Those who follow the legal press will be familiar with recent stories of legal aid reducing, ‘advice deserts’ growing, and specialist lawyers becoming thin on the ground. The Ministry of Justice (MoJ) figures illustrate the problem within just one area. In 2012/13, 82,554 social security cases had legal aid help, compared to just 443 in 2017/18.
I want to consider one of the less talked about impacts of this perfect storm of reductions: the steady disappearance of lawyers qualified to provide specialist legal support to the most vulnerable. In Suffolk, it took six months to recruit a housing lawyer for a new Law Centre. This followed a five year absence of a housing lawyer across the whole of Suffolk, leaving tenants without skilled representation in possession hearings1. With no housing law practice providing a legal aid service across Suffolk, there was an unfillable gap of geography in placements and limited channels for new trainee lawyers in housing law. One must also remember that a housing law practice typically links vulnerable people to a multitude of other services e.g. advice on complex debt or benefit delays which could spiral into eviction notices. The Suffolk example is just one illustration of the layers of pressures on those responsible for ensuring that access to justice and the delivery of legal services is not eroded for the most vulnerable.
It is not a great leap to recognise that there is a causal link between major drops in legal aid funded casework, absence of specialists in areas of law dealing with the most vulnerable, and a growing landscape of “advice deserts”. What effect might these developments have on the future supply of lawyers in key areas of criminal and civil justice?
The MoJ has now published a review of the effect of the major changes to legal aid following the passing of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (known as LASPO).
The impact is most noticeable in areas of housing, debt, social security benefits, family, employment, and immigration. In family law, for example, 36 local authority areas had no legal aid provision in November 2018.2 We at the Legal Services Consumer Panel believe the regulators and the MoJ should now address the risk of developing a shortfall of practitioners qualified in these areas by reviewing the education and training of the upcoming legal generation. Indeed, as a result of representations from the Consumer Panel and others, during the official consultation meetings, MoJ officials indicated a willingness to approach regulators developing training content to consider anticipated shortfalls in essential areas of access to justice (and legal aid) delivery.
So what has this to do with regulators’ commitment to consumers?
The Legal Services Board and frontline regulators have roles in maintaining access to justice, and, crucially, in examining and maintaining educational standards, provision and breadth of legal services.
The Solicitors Regulation Authority (SRA) has advanced the development of its new Solicitors Qualifying Exam. However, the lack of reference to mandatory social welfare law subject based modules has raised concerns by various commentators including the Bach Commission3 and Law Works4. An absence of determination to encourage these subjects in future training arguably sends a message that they should not be priority concerns in the evolution of legal practice and training5.
Indeed, the SRA’s own risk assessment acknowledged6 that the omission of social welfare law topics may lead to reduced opportunities for qualification and would likely impact on solicitors keen to work in already under-represented areas. The recent announcement of a one year postponement to the expected start date of the SQE7 presents an opportunity for a review of sector concerns.
No supporter of access to justice measures wants a drift back to the time when lawyers were so scarce, in certain areas affecting the most vulnerable, that they could be counted on one hand. Recently, Lord Justice McFarlane, President of the Family Division, addressing the annual gathering of Legal Aid lawyers said:8 “Human rights are no good to anyone unless a person has access to them… Without the lawyers, access to rights is an empty phrase…’
There is a will to sustain access to justice by many – by regulators, providers and government, but it needs collaboration and communication. Regulators such as the SRA, the Bar Standards Board and the Chartered Institute of Legal Executives, together with the MoJ, and even the President of the Family Division himself, could be formidable forces to bring together providers to find solutions to sustain this small but crucial part of lawyers’ development, training, capability and legal practice. Otherwise, there is a real risk that practitioners will disappear in areas of law catering to the most vulnerable.
LSCP Panel member since 2014 who trained as a lawyer and is established as a legal services specialist with a background in equality and legal aid dispute resolution. Read more here.
2 www.theguardian.com/law/2018/dec/26/how-legal-aid-cuts-filled-family-courts-with-bewildered-litigants, citing legal aid agency statistics
6 www.sra.org.uk SQE EDI Risk Assessment 2017