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Pay for legal aid solicitors in England and Wales is so low that the system is “broken” and ministers are refusing to offer more in part because it is harder for them to strike than it is for barristers, a court has been told.
The High Court in London on Tuesday heard a legal challenge brought by solicitors’ representative body the Law Society against the government over its decision not to implement the pay recommendations of an independent review.
Thomas de la Mare KC, representing the society, told Lord Justice Singh and Mr Justice Jay that without more funding, the system would “wither beyond repair”.
Ministers last year agreed to increase fees for criminal legal aid solicitors by 9 per cent, with plans for an additional 2 per cent uplift by 2024, according to the Law Society.
But legal aid solicitors warn the planned rise will not be enough to prevent an exodus from the profession, since it comes after years of real-terms cuts that have made much of the work financially unviable for many.
The society argued that the system is in such a bad state that the government is in breach of a common law right of access to justice.
Police in some areas are being forced to release criminal suspects because there is no legal aid solicitor available to represent them at interviews, it said.
De la Mare also warned that more defendants were appearing in court without any legal representation and that children and vulnerable adults were especially disadvantaged.
The solicitors were between 35 per cent and 50 per cent “worse off in real terms” by 2021 than they had been in 1996, the society said, citing the review led by Sir Christopher Bellamy KC.
The court action follows a strike held by barristers last year that disrupted thousands of trials and ended after the government agreed to a 15 per cent fee increase.
Some criminal solicitors also refused to take on low-paid cases last year, although the action was more limited than the barristers’ strike.
De la Mare said the government had offered solicitors less than barristers in part because of their “weaker negotiating position”. Whereas barristers are self-employed and can withdraw their services, the society said, strike action by legal aid solicitors was likely to amount to a breach of contract and of their professional and regulatory obligations.
The Law Society has brought the legal challenge in part on the grounds that ministers acted irrationally in failing to implement recommendations from Bellamy for an increase of at least 15 per cent for both solicitors and barristers.
It also argued the government failed to properly assess the state of the criminal justice system before taking its decision.
But Sir James Eadie KC, for the government, said the pay package was worth at least £115mn per year, the largest increase in funding for criminal legal aid in a decade.
He said there was a functioning network of “duty solicitors”, advocates who are paid by legal aid, in all geographic areas and that while some rural locations had “capacity challenges, these risks are being actively managed”.
“The challenges in the small number of rural schemes are not representative of a broader systemic problem,” Eadie said.
He added that as well as a “very significant increase in funding”, the government was also “committing to further measures designed to improve efficiency and effectiveness of delivery”.
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