Duty Solicitor Scheme

Kevin Foster Excerpts

Wednesday 13th March 2024 Westminster Hall

[Kevin Foster (Torbay) (Con)]

I beg to move,

That this House has considered the duty solicitor scheme.

It is a pleasure to serve under your chairmanship, Mr Betts. In preparing for this debate, I have been particularly grateful to Rob Newman, a retired solicitor who lives in my constituency, and Tony Steiner, the chief executive of the Devon and Somerset Law Society, for their thoughts and guidance on the subject.

It would be easy to try and characterise this as a debate about those accused of crimes and their representatives, but it goes much deeper. Today’s debate is about a key part of how we deliver justice and truly serve victims of crime. The duty solicitor schemes provide essential representation for suspects at police stations. They allow investigations to move forward quickly and are critical to ensuring that victims and defendants get justice. An effective duty solicitor scheme is vital to properly functioning law enforcement. It allows the police to more quickly decide if they have grounds for further investigation and a possible charging decision; if the person they have detained is not the one they are looking for and can be quickly released; or even if the matters are not criminal matters and can therefore be discontinued.

The process ensures that our courts can then deliver a fair trial based on evidence from an effective and timely police interview, and victims can then see justice done in a timely and effective way. Good legal advice at the earlier stages can be vital for avoiding miscarriages of justice—examples of which we have been debating quite regularly in this House over the last two to three months. If the duty solicitor service fails, our justice system fails. Police interviews are delayed and victims find themselves waiting longer for justice, which may never come if the issues with the duty solicitor scheme are not addressed.

I will start with the current situation. Across England and Wales, duty solicitor schemes are in crisis. Since 2017, more than 1,400 duty solicitors have left the duty rota system and many schemes have fewer than seven members, making 24/7 coverage near impossible, and that is without making allowances for sickness or those wishing to take annual leave, creating a vicious cycle of duty rota obligations, which is likely to push even more out of the profession. We should remember that a core part of this is having someone available, for example, to attend a police station interview in the early hours of the morning. It is not just about attending court during the day.

To give the figures for my own region, in 2017 there were 109 duty solicitors operating in Devon and Cornwall. By last year, that number was 78—down 28%—and the forecast for 2027 is 64. As the 2027 forecast for Devon and Cornwall also brings home, it is not just the numbers leaving the duty scheme that suggests a need for change. Without an attractive package to encourage those at the start of their careers to join the duty solicitor scheme, or to encourage others to stay, those who remain on the duty rota are now ageing. Nationally, less than 4% of duty solicitors are under 35 years old, and the average age in 2021 was 49. If I were still working in the sector, I would be feeling very youthful at the moment. The number is higher in many regions.

[Jim Shannon (Strangford) (DUP)]

I commend the hon. Member for bringing this debate forward. I spoke to him before we came in today. In 2018, the Law Society stated that there was a “chronic” shortage of duty solicitors, as he has said, and that nearly half were over 50 and due to retire soon. More than a third of all junior solicitors in Northern Ireland are now employed in large firms. Does he agree that more needs to be done to encourage junior solicitors to take up positions in legal aid schemes to ensure that those who cannot afford to choose a solicitor have readily available access in police stations and in the courts as well?

[Kevin Foster]

I can only agree with my friend, the hon. Member for Strangford (Jim Shannon), about encouraging people to go into this area of legal aid. There are issues around legal aid more generally, but in this area, police station interviews, police station duty and the right to representation at a police station all create different challenges from those faced in, for example, providing legal aid in planned settings in the courts, particularly when it comes to timing and advice. Being a duty solicitor is literally about getting a phone call in the early hours of the morning asking to come and attend an interview immediately, while someone waits in custody, and we need to look at how to get more people coming into it.

The overall figures do not show how stark the facts are in some regions. There are literally zero practising criminal law solicitors working in the system aged under 35 in Cornwall, Lincolnshire, Wiltshire and Worcestershire. Not one person who started their legal career in the last 12 years is practising as a criminal law solicitor in those four counties. Other areas are close to that figure, with only one criminal law solicitor aged under 35 in Norfolk, Shropshire and Warwickshire. In Bristol, Cornwall, Devon, East Sussex, Lincolnshire, Wiltshire and Worcestershire, over 60% of criminal law solicitors are aged over 50. The result is that, with expected retirements, rotas will shrink even further, to the point where there is simply no one left to take part.

The National Audit Office recently highlighted that the Ministry of Justice

“has been slow to respond to market sustainability issues”,

and the Law Society for England and Wales echoes that view. We simply cannot wait until the final generation of criminal lawyers retires to start tackling the issue, not least as those starting law degrees today will be at least five years away from being able to fully practise. To tackle the issue of people retiring in five years’ time, we need to start now.

