When vulnerable people are threatened by homelessness, domestic violence, rejection of asylum claims or a criminal conviction, who is there to help them?
“The forgotten pillar of the welfare state,” legal aid is state funding for individuals unable to pay for legal representation in criminal, housing, family, immigration and other cases.
Cuts to legal aid funding and eligibility began almost as soon as legal aid was introduced in 1949, but the most recent round of cuts have been some of the most aggressive. The Legal Aid, Sentencing and Punishment of Offenders Act (LASPO) came into force on 1 May 2012. It removed whole areas of practice from the scope of legal aid and cut legal aid lawyers' fees.
Now, five years after the Act came into force, we spoke to the chairman of the Criminal Bar Association, Francis FitzGibbon QC (called 1986), and legal aid barrister Mary-Rachel McCabe (called 2015) to find out about the state of legal aid today.
"Working as a legal aid lawyer is an absolute privilege,” McCabe reminds us; when all you hear is cuts, cuts and more cuts, it's easy to forget what a rewarding career legal aid can provide for the right candidates. Anyone interested in using their training to benefit society should read on to learn about the main issues facing the sector, and what to consider as you approach a career.
The state of legal aid today
“We've always been the poor relation of the Bar,” says Francis FitzGibbon of the criminal legal aid sector. And has become poorer still, when it was hit by the government's austerity measures. In 2010/11 the government spend on legal aid stood at £2.2 billion; by 2015/16 it was down to just £1.6 billion
Cuts to legal aid have happened in two key ways:
- Many areas of civil law have been removed from the scope of legal aid. They include (1) all family law cases that don't involve domestic violence, (2) all immigration cases except asylum claims, (3) benefits, debt and housing cases not involving a direct threat of homelessness.
- Barristers' and solicitors' hourly fees for legal aid work have been cut. And in some cases fees have switched to being fixed rather than hourly. Francis FitzGibbon estimates that “in crime since 2007 the value of legal aid fees is down by 40% which comes on top of a historical downward trend.”
Jobs, consolidation and closures
“Quite a number of smaller firms have either banded together among themselves or been taken over by bigger firms.”
The cuts have been bad news for the solicitors' profession and the Bar. First, there are fewer jobs. “The Bar is shrinking sharply at the bottom,” says Francis FitzGibbon. According to the Bar Standards Board, there were just 1,339 barristers of five years' call in practice in 2015 compared to 2,663 in 2010. This is not just the result of legal aid cuts, but they certainly have contributed. “It is very bad news for the future of the Bar: who are going to be the leaders of the profession and the judges in 20 years time?” wonders FitzGibbon.
He also notes that legal aid cuts have led to law firm consolidation. “Quite a number of smaller firms have either banded together among themselves or been taken over by bigger firms like Tuckers and One Legal.” There have been closures too: many small legal aid immigration firms have had to shut up shop, as have several law centres.
Access to justice
As a result of the cuts, some of the most vulnerable people in society now have quite limited access to justice. Mary-Rachel McCabe, who works on social welfare cases, gives an example: “There has been a huge impact on my clients because of the evisceration of legal aid for welfare benefits advice.”
“When LASPO came in, law centres and legal aid practitioners told the government that cutting legal aid for welfare benefits would be a false economy.”
Anti-legal aid cuts demonstration at Westminster
Photo credit: Mary-Rachel McCabe
Why? Previously problems related to benefits claims could be “nipped in the bud” by legally aided law centres. Now, there's no early stage help from legal aid lawyers, “people's problems spiral,” and eventually – once they are threatened with homelessness – a barrister can step in. But then the debts have piled up and it may be too late. McCabe recalls: “When LASPO came in, law centres and legal aid practitioners told the government that cutting legal aid for welfare benefits would be a false economy, because the knock-on effect would be that people get evicted and end up homeless which costs the state a huge amount of money.” See the case study on the right for more on this problem.
