Access to Justice

The eligibility threshold for criminal legal aid in the magistrates’ court is shockingly low and is contributing to increasing levels of self-representation. It is a clear denial of justice that an individual working for the national minimum wage may earn too much to be eligible for legal aid in the magistrates’ court. (Conclusion, Paragraph 11)

The government should immediately implement the Means Test Review and uprate the proposed thresholds to reflect inflation and updated cost-of-living data since the review’s baseline year. It should publish the methodology and revised thresholds alongside its implementation so that providers and clients can understand the government’s rationale. (Recommendation, Paragraph 12)

The government should establish an independent mechanism to review evidence around average incomes and rates of self-representation, which can formally recommend future uplifts to the Lord Chancellor. We suggest this could be the Criminal Legal Aid Advisory Board. (Recommendation, Paragraph 13)

The full extent of self-representation for imprisonable offences in the magistrates’ court is not well understood because the government does not publish reliable data. Best available estimates suggest it could be as high as 50%, which creates an unacceptably high risk of miscarriages of justice. (Conclusion, Paragraph 23)

The government must publish data on representation in magistrates’ courts and conduct independent research on case outcomes (as recommended in the Lammy review and by our predecessor committee). (Recommendation, Paragraph 24) 56

The government must address how it will ensure defendants are not sentenced to a year or more in prison without any legal representation. This might include, but is not limited to: a. Implementing recommendation 29 of the Independent Review of the Criminal Courts by increasing income thresholds for legal aid in the magistrates’ court in line with the current Crown Court thresholds for sentencing in either way cases. b. Committing to not increasing magistrates’ court sentencing powers until the recommendations of the Means Test Review, or any new government equivalent, are implemented. (Recommendation, Paragraph 25)

The position of the criminal duty solicitor scheme is dire, increasing the risk of miscarriages of justice and negatively impacting the government’s ability to reduce the courts backlog. (Conclusion, Paragraph 34)

Targeted increases to some police station fixed fees are unlikely to be sufficient to ensure the sustainability of the service. The government has said that its intervention to increase funding for criminal duty solicitor schemes has put them on more stable footing. However, we are concerned that available evidence suggests this will be insufficient to arrest the decline of the service. (Conclusion, Paragraph 35)

The government should liaise with the police and relevant stakeholders, such as The Law Society, to identify areas where shortages of duty solicitors are negatively impacting the administration of justice. The Lord Chancellor should use their powers under the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) section 2(2) to directly fund additional duty solicitors in these areas. (Recommendation, Paragraph 36)

The government should publish, within six months, its assessment of the number and geographical distribution of duty solicitors required to provide sustainable police station and magistrates’ court coverage. Where schemes fall below that level, the Lord Chancellor should use their powers under LASPO to fund additional provision directly or through targeted contractual incentives. (Recommendation, Paragraph 37)

Available evidence suggests that the financial position of legal aid providers has not improved since the report of our predecessor committee in 2021. It has broadly deteriorated further. There is significant evidence that criminal legal aid rates are fundamentally uneconomical for providers, who must cross-subsidise fees with private work to remain solvent. (Conclusion, Paragraph 52) 57

Due to its slow implementation, the minimum funding outlined in the Bellamy review as a necessary “first step” is now outdated. Recent government increases in criminal legal aid fees, and its match-funded pupillage scheme, are welcome. However, these only enact the minimum cash requirements of the Bellamy review, which is now five years old. There is understandable distrust between the legal profession and the government over future funding for criminal legal aid. (Conclusion, Paragraph 53)

Legal aid rates must be reviewed and set via an independent process or mechanism. The Committee suggests this could be the Criminal Legal Aid Advisory Board (CLAAB). The CLAAB, or a new body should the government choose to create one, must have a statutory basis and report annually to parliament. (Recommendation, Paragraph 54)

