Duty Solicitor Scheme

Mike Freer Excerpts

Wednesday 13th March 2024 Westminster Hall

[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.