Similar problems are occurring in fields like immigration and family law. Legal aid designed to support people in need as a last resort has become the first port of call where help is available.
The rise in self-representation
Francis FitzGibbon tells us “the situation is less acute in criminal law than in other areas,” as criminal cases remain in scope. However, limits on eligibility remain where they were a decade ago and are lower than many people think – a gross income of no more than £2,657 and disposable income of no more than £733 a month. Plus, anyone with a disposable income over £315 a month is expected to make some contribution towards legal costs. This causes problems. “Some people can't really afford the contributions they are required to make if they apply for legal aid,” explains FitzGibbon. “That leaves them with a Hobson's choice of paying privately or going it alone, which is leading to more people representing themselves.”
“Pro bono can never be a substitute for full access to justice with a paid lawyer.”
The huge rise in the number of self-representing defendants (and litigants-in-person in the civil courts) is another undesirable consequence of LASPO. “It causes all sorts of problems with trials as they take much longer because people without a lawyer just can't be expected to know the rules and need to have everything explained to them,” explains FitzGibbon. “I know it is regarded as a particular problem by the Court of Appeal, as legal aid for appeals is much more limited.”
Is pro bono a possible answer, then? “Pro bono can never be a substitute for full access to justice with a paid lawyer,” believes FitzGibbon. “I'm worried that the powers that be are tempted to look to pro bono and other means of unpaid support to stand in for legal aid, which is not a good answer to the difficulties of access to justice.” FitzGibbon notes that many barristers do some pro bono work already and praises pro bono activities like university Innocence Projects, but notes that they mostly provide legal help in areas which have never been properly funded by legal aid, like historic appeals. “But you can't use pro bono for mainstream criminal litigation: you need proper professional support for that.”
Protests and the future
Lawyers protesting legal aid cuts with an effigy of then Lord Chancellor Chris Grayling
Photo credit: Mary-Rachel McCabe
The introduction of LASPO saw a near total breakdown in the relationship between the legal profession and the Ministry of Justice (MoJ), the part of the government that administers legal aid via the Legal Aid Agency (LAA). Twice the legal profession went out on strike – with barristers supporting solicitors and vice versa – and organised demonstrations against the cuts. The first was in 2014. “At that time,” recalls Francis FitzGibbon, “we all thought the game was up and that the Criminal Bar was in danger of being killed off completely by clumsy and ill-thought-out government policy.” The result, he says, was that “certain immediate cuts were shelved and it was the start of a more constructive relationship between the profession and the MoJ which continues to this day.” Within that relationship the Criminal Bar continues to argue that legal aid is underfunded and cuts are both unjust and unproductive. “There is far too much thinking in silos from the government: they don't realise that if you 'save' money in one area, you are pushing the costs onto other areas.”
“It was the start of a more constructive relationship between the profession and the MoJ which continues to this day..”
Defenders of legal aid have had some small successes in recent years. A second round of protests in 2015 saw a planned second 8.75% fee cut for solicitors cancelled. And in April 2017 the Court of Appeal ruled that cuts to legal aid to prisoners were unlawful and inherently unfair after a legal challenge by the Howard League. And what about the future? “I worry that further cuts are around the corner,” says Mary-Rachel McCabe. “I don't think the position for legal aid will get any better in the future. It may stay as is at best.” One possibility is that more areas of work will see fixed fees introduced in place of hourly rates, as has happened in immigration law. What happens next is a political decision for the government of the day.
Being a legal aid barrister
Making a living
“I think anyone who wants to pursue a career in legal aid now needs to go in with their eyes open,” says Mary-Rachel McCabe. “You would be a fool to think you'll end up very wealthy, but at the same time you can make a living as a legal aid lawyer.” This is not just the result of recent cuts – “criminal law has never been an area of the profession to enter with the ambition of becoming a millionaire,” Francis FitzGibbon reminds us. “But that doesn't mean it's impossible to make a living – even a good living – as a criminal lawyer.”
