An exhausting treadmill for solicitors

The long-awaited report of Sir Christopher Bellamy’s Criminal Legal Aid Review (CLAR) and Government response promising a £135m/year budget increase (to £1.2billion/year) have fallen flat with both the Law Society and Criminal Bar Association, who have balloted 94% in favour of industrial action. Years of cuts and stagnation have had a worse impact on the criminal legal aid profession than Government appreciates.

The impact for barristers is clear from the discontent even these seemingly positive proposals have generated. Much has been written about percentages and fee mechanics, which are important, but the human aspect can be lost. In some ways, the greatest impacts are the simplest: stress and frustration. This affects barristers themselves and the administration of justice. It is a fact of life that demoralised, fed-up and exhausted people will struggle to perform at their best and/or, eventually, quit. Directly, low fees make it harder for barristers (particularly at the junior end) to pay bills, rent, student loans, expenses, chambers rent, etc., all without the safety-net of a salary. Equally, indirectly, low fees mean huge volumes of work must be done to sustain practice at all. This presents barristers the dilemma of either not giving each case the time it needs or staying up late into the night to do so. Many juniors report punishing schedules, starting early and finishing near midnight ready to go to court next day and do it all again.

The hope that it might (maybe?) one day get a bit better is insufficient. Even the suggested fee increases from CLAR are not due until late 2022 at best. Retention and workload concerns remain stark. The latest Bar Council data show the number of barristers in full-time publicly funded criminal practice dropped by more than 10% in 2020-21. A 2021 Bar Council survey also found criminal barrister wellbeing was significantly lower vs other areas of practice: over 50% of criminal barristers felt down or in low spirits and only 40% found their workload manageable. Prior to Covid-19, similar sentiments were expressed in the Bar Council’s 2017 ‘Working Lives’ survey.

The position for solicitors is no less acute. With no fee increases in legal aid for 14 years and a cut of 8.75%, income has been eroded by inflation and the increased cost of essential overheads. Whilst Government accepts CLAR’s case for increases to fee schemes, as defence solicitors have come to realise, promises that follow on from Reports and Reviews are hollow and misleading. As the Law Society points out, the 15% increase to solicitors’ legal aid funding is really 9%. The only way a firm can remain viable is to deal with as many cases as possible, as quickly as possible, so many solicitors feel they are on a never-ending treadmill. The often piecemeal and late service of evidence and documents by the prosecution, and the need to adhere to deadlines is an ongoing battle, especially when there are fewer solicitors available to take the strain. Solicitors can feel compromised and unable to provide the quality of service that clients deserve. It does not feel that there is equality of arms.

Even before the disingenuous Government response to CLAR, morale was at rock bottom. Defence solicitors are exhausted; the physical and mental health of many is impaired. Talented and often young defence solicitors, realising that there is no guaranteed career progression or obvious future, will continue to move to the CPS or other organisations such as the police and local authorities for better pay, conditions and prospects. They may not be replaced as the recruitment and retention of staff is dire. Many solicitors who were furloughed, or who ploughed on during the pandemic, reassessed their priorities and looked for alternatives. The hollow response to CLAR is insufficient to quell the exodus.

In the short-term, both branches of the profession need immediate support to allow for the suggested longer-term reforms to fee systems to be implemented and assessed over time by a stakeholder Advisory Board. On that basis, the Government response to CLAR remains disappointing. The absolute minimum suggested increase has been adopted and this will not be available until late 2022. Ultimately, this suggests the level of urgency has not been grasped.

Amanda Parker and James Thornton both lecture at Nottingham Law School, Nottingham Trent University.