The issue of the duty solicitor scheme also links to one of the biggest achievements of Boris Johnson’s premiership: putting in place plans to recruit an additional 20,000 police officers as part of the national uplift programme, which has now been delivered. Extra police officers means more issues dealt with, more crimes detected, more suspects to be interviewed and more cases before the courts. It is estimated, based on a National Audit Office report, that an extra 729,000 cases could be set to enter the criminal justice system by 2030 because of the extra 20,000 police officers. A lot of cases will not necessarily require full police interviews. Some might be dealt with by other forms of disposal, but we need to think about the extra demand.

What happens if a police station cannot find a duty solicitor? First, the police might be forced to release a suspect as they cannot interview them without a legal representative. The freshness of evidence might be lost. Even the potential for early admissions, which would make the process a lot easier for victims, might similarly be lost. The pressure builds on police station cells and local court backlogs if they are waiting for a duty solicitor to attend, and victims will be forced to wait longer for justice. We might even find that innocent bystanders arrested in error will have to wait longer before they can be released.

The impact continues once a case gets to court. Nearly half of defendants appearing in the magistrates courts on imprisonable summary offences did not have legal representation recorded on their case in the first half of 2023. That figure rose from 35% during 2022.

One response to the current situation has been consolidation, with criminal defence lawyers and practices becoming part of specialist firms, rather than being departments of larger multidisciplinary teams, but that is not without its own issues. As one criminal defence solicitor working in the south-west region put it:

“The truth is that the local rota is reduced to 9 or 10 people grouped in 4 firms…The 4 firms are crime only and there are no mixed practices who do any duty work or any quantity of criminal work. The consequence of this is that each Solicitor has a 24 hour duty slot every 10 days as well as the duty slots at the court 4 days per week and remand duties over video link 5 days per week which means there is some duty every day.”

It is not clear whether that is physically sustainable, but consolidation has also produced another impact, which may be less visible. That was stated as:

“Another difficulty is with conflicts as once the four firms are used up, there is no one that the fifth defendant on the case can seek advice from. We are starting therefore to get justice deserts in various parts of the country including our own.”

Also, consolidation will remove any form of choice. Most people accept that, while there might not be wide choice around legal aid, the ability to have some choice, particularly when their liberty is on the line, is still important.

It is easy to outline problems, but we also need to look at solutions. In the short-term, we need to stop experienced lawyers leaving duty work for other, more rewarding areas of legal practice, or simply to areas where they do not have the rota obligations. As the Law Society has pointed out, criminal legal aid rates have not really increased since the mid-1990s, while most other areas of law have been able to determine their rate based on the market. The Minister will know that, back in 2022, the independent review of criminal legal aid took place. However, the Government rejected the central recommendation of an immediate increase in rates of 15% as the first step, and instead implemented a 9% rise, which would eventually rise to 11%. Since then, practitioners have continued to leave the system, and the change does not appear to have produced a recovery in duty solicitor numbers. The Minister will be aware of the judicial review, which found back in January that the decisions had been irrational and should be retaken.

To halt the decline and potential collapse of the system, it is clear that the Government must implement the recommendations of the report, particularly given the impact of inflation on the profession since the report was published in 2021. It should be noted that criminal legal aid firms undertake a range of work, so actions should be taken as a package rather than as individual items. Even that will not change the longer-term picture. Quite clearly, we need a strategy to make working in our criminal justice system more rewarding, with specific measures to encourage those learning law at university to train for the duty solicitor scheme when they graduate.

There is not time in this debate to go into all the nuanced details around creating a public defender system akin to the Crown Prosecution Service, which effectively is a nationalisation of prosecution work. It is not a simple thing to do and could be fraught with challenges, in particular around maintaining independence from the state, which will of course be pursuing criminal charges against the individuals seeking to be represented. Like the current duty solicitor scheme, it could find itself struggling to attract the resources and human capital it needs. Yet the Government should consider how they can incentivise new lawyers to train specifically for criminal law work, especially in police station and duty solicitor roles.

Given what I have outlined, there are some specific points to which I would appreciate hearing the Minister’s response. First, what is the Government’s planned response to the recent High Court ruling and its clear findings on the duty solicitor scheme? Secondly, will the Government recognise the crisis in the duty solicitor scheme and put in place the fee increases that its own commissioned review said are needed to prevent the system’s collapse? Thirdly, given the urgent need for more training for this work to prevent the rota from disappearing over the coming decade, has the Minister given any thought to incentives such as a golden hello or funded training package, which could come with requirements to be on the rota for a set number of years? That could be like the packages we see in, for example, the armed forces and other areas of public service, where people are funded to be trained to do a particular job and then have to accept a commitment to do it for the public benefit. Finally, with few entering the profession in recent years, how will the Government support training to ensure capacity while still having criminal lawyers delivering the rota?