What can you expect to earn as a civil or criminal legal aid barrister? This is a fraught question. As noted above, fees for legal aid have gone down in recent years. A December 2015 report by the Bar Council estimated that legal aid barristers earn on average £28,000 a year (after tax and chambers rent), with junior barristers earning around minimum wage.
“You would be a fool to think you'll end up very wealthy, but at the same time you can make a living as a legal aid lawyer.”
You can get an idea of what a baby barrister at a given chambers may earn from what pupils receive: the value of the pupillage award plus guaranteed earnings at criminal sets 2 Bedford Row and 9-12 Bell Yard are £20,000 and £24,000 respectively. Doughty Street – which does a mix of work – offers £40,000, and McCabe confirms that those are roughly the net earnings a barrister in her position can expect to make. Many earn less – McCabe says she's anecdotally aware of some baby juniors earning under £20,000, and close to minimum wage.
Death of a profession? A lawyer wears a skeleton mask to protest legal aid cuts
Photo credit: Mary-Rachel McCabe
McCabe reflects that “you need to be careful with the money you receive – it's not easy. The main issue at the junior end is cash flow: there can be delays in payment, so month to month you don't know for sure what you're going to get.” Some sets, like Doughty Street, offer interest-free loans to help with this.
Even as a legal aid practitioner all your income may not come from legal aid. There's prosecution work on the criminal side and privately paid work in areas like social housing and family law. “I absolutely need to 'subsidise' my legal aid work with private work when I can,” says McCabe. This is often still public interest work – for social housing tenants who can afford to pay privately, for instance. Diversification is important. When we spoke to McCabe she told us she's looking into taking on work in a new niche area of family law: FGM protection orders, introduced in 2016, funded by the police or social services.
Hours and working style
Back in 2013, we reported that legal aid cuts and reforms would mean longer hours and more paperwork for practitioners. “I think this sector has always required long hours and lots of paperwork but the changes have certainly led to longer hours and more paperwork,” confirms Mary-Rachel McCabe. Most paperwork falls to solicitors applying for legal aid for their clients, but barristers have to deal with it too. For example: “Before the cuts civil legal aid paid a fixed hourly rate across the board. Now there's a lower baseline hourly rate and you can claim an enhancement of 50% if there's exceptional complexity, you've worked with exceptional speed or your client faces exceptional circumstances. Applying for that enhancement is time consuming: I can often spend 25 minutes on it after a case.” Even then, says McCabe, the LAA can decide not to grant the enhancement, which then requires a time-consuming appeal for them to grant the enhancement after all – it all sounds tiresomely bureaucratic. Criminal cases have become more paper heavy too, says FitzGibbon. “That is a long-term trend but it is accelerating. The rules now require more bureaucracy and form filling, and that takes up more time outside court.”
“I think the sector has always required long hours and lots of paperwork but the changes have certainly led to longer hours and more paperwork.”
The changes mean longer hours as well. McCabe tells us: “Because of the cuts to hourly pay and the judicial review work I undertake which is at risk of not receiving legal aid funding, I have to take on a huge quantity of work to make it pay. I also have to work very efficiently: the LAA only pays for the amount of time they think it will take you to do a piece of work. For instance, they will only pay you for five hours work to draft grounds for judicial review, but for someone at my level that may in fact take eight or nine hours. ”
One thing to bear in mind is that lawyers of all stripes face long hours and bureaucracy (sometimes within their own firms), whether they work in family, finance, legal aid or litigation. But both McCabe and FitzGibbon reminded us legal aid work comes with an advantage many other areas of law don't have...
Idealism over cynicism
Actor Maxine Peake at an anti-legal aid cuts demo. Peake played barrister Martha Costello in legal drama Silk.
Photo credit: Mary-Rachel McCabe
Given all the challenges, why become a legal aid lawyer? “My view is that working as a legal aid lawyer is an absolute privilege,” says McCabe. “The provision of legal aid is an essential part of the checks and balances of a democratic society. The clients I represent are ordinary people with ordinary problems who have often never been listened to before. By the time they come to me things have got really bad, and it's the last chance saloon. And I then have the opportunity to help them in some way.”
