Atkinson: Goodwill has run out
The Law Society is advising criminal legal aid firms to carry out ‘viability reviews’ to determine whether they are able continue to provide services, and if they are, “whether scaling back is necessary”.
Richard Atkinson, who will this week take over as president of the society, said the dedication of criminal legal aid lawyers had allowed successive governments “to paper over the cracks and avoid the hard decisions” that needed to be made. “That goodwill has run out”.
In guidance issued yesterday, the society said law firms, and compliance officers in particular, should “examine the viability of each type of criminal legal aid service to decide whether it should be scaled back, or withdrawn altogether, unless and until there is meaningful change proposed by the new government”.
Where services were scaled back or withdrawn, the Legal Aid Agency (LAA) and Ministry of Justice (MoJ) “should be told that has happened and the reasons why, as that will help dispel the false assumption that firms can continue to operate and deliver a full range of services in a viable way that meets local needs”.
The guidance was sparked by the MoJ’s launch last month of the procurement process for the next criminal legal aid contract, which will begin in October 2025 and run for 10 years.
The advice reflects the society’s frustration that despite Lord Bellamy’s review of criminal legal aid recommending a “minimum” increase of 15% in pay for criminal law solicitors in 2021, only 9% had been delivered.
The society said the government had indicated it would not be responding until November 2024 to a judicial review ruling in January this year requiring it to reconsider its response to the Bellamy review. The deadline for law firms seeking slots on the 2025 duty solicitor rotas is 22 October 2024.
The guidance said that, where police station services or advice and representation services at court were scaled back or withdrawn and potential clients “cannot be offered services by any local firm”, they should be referred to the centrally funded Public Defender Service (PDS).
The society said; “We do not believe the PDS currently has capacity to meet all current unmet need in the system, less still to meet the additional need that will arise from firms scaling back or withdrawing services following viability reviews.
“This view is reinforced by the evidence filed by the Lord Chancellor in the judicial review.”
However, if referrals of eligible prospective clients were made to the PDS in its role as provider of last resort and Lord Chancellor Shabana Mahmood was “unwilling to ensure it has the resources to meet their needs”, she would be “in clear breach of her LASPO [Legal Aid, Sentencing and Punishment of Offenders Act 2012], common law and article 6 duties to provide services to those individuals”.
The society added that the High Court had made clear that “there is scope for individuals who are eligible for legally aided advice, representation and advocacy services advice and representation to challenge failures to provide it to them using judicial review”.
Speaking to the Criminal Law Solicitors Association conference last week, Mr Atkinson warned the government that “this may well be the last opportunity to walk back from the brink and the time we have to do it is very short”.
He noted too how, for the first time ever, fewer firms were undertaking civil legal aid immediately after a tender than were before. This was “a further stark warning that the collapse of legal aid is no longer imminent, it is here, it is happening”.
In her ‘Monday Message’, Mary Prior KC, chair of the Criminal Bar Association, commented that barristers obtained a 15% increase in defence legal aid fees “at great cost to themselves”.
She continued: “It is with great sadness that we read of the advice being given to criminal solicitors from the Law Society to withdraw from criminal legal aid or to scale back the amount of time that they spend upon it.
“The criminal justice system would come to a complete halt without their vital work in representing those accused of crime from their first arrest, through the interview process and then throughout the case.”
The Law Society’s recent advice to criminal legal aid firms underscores the growing challenges faced by legal practitioners in this field. With pressures mounting, firms are urged to review the viability of their services, considering the current financial environment. Richard Atkinson’s remarks about the goodwill of criminal legal aid lawyers running out highlight a crucial turning point for the sector. As firms navigate these challenges, it’s crucial that they maintain transparency, especially when scaling back services.