As someone who once worked as a criminal lawyer funded by legal aid, there is a lot more I could say about this issue, but time is limited. I said at the start that the duty solicitor scheme lies at the heart of our criminal justice system. It cannot operate without the scheme, yet it is ageing and more people are leaving. This is about ensuring that victims can get timely justice, that miscarriages are avoided and that cases proceed quickly and effectively, for the benefit of all involved. Without urgent investment and action on our duty solicitor scheme, none of those things can happen.

[The Parliamentary Under-Secretary of State for Justice (Mike Freer)]

It is a pleasure to serve under your chairmanship, Mr Betts. I thank my hon. Friend the Member for Torbay (Kevin Foster) for securing this debate, and for his focus on this important matter. I will begin by commending criminal legal aid solicitors for the invaluable work that they do across the whole criminal justice system. Legal aid is a fundamental pillar of our free and fair justice system. It underpins the rule of law so that ordinary citizens can uphold their rights and liberties. In the criminal justice system it supports those charged with an offence to defend themselves, and assures that the allegations made against them are properly tested. Criminal legal aid solicitors play a vital role in ensuring that the system works.

It may be helpful to explain that in England and Wales, two duty solicitor schemes operate in parallel. The police station duty solicitor scheme enables a person who is arrested on suspicion of a criminal offence to consult a solicitor free of charge, either in person or over the telephone, while in police custody. The court duty solicitor scheme allows a person who has already been charged with an offence to consult and be represented by a solicitor free of charge at the magistrates court on their first appearance if they do not have, or have simply not contacted, their own solicitor.

Turning to the funding for solicitors, we have boosted the system with immediate investment in response to the criminal legal aid independent review, known as CLAIR, and are introducing further reforms that will support solicitors. Access to justice is a fundamental right, and in 2023 we spent £1.86 billion on legal aid, of which £873 million was on crime. Investment in the legal aid sector is continuing. In September 2022, we uplifted most criminal legal aid fee schemes by 15%, including a 15% increase to the police station scheme and the magistrates court scheme, which includes youth court work. That was in direct response to CLAIR, to support and strengthen the criminal legal aid sector.

To give my hon. Friend a glimmer of hope, since we introduced the fee scheme and the new standard crime contract came into force, we have seen an increase in the number of duty solicitors registering for the scheme. In fact, between October 2022 and April 2023, the number of duty solicitors rose by about 7.5%. While I accept that that does not take the numbers to where they were several years ago, it is an early sign of at least some stabilisation in the scheme.

[Kevin Foster]

Will the Minister commit to writing to me, and perhaps placing a copy of the letter in the Library, setting out where the numbers have changed in each region as defined by the areas that are covered in the duty rota schemes?

[Mike Freer]

If I can break it down by region, I will give my hon. Friend a full response. I will happily share the figures I have available, and I will place a copy of them in the Library.

On 29 January this year, we published a consultation on proposed reforms to the police station fee scheme and the youth court fees, where an additional £21.1 million per year has been allocated. We expect our reforms to criminal legal aid to increase investment in the solicitor profession by about £85 million every year, including a 30% increase in funding for solicitors’ work in police stations and a 20% increase for their work in magistrates courts once we introduce the additional £21 million a year.

The investment, alongside planned longer-term reforms, increases criminal legal aid spending by up to £141 million a year, which means the overall spend for criminal legal aid is expected to be up to £1.2 billion per year—the highest level of investment in criminal legal aid in a decade. That additional funding into the system will contribute to the sustainability of the market and help to ensure that legal aid is accessible in the future.

I share my hon. Friend’s concerns about the reduction in the number of duty solicitors, notwithstanding the recent increase. I meet the Legal Aid Agency regularly to discuss matters pertaining to criminal legal aid, including the duty solicitor schemes. The Legal Aid Agency regularly reviews and monitors the number of duty solicitors on each local duty scheme to ensure adequate provision and access to legal aid. It has arrangements in place to ensure that all duty rotas have cover 24 hours a day, 365 days a year. I accept that in some areas that is sometimes quite a big ask, but the Legal Aid Agency works closely with practitioners to ensure coverage in areas where it is tight.