Under the umbrella of the CLAAB, or otherwise, the government should set targets for recruitment and retention of criminal legal aid lawyers and take action if these are not met. These targets should be set at levels which will ensure the continued sustainability of criminal legal aid. (Recommendation, Paragraph 55) Civil Legal Aid

The proportion of adults in England and Wales eligible for civil legal aid is unacceptably low and misaligned with its policy goals. There is overwhelming evidence of a growing “justice gap” in England and Wales, whereby people are both ineligible for legal aid, and unable to afford legal advice and representation privately. Those in the ‘justice gap’ are denied access to justice. (Conclusion, Paragraph 62)

As with criminal legal aid, the government should immediately implement the Means Test Review and uprate the proposed thresholds to reflect inflation and updated cost-of-living data since the review’s baseline year. It should publish the methodology and revised thresholds alongside its implementation (Recommendation, Paragraph 63)

To prevent the ‘justice gap’ growing further in future, the government must institute a mechanism of regular uprating of the means test in line with pre-defined criteria. This could involve, for example, pegging the income threshold to median earnings. (Recommendation, Paragraph 64)

Passported benefits for legal aid are vital both in ensuring those of limited means can access services, and in easing the administrative burden on legal aid providers. It would be a wasteful duplication to require providers to means-assess potential clients who are already in receipt of means- tested benefits. (Conclusion, Paragraph 69) 58

The government must commit to retaining “passporting” for civil legal aid in relation to those state welfare payments which are currently passported. This is crucial not only to protect access to justice, but also to minimise administrative burden on legal aid providers. (Recommendation, Paragraph 70)

In furtherance of its strategy to combat violence against women and girls, the government should ensure that a party is not left unrepresented in family proceedings involving domestic abuse, solely because they are in low-paid work rather than in receipt of a passported benefit. (Recommendation, Paragraph 71)

Civil legal aid rates are fundamentally uneconomical for providers, particularly in non-housing and non-immigration and asylum categories. Urgent action, of a greater scale than currently offered by the government, is required to retain even current levels of supply. (Conclusion, Paragraph 78)

As with eligibility, the government has failed to properly implement recommendations regarding improving system sustainability. Targeted interventions in civil legal aid, such as housing and immigration fee increases, are too little, too late to prevent further decline. In order to remain viable, the few civil legal aid providers who remain must cross- subsidise legal aid work with private fees. This lowers their capacity to deliver legal aid work and drives up prices for those ineligible for legal aid. (Conclusion, Paragraph 79)

Uplifting other civil legal aid fee schemes in line with housing and immigration increases is the minimum requirement to arrest the current lack of service provision and ongoing decline in the provider base. Fee increases should be retrospective, meaning they apply to work undertaken from the date on which the increase takes effect, rather than only to certificates granted after that date. (Recommendation, Paragraph 80)

In line with our criminal legal aid recommendation, civil legal aid rates should be subject to regular independent review and uplift to ensure continued viability of providers. (Recommendation, Paragraph 81)

Insufficient numbers of young lawyers are undertaking legally aided work in civil and family law. Firms lack capacity to train new staff or invest in new technology. (Conclusion, Paragraph 86)

The recent government approach of targeted intervention in particular areas of civil law is insufficiently proactive, meaning that future provision of civil legal aid is not on a stable footing. The government is not thinking 59 strategically about its future supply of lawyers or how to ensure sectoral retention. Risks to the sustainability of the legal aid system are currently materialising. (Conclusion, Paragraph 87)

The government should, within 12 months, publish a civil legal aid workforce strategy. This should cover recruitment, retention, training capacity, succession planning and regional shortages. (Recommendation, Paragraph 88)

The government should use its work on civil legal aid demand to target its interventions by area and category of law. In line with criminal legal aid, the government should directly fund training schemes for the most underserved categories of civil law. (Recommendation, Paragraph 89)

We welcome the Ministry of Justice’s efforts to improve its monitoring of unmet demand. However, the evidence laid out above is clear and compelling enough for action to be taken now to address supply failures. (Conclusion, Paragraph 100)

