that there are fewer organisations delivering legal aid now than there were in 2010. Data from a decade ago pre-dates the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO), the crude and deliberate mechanism to cut legal aid expenditure. When you take areas of law out of scope, and introduce other restrictions, providers drop out or have little choice but to reduce their services. But what do the latest official figures tell us about how providers have fared over the past year or so? And given the clear government reluctance to increase fees, arguably the primary factor undermining viability, what else can be done to improve the health of an ailing sector?

The government is taking very different approaches in assessing the sustainability of criminal and civil legal aid – a rather pointless disaggregation, given that over 400 providers hold contracts in both areas across more than 600 locations. The viability of one impacts on that of the other, a point that I am sure will not be lost on Sir Christopher Bellamy QC as he chairs the Independent Review of Criminal Legal Aid. And I have confidence that even if he overlooks this point, the practitioners sitting on the panel will remind him of the need to consider the legal aid ‘market’ as a whole. Regardless, it remains a glaring omission that we do not have a formal, structured review of civil legal aid, and that the vast majority of workstreams arising from the LASPO post-implementation review, published in February 2019,1Post-implementation review of Part 1 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO), CP 37, Ministry of Justice, February 2019. are little more than tinkering around the edges of a broken system. They are certainly not designed with the sustainability of the provider base in mind. And so, as provider numbers continue to fall, what can we do?

The latest data on civil legal aid providers, considered at the January 2021 meeting of the Legal Aid Agency (LAA) and representative bodies, makes depressing but unsurprising reading. The data shared deals only with those areas still fully or partially in scope (ie, it does not include the more than 300 employment law providers that can no longer offer legal aid). According to the LAA, in December 2010, providers held 3,263 civil legal aid contracts and delivered services from 4,498 office locations. I don’t think anyone in 2010 was singing about the health and vitality of the legal aid sector, but a decade on, contract numbers have dropped to 1,961 contracts delivered from 3,077 locations – reductions of 40 per cent and 32 per cent respectively. And, as noted, this is without taking into account areas completely removed from the scheme by LASPO in April 2013.

How have providers fared over the past two years or so? The period April 2019–January 2021 saw the loss of 160 contracts and 269 locations. Sixty-two of those organisations have given up legal aid since lockdown commenced last year, taking 127 locations with them, and we suspect that more will come once providers lose the cushion of government measures like the furlough scheme. Quite predictably, some areas (like housing) have been hit hard, with big reductions in providers matching the significant drop in new cases. Only a comprehensive shake-up of fees, so that they cover costs and enable a sensible profit margin, will address the continuing slide. But there are other measures that the government could consider to ease the pressures on providers.

One such measure, which appears to be cost-neutral (something civil servants keep telling us is key), is changing the method that the LAA uses to dish out contracts. Currently, almost all civil contracts go out to tender towards the end of a contracting cycle – which is initially three years but can be extended by up to two years by the LAA. While this gives the LAA the ability to plan and target the resources it needs for tenders and periodic contract reviews, it also means organisations are effectively locked out of civil legal aid for up to five years, over the course of which the attrition caused by mergers, retirements, closures and providers simply giving up means a gradual decline in client access (as evidenced by the drop in numbers over the past two years set out above). Data held on tender processes indicates that there are providers out there willing to take on new contracts or join the provider base for the first time: the 2018 civil tender process saw an increase of over 200 contracted providers.

At times, the LAA has tried to address some of these issues by running ad hoc tender processes – it has recently done so to try to encourage take-up of housing contracts in areas with insufficient supply. Alternatively, it tenders for specific reasons, such as the face-to-face education and discrimination contracts that became available when the mandatory nature of the telephone gateway was removed. But these are top-down processes that follow a government agenda, rather than flexible, open processes that encourage new services, new investment and new ideas generated by providers in response to client need. And the lack of an open process means supply can dwindle in a particular location and remain unacceptably low for years without anyone in government assessing the impact on local people and communities and the services left to pick up the pieces.

The LAA is currently speaking to representative bodies about the shape of the next criminal legal aid contract. Discussions will follow about civil contracts ahead of the next tender. It is openly considering how to make the contracts more flexible and better attuned to current business practices and models of delivery, and is aware that current contingency arrangements might need to become permanent contract changes as the world in which we work has been altered inexorably by the pandemic. Now is also the time for the LAA to think about how it awards contracts. Yes, there are complications that come from a rolling tender programme, but given the state of the legal aid market, there is an overwhelming argument that if an organisation meets all the quality and compliance standards and wants to start operating now, or expand into a new location, it should not have to wait for the next national tender exercise.