[Kevin Foster]

On the numbers, I want to be clear that the issue is people actively taking cases. One retired solicitor who knew I had secured this debate told me that he still gets an email each year saying that he is still licensed to do stuff, even though he has not actually practised as a criminal lawyer in 10 years. It is the numbers of people actively doing things.

[Mike Freer]

I will have to double check, but my understanding is that those numbers are for those who that have signed up for the standard crime contract. I am not sure a retired solicitor would have signed, so that individual should not be captured in the figures.

I assure my hon. Friend that although the numbers of solicitors firms offering criminal legal aid and offices delivering the service have declined, police station and court duty solicitor schemes remain fully covered. I am slightly less worried about the number of offices; I think we can sometimes get fixated on that. I appreciate that in more rural areas having a physical office is important, but in other parts of the country, with mergers of firms, I do not believe we need to get hung up about physical presence as long as we have the solicitors on the ground. That is a more important measure than the number of offices.

[Kevin Foster]

I agree with the Minister about physical office locations, not least in an era of homeworking. My concern is not so much about the physical local of an office. If firms merge, there is still the potential for conflicts. If there are four firms doing this work in Devon, and five defendants, there is the potential for so-called cut-throat defence. It is not about whether there is a physical office; it is the fact that if those firms join together, conflicts can arise.

[Mike Freer]

My hon. Friend, being a practising solicitor, has greater knowledge of the intricacies than I do, but I will take that point on board. I assure him that the provision of duty solicitors is a priority and we are actively taking steps to ensure all schemes continue to operate, both now and in the future.

I will touch on a couple of points that my hon. Friend mentioned. The judicial review relating to the funding for criminal solicitors has ended. As he mentioned, a year ago the Law Society filed a JR claim challenging the funding decision taken by the previous Lord Chancellor in response to the criminal legal aid independent review. It focused mostly on the litigators’ graduated fee scheme and the decision not to apply the full 50% uplift across all elements of it. LGFS is a remuneration scheme for solicitors undertaking Crown court work. We were clear in our response to CLAIR why we did not increase the fees for pages of prosecution evidence. That was due to the perverse incentives identified by CLAIR, whereby payments are based primarily on the volume of pages served to the prosecution, irrespective of whether they are read, and not on the work done.

The judgment was handed down on 31 January. Although the claimants were successful on a specific narrow grounds relating to the decision-making process, the majority of the arguments were rejected by the court. We are carefully considering the judgment and will respond in due course.

Furthermore, we are currently working with stakeholders through a sub-group of the Criminal Legal Aid Advisory Board on reform of the LGFS. One aim of the reform is to address the perverse incentives of pages of prosecution evidence identified by CLAIR. We are aiming to consult on LGFS reform later this year.

To answer the point about the number of younger practitioners in the sector, I understand the concern. That is why the chair of CLAAB, Her Honour Deborah Taylor, asked for the numbers on the board to be increased, to include younger practitioners both at the criminal Bar and in the solicitor sector. That has been agreed and the younger voices of the sector are on CLAAB, which will hopefully help to inform decisions so that we can ensure a flow of younger solicitors into the criminal representation side of the justice system.

My hon. Friend the Member for Torbay also raised the issue of training and ensuring that crime pays, as it were. I accept the point that we seem to have a revolving door. In particular, solicitor firms invest in training solicitors, who then leave and move on to different parts of the criminal justice system once training is completed. We are conscious of that, and Her Honour Deborah Taylor is looking at what we can do to change how training is funded to address that revolving door. Obviously, that is still a work in progress and the sector is being consulted.

Have I answered all my hon. Friend’s questions? He is welcome to intervene if I have missed anything.

[Kevin Foster]

The Minister is being very generous in inviting interventions. He will know that I sometimes hear with interest the words “in due course”—they are commonly used, and it is amazing what they can cover. Can he give me a flavour of any timelines that have been set for work on the response? For example, is he aiming to publish it by the summer? I hear what he says about training, and academic years are obviously vital in that area with new trainees starting each September, so has he set himself a particular timeline for the work to be done, to allow him to respond in due course?

[Mike Freer]

My hon. Friend raises a good point. The Criminal Legal Aid Advisory Board does not work to my timeline, but I will contact Her Honour Deborah Taylor to see whether she can share a timeline for when at least some initial thoughts, if not a final report, will be made available.

We have a shared aim of achieving a system that fairly reflects the work of our excellent legal professionals and sustains criminal legal aid well into the future. We appreciate that the system is under pressure, and we want to ensure that it is robust and that people have access to justice. I am grateful for the opportunity to respond to this debate and to the points raised by my hon. Friend. I hope that he has found my answers at least helpful and informative.

Question put and agreed to.