Despite its efforts, the Ministry of Justice lacks a sufficient understanding of legal aid demand, and consequently its current measures of service coverage are invalid. The Legal Aid Agency, due to the powers delegated to it as an executive agency, lacks the authority or tools to intervene effectively and ensure service provision. (Conclusion, Paragraph 101)

Legal aid capacity is significantly constrained across all areas of social welfare law and mediation, and recent targeted increases in immigration and housing fees are unlikely to appreciably increase provision. We are not convinced that actions the Ministry of Justice is currently taking, including provider surveys, are sufficient. (Conclusion, Paragraph 102)

The reduction in the number of legal aid providers, both nationally and within particular areas of law and geographical regions, is sufficient to demonstrate that legal aid service provision is insufficient. There is no evidence to suggest that demand for legally aided services has decreased in line with this reduction. (Conclusion, Paragraph 103)

The government must act now and intervene directly to improve service provision in areas of law, and geographical regions, that are underserved. Options include, but are not limited to: a. Delegating authority to the Legal Aid Agency to offer greater contractual incentives to providers in areas with excess demand or lack of provision; b. Where geographical areas or areas of law have excess demand or lack of provision, offering greater financial incentives to provide services either through enhanced remuneration rates or direct funding. (Recommendation, Paragraph 104) 60

As part of our above recommendations on workforce strategy and improving service provision, the Ministry of Justice must: a. Confirm how it monitors whether it has sufficient legally aided mediation capacity to meet demand; b. Produce an assessment of the number of mediators it requires to deliver this vital service, and how it will arrest the consistent year-on-year decline in mediators offering legal aid. (Recommendation, Paragraph 105)

Remote advice can help extend provision, but it cannot be treated as a complete substitute for local face-to-face services, particularly for digitally excluded or vulnerable clients and for cases involving court proceedings. (Conclusion, Paragraph 108)

In our view, there is substantial evidence that the Lord Chancellor is failing in their statutory duty to “secure that legal aid is made available”. The mechanisms through which the Lord Chancellor may be held to account for this duty, such as judicial review, are insufficient to ensure adequate provision. (Conclusion, Paragraph 113)

The government is in our view not taking sufficient steps, or exercising its full powers, in relation to fulfilling the Lord Chancellor’s statutory duty. This is evidenced by the poor level of service provision across all categories of law. (Conclusion, Paragraph 114)

The government must take an active role to plug gaps in legal aid provision. The Lord Chancellor should use their powers under section 2(2) of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 to either direct grants to providers in areas with excess demand, or increase delegated authority to the Legal Aid Agency to provide contractual incentives for providers in underserved areas. (Recommendation, Paragraph 115)

Complex legal aid scope for civil legal aid matters creates confusion among both professionals and clients. It also contributes to system inefficiency and undermines provider sustainability. (Conclusion, Paragraph 118)

The restrictive scope of the legal help scheme undermines early intervention, causing legal issues to escalate and contributing to increased harm and use of resources. (Conclusion, Paragraph 119)

Accepting there is a lack of government appetite to reintroduce broad categories of law back into the legal aid scheme, the Ministry of Justice should reduce barriers to providers giving holistic early legal advice. For example, it should allow providers to give early advice on a wider range of legal issues under controlled work contracts. (Recommendation, Paragraph 120) 61

If the Hillsborough Bill implementation is successful, legal aid must be available both sufficiently early in a case, and at a rate which is comparable both to that of public authorities and other fee schemes. (Conclusion, Paragraph 126)

Expansion of legal aid to inquests is positive, but there may not be capacity in the system for sufficiently qualified and experienced lawyers to do this work. (Conclusion, Paragraph 127)

Legal aid must be available sufficiently early in the process to allow for cases to be properly assessed and prepared. The Ministry of Justice must set out how it will address funding the legal work required on these cases prior to public bodies being named as interested parties. (Recommendation, Paragraph 128)

