Let’s consider for a moment two very recent statements from the Legal Aid Agency (LAA) and the Ministry of Justice (MoJ):

Both of these statements were responses to Law Society Gazette journalist Monidipa Fouzder’s request for comments about the recently published Legal Aid Means Test Review consultation (CP 646, March 2022). Specifically, she was asking a critical question about civil legal aid: a more generous legal aid means test makes more people eligible for help, but with provider numbers in steady decline, who is going to provide that help? This is a question that we at LAPG have been asking for years.

Having worked in policy for a decade or more, I can say that there are so many things wrong with those two government statements that they are obfuscation at best and downright misleading at worst. And they are disappointing because they have been released in response to what are generally positive and progressive proposals for reform. But our focus here is on one particular aspect of those statements – the inference that the MoJ has the ability to monitor the sustainability of the civil legal aid market, and the data to determine whether the market has sufficient capacity. The MoJ does not.

This lack of data to inform legal aid policy-making has been a problem for many years. The abolition by the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) of the Legal Services Research Centre was perhaps the final nail in the coffin for detailed, independent and well-resourced research about access to justice, at least from the perspective of analysis that was difficult for the government to ignore. And when the government finally published the Post-implementation review of Part 1 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) (CP 37) in February 2019, it accepted, on a number of fronts, that more research needed to be conducted to inform policy development and service design. Since then, though, no research has been commissioned by government on the sustainability of civil legal aid services. The MoJ has flirted with the idea of carrying out a review of civil legal aid similar to the recently concluded Independent Review of Criminal Legal Aid (final report published 29 November 2021), but nothing of substance has actually happened.

So, what data does the government have at its disposal to ‘monitor the sustainability of the civil legal aid market’ or be ‘confident that the market has sufficient capacity’? It knows which organisations have legal aid contracts, where they are, what areas of work they do, whether they are in private practice or the not-for-profit sector, and how many cases are opened and closed. It collects data on case outcomes (and does nothing with it) and client demographics. It knows what these cases cost and collects reams of data on compliance issues, which tells you something in itself. It bundles up most of the information it collects and releases it quarterly through the Office for National Statistics. But does it know how many fee earners conduct cases? Does it know about the financial resilience of providers? Does it know if providers can recruit or retain the staff that they need to deliver services? Does it know if they have the resources to invest in staff training and welfare, IT upgrades or business planning? Does it know if they have the confidence to remain in legal aid for the next three to five years? No, it knows none of this, and it hasn’t tried to gather the data it would need to make any sort of informed assessment of market sustainability or capacity. To know whether a market has capacity to meet client demand, the government would first have to measure that demand. And it hasn’t. Ever.

When the government published its Legal Support Action Plan (Legal support: the way ahead, CP 40, February 2019), it committed to piloting a range of new services and interventions, and then conducting research to assess ‘what is the best way to help and support those who need it’ (page 7). It did not commit to establishing whether civil legal aid providers are sustainable or whether the market, such as it is, has capacity to meet demand. At the time, we asked the MoJ why there were no plans to improve the lot for civil legal aid providers, or at least carry out research into what was needed to ensure a steady supply of sustainable providers. We were told this was not a priority, so we decided to conduct this research ourselves.

After many months of planning and testing with our independent team of academics from Cardiff and Newcastle Universities, five separate surveys were launched in April 2021 under the banner of the Legal Aid Census. We wanted to establish a baseline of demographic data about legal aid practitioners and gain a better understanding of critically important issues such as education, training, salaries, fee arrangements and job satisfaction. With tremendous support from organisations across the sector, the census travelled far and wide to capture data and experiences from former, current and prospective future practitioners, and from those running legal aid organisations and the chambers they instruct. The response was overwhelming, with more than 2,200 participating individuals and organisations. Over the following months, the academic team had such a surfeit of quantitative and qualitative data to compile and analyse that they recruited researchers from Monash and Oxford Universities. They have now presented us with findings that paint a very compelling picture about the legal aid workforce. (To download a copy of the report, visit LAPG’s website.)

The academic report provides detailed demographic data about individual respondents and the key characteristics of organisations delivering legal aid. The analysis is divided into sections focusing on:

Current fixed fees, which apply to a significant proportion of legal aid cases, were devised by the government before the advent of LASPO and there is no mechanism in place to ensure that they increase as the costs of delivering services go up over time. Fixed fees were also introduced based on the range of cases in scope at the time, and LASPO removed the vast majority of smaller or simpler cases. The majority of survey respondents (94.3 per cent) stated that they worked more hours than they were paid to work under the fixed fee regime. On average, practitioners worked 106 minutes for every 60 minutes of remuneration. Working longer hours than you are paid for is not sustainable, either from an economic or well-being perspective. As one respondent put it: ‘I have to work longer hours and take less annual leave than my privately-funded counterparts. I sacrifice my weekends and evenings regularly.’ This also has a direct impact on client access, with another respondent reflecting what we hear regularly from beleaguered members: ‘[We] take on fewer legal aid cases [and] avoid cases where we think they will be unprofitable because of the fixed fee.’

As noted above, there are many significant takeaways and talking points from the census, and we can’t summarise them all here. The census has, possibly for the first time, given us incontrovertible data that demonstrates that the government must act now to ensure that civil legal aid providers are more sustainable and more resilient. Providers continue to withdraw from civil legal aid – a 36 per cent reduction since 2012.3House of Commons Written Question 121917, 9 February 2022; answered 21 February 2022. The number of new civil legal aid cases has fallen by 69 per cent since LASPO, to a record low in 2020/21 of 234,512.4Legal aid statistics tables – July to September 2021, MoJ/LAA, 16 December 2021, table 1.2. Nothing in the official statistics, or the census data, tells us that the market has capacity to meet increasing demand.

Only immediate and decisive action from government will encourage new providers to take on legal aid, or enable existing providers to survive and expand. The success of government policy such as the Means Test Review rests entirely on its willingness to act now on market sustainability. The government anticipates around 2m more people will have access to civil legal aid as a result of changes to the means test.5‘Legal aid sector put on sustainable footing for years to come’, MoJ press release, 15 March 2022. But how is this possible given diminishing supply? The simple answer is, of course, that it is not.