The civil legal aid system is not sustainable in its current form, according to detailed evidence from the Bar Council highlighting the urgent need for an increase in investment in civil cases, including family, immigration, and housing law.

In a response to the Ministry of Justice Review of Civil Legal Aid, the Bar Council demonstrates the need for urgent and significant funding across 11 areas of legal aid where access to justice is being eroded for children, families, and vulnerable adults. 

On sustainability:

  • In real terms, civil legal aid fees are now approximately half of what they were 28 years ago.
  • Those barristers who report the highest proportion of their fees coming from legal aid also have the lowest overall income.
  • Each 1 per cent increase in legal aid work for a barrister (as a proportion of fees) reduces total fee income by £611.
  • Low rates and fixed fees do not reflect the amount of work undertaken and impact recruitment and retention of barristers to these areas of work.
  • In family law, the evidence details a long list of work that is unpaid – including additional conferences and the drafting of position statements, chronologies, and written questions – due to the fee structures not keeping pace with the changes in the work required.
  • Housing and immigration are particular areas of concern in relation to future availability of counsel. Gross fee income for barristers undertaking legally aided housing work or immigration and asylum work is lower than those undertaking other areas of civil legal aid.

On access to justice:

  • In family law, the cuts and limiting of scope in the Legal Aid, Sentencing, and Punishment of Offenders Act (LASPO) has led to an increase in parties having to represent themselves (known as litigants in person). This leads to confusion for individuals and means that cases take much longer. In cases where abuse is alleged, only one party is entitled to legal aid representation, which leads to inequalities of arms and other practical problems.
  • The inadequate fees for qualified legal representatives in the family court has led to failings in the scheme designed to stop those litigants accused of domestic abuse and coercion from cross-examining their accusers. 
  • The government should remove the means test for legal aid for all victims and survivors of domestic abuse going through family law proceedings.
  • Legal aid deserts reduce access to good quality legal advice at the earliest stages of proceedings leading to delays in the resolution of matters involving children and vulnerable adults.

The Bar Council continues to call for a reversal of the LASPO cuts in 2013.

To ensure the long-term sustainability of civil legal aid, the Bar Council argues that the government should widen the scope of legal aid eligibility, raise the fees paid to barristers, and remove practical barriers, such as delays in payments.

Commenting, Sam Townend KC, Chair of the Bar Council, said:

“The publicly funded civil and family Bar is deeply committed to the social principles of justice for all, but its commitment and goodwill have continually been taken for granted. The civil legal aid scheme has been starved of funds to save money, but it has proven counter-productive both in terms of effective access to justice and in overall public-spending costs savings.

“These cuts impact children, families, and vulnerable adults in accessing justice and add more cost to taxpayers in dependence upon other public services. We know that issues relating to civil legal aid are one of the main reasons that people contact their local MPs. This casework has increased over the last decade due to the lack of available legal aid and advice that would historically have been provided by local advice centres.

“Our analysis reveals that the more barristers undertake civil legal aid work the lower their overall fee income. Coupled with delayed payments, increasing demands for unpaid work, and the difficult nature of cases, this is unattractive and practitioners drift away. The funding position is unsustainable.

“The Bar Council is calling for urgent investment and the widening of scope in civil legal aid to stop the drain of talented and experienced barristers from work that supports the most vulnerable in society.”