To preserve the principle of equality of arms, legal aid barristers should be paid comparable rates to state barristers in claims against public authorities. In order to prevent cannibalisation from other civil legal aid fee schemes, non-inquest categories must also have their fees uplifted such that they are competitive with any new rates chosen by the government. (Recommendation, Paragraph 129)

Access to family legal aid is essential to the government’s ambition to halve violence against women and girls. Current eligibility rules, provider shortages and uneconomic remuneration mean that survivors of domestic abuse are often unable to secure representation when they most need it. (Conclusion, Paragraph 134)

The government’s forthcoming family justice strategy should include specific measures to improve access to legally aided advice and representation for survivors of domestic abuse, including fee uplifts and simplified evidence requirements. (Recommendation, Paragraph 135)

The Exceptional Case Funding scheme does not function as an adequate backstop to ensure the protection of individual rights. (Conclusion, Paragraph 142) 62

The Exceptional Case Funding scheme should be reformed in the following ways: a. The Ministry of Justice must regularly review the types of cases that obtain Exceptional Case Funding. Cases which are consistently granted funding should be included within the scope of the main legal aid scheme. b. Costs incurred by providers to apply for the scheme should be recoverable, especially if the application is subsequently granted. (Recommendation, Paragraph 143) The Legal Aid Agency

The organisational set-up of the Legal Aid Agency remains deficient in delivering access to justice. The objectives of the Legal Aid Agency are construed narrowly and relate to improving processing times and reducing error. There is an insufficient focus on the policy objectives of the legal aid scheme as a whole, namely enabling access to justice. (Conclusion, Paragraph 149)

Despite being the body tasked with administering the legal aid scheme, the Legal Aid Agency is ill-equipped to ensure its service provision is sufficient to meet demand. Existing research on legal aid demand and coverage is entirely sourced from independent researchers. (Conclusion, Paragraph 150)

Administrative and audit requirements imposed on providers further damage their economic viability and are disproportionate for established providers. Practitioners under the legal aid scheme are required to undertake significant tasks to fulfil audit and contractual requirements which are unpaid. (Conclusion, Paragraph 151)

In the short term, the Ministry of Justice should reform the Legal Aid Agency’s objectives and delegated authorities so that it is responsible not only for processing applications and controlling error, but also for monitoring legal need, identifying unmet demand and securing adequate provision. The Legal Aid Agency must reduce unpaid administrative work by simplifying cost guidance, reducing unbillable work for providers, and piloting a high-trust model. (Recommendation, Paragraph 152)

In the longer term, the Ministry of Justice should consult on whether the Legal Aid Agency’s current institutional form is capable of delivering access to justice. We are supportive of proposals that would involve the government taking on some risk from providers, for example by being responsible for eligibility testing, or delegating more authority over cases to providers. (Recommendation, Paragraph 153) 63

Legal aid providers and clients have been insufficiently compensated for the additional work and data loss caused by the 2025 cyber- attack. The response of the Legal Aid Agency and Ministry of Justice to informing and safeguarding victims has not been good enough. (Conclusion, Paragraph 167)

We are concerned that current sums committed to restoring and upgrading the Legal Aid Agency’s IT systems will not be sufficient, and will come too slowly, to prevent further negative impact on the provider base. (Conclusion, Paragraph 168)

The Legal Aid Agency must monitor firms who have withdrawn their services due to the breach and provide incentives for them to remain in the sector. This could include direct financial assistance in line with our recommendations from chapter three. (Recommendation, Paragraph 169)

The Ministry of Justice must accelerate plans, and increase funds available, to upgrade the Legal Aid Agency’s digital infrastructure which is not fit for purpose. This should include a commitment and published timeline to fully replace the Client and Cost Management System (CCMS) with a modern system by the end of this parliament. Any new system should integrate administrative processes such as eligibility testing into its functionality. (Recommendation, Paragraph 170) 64