For legal aid watchers, three important documents emerged in late January and early February. The first, PA Consulting’s survey of civil legal aid providers in England and Wales, reports on one of the strands of the Review of Civil Legal Aid (Survey of civil legal aid providers in England and Wales: informing the Review of Civil Legal Aid, Ministry of Justice (MoJ), January 2024). The second is the judgment in The Law Society’s judicial review case against the lord chancellor in relation to criminal legal aid (R (Law Society of England and Wales) v Lord Chancellor [2024] EWHC 155 (Admin)). The third is the National Audit Office’s (NAO’s) value for money report on the government’s management of legal aid, which reviews progress since its highly critical 2014 report on the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) reforms (Government’s management of legal aid: Ministry of Justice, Legal Aid Agency, HC 514, 9 February 2024).

Beginning with the judicial review, The Law Society argued that the lord chancellor was in breach of the duty in LASPO s1 to secure the availability of legal aid in accordance with Part 1 of the Act. The court received evidence from criminal defence solicitors working in the police station duty schemes across England and Wales, which formed a ‘depressing evidential picture’ (para 181). The Law Society succeeded on an irrationality argument but not on the grounds of a breach of the s1 duty.

Singh LJ and Jay J set out what would need to be established for a breach of the duty: that, on the balance of probabilities, the system of provision ‘is inherently so defective, in the sense that it will produce unfairness in at least a significant and identifiable number of cases’ (para 173). This requires ‘[p]roof of an actual or at least an imminent breach’ (para 179). A ‘real risk of a breach’ would not be sufficient (para 173).

The judges concluded, on the evidence, that all of the duty schemes across England and Wales were operating, albeit some of them via short-term contingency arrangements that were accepted to be unsustainable. Although the evidence indicated that some people chose to proceed with police interviews without waiting for a legal representative, and that some of this was because of the likely delays, they accepted the lord chancellor’s submission that this was ‘multifactorial’ (para 179).

They found that the evidence did not demonstrate that the system was or would imminently be ‘inherently defective’ (para 177); duty solicitors, even in the most threatened schemes, were ‘just about managing with back-up from elsewhere’ (para 177), notwithstanding that the ‘system depends to an unacceptable degree on the goodwill and generosity of spirit’ of the lawyers (para 176). Consequently, there were ‘no legal aid deserts and no identifiable cases of unmet need’ in the duty scheme (para 177).

My research and the new PA Consulting report show that in civil (non-family) legal aid this is no longer the case. For immigration, there is a deficit of at least 51 per cent between the number of new asylum claims (main applicants only, discounting dependants) and the number of new immigration matters opened in England and Wales (Jo Wilding, ‘Over half the people seeking asylum are now unable to access a legal aid lawyer’, Free Movement, 25 October 2023). This amounts to at least 37,450 people who are entitled to a legal aid representative, overwhelmingly likely to be financially eligible, but unable to find one with capacity.

There are two people accredited to do immigration legal aid work in the whole South West below Bristol; there is one in the whole of Wales north of Cardiff and Newport (ie, the far south of Wales). Every single region of England and Wales has a deficit between measurable need and provision, and most local authority areas have no asylum representatives. That matters all the more as the Home Office moves away from the old ‘dispersal areas’ to a ‘full dispersal’ of asylum applicants and unaccompanied child applicants to every part of the UK (except Scilly).

The breach of LASPO s1 is very clearly made out, on the Law Society test, for asylum cases. For other areas of law, it is a little more difficult to quantify need. The NAO report notes that not all procurement areas have a Housing Court Duty Possession Scheme provider (para 2.21, page 35). The PA Consulting report gives us new data on the number of cases that are prima facie eligible for civil legal aid (including family) being turned away by each participating provider: an average of 26 by all providers in the month preceding the survey, rising to 47 for London-based providers, and 39 for not-for-profits. It is harder to determine whether those turned away find a provider eventually or go without.

Meanwhile, the NAO criticises the MoJ for: still failing to understand the scale of cost-shifting caused by legal aid cuts, 10 years on; a ‘reactive approach to market sustainability issues’ (para 18, page 11); and ‘continu[ing] to lack an understanding of whether those eligible for legal aid can access it, particularly given available data, which suggest that access to legal aid may be worsening’ (para 18, page 11). The NAO report does not specifically discuss the potential breach of the s1 duty but presents a wealth of evidence that that duty is not being met.

Since the lord chancellor fails to carry out any research on unmet need (itself arguably irrational, given the s1 duty), those of us in and around the sector may want to start collecting the data to show how the crisis in civil legal aid meets the test that has now been laid down in the Law Society case.