Legal aid and criminal work are also well suited to those who want to focus on advocacy and working with people. “You are sometimes confronted by quite difficult people – and I don't just mean judges!” chuckles Francis FitzGibbon. “You learn skills that they don't get close to teaching in law school about diplomacy, dealing with people, managing up, managing down, managing sideways. It's also a great privilege to stand up in court, make an argument and have people listen to you. It's a rare thing in the modern world to have the undivided attention of your audience to make your case.”
“I often meet my clients for the first time at court when they are on the brink of losing their home or their children.”
Mary-Rachel McCabe adds: “I often meet my clients for the first time at court when they are on the brink of losing their home. I have to quickly gain their trust and prove to them I am not another representative of the state or 'computer says no' type who is going to mess them around.” Helping other people is a reward in itself – it's as simple as that.
How do you become a legal aid barrister?
There are fewer opportunities to train as a legal aid solicitor or barrister today than there were ten years ago, but jobs are still out there. Based on the 2017 Pupillage Gateway we'd estimate there are roughly 60 to 70 pupillages available a year doing at least some criminal work (some of which is privately paid). Figures for legal aid positions are very hard to estimate and we're not aware of any statistics on numbers. “Anecdotally we would expect it to be a very small number,” the Young Legal Aid Lawyers (YLAL) group tells us. A big blow to the sector was the government's 2010 decision to scrap training contract grants for legal aid firms, which had been supporting on average 85 trainees a year with sums of over £20,000 each. There are still dedicated young barristers and solicitors across the country with legal aid practices, but far fewer than there used to be before LASPO.
The Justice First Fellowship
There is still support out there for aspiring legal aid lawyers. Most notable is the Justice First Fellowship (JFF) which was set up in 2014 by the Legal Education Foundation. It's “a ray of light in an otherwise grim landscape for aspiring legal aid lawyers,” according to Young Legal Aid Lawyers.
The JFF offers training contracts and pupillages in social welfare law with charities, law centres and legal aid firms. In both its first two years the JFF provided fellowships to nine trainees, followed by 13 in 2016; there were two pupil fellows in 2016 too. The deadline to apply in 2017 is May for pupillages and September for traineeships. There's more information on the JFF's website.
Fewer jobs means more competition, which means standards go up. “The quality of people applying for pupillage has never been higher,” says Francis FitzGibbon. “Those who apply at Doughty Street have often done amazing things before applying.” Most who come to the criminal or legal aid Bar today have previous work experience under their belt. For example, Mary-Rachel McCabe interned for Hackney Law Centre, then held several paralegal roles after graduating in 2011 – latterly at children's charity Just For Kids Law – while completing the BPTC part time on a full scholarship from Middle Temple.
“The sooner you can get frontline, hands-on experience of giving advice to vulnerable people the better.”
Both McCabe and FitzGibbon recommend getting some real-world experience before attempting to get a pupillage or traineeship. “The sooner you can get frontline, hands-on experience of giving advice to vulnerable people the better,” says McCabe. “Doing mooting and debating at university is all brilliant – as is doing mini-pupillages. But you also need to learn how to give advice and solve problems, and if you want to work in my area of social welfare law you need to come to understand how difficult, draining and heartbreaking the work can be.” She continues: “Practically, you can volunteer for a Citizens Advice Bureau or for a law centre. Volunteering for charities or NGOs is also good: on that front, volunteering for a big charity like Liberty or Reprieve is great, but you are more likely to get more meaty, gritty experience in a smaller charity or at a law centre.”
Young Legal Aid Lawyers (YLAL)
The Young Legal Aid Lawyers (YLAL) group exists to protect the legal aid sector, promote social mobility in the sector and support those entering the profession. Its co-chairs solicitor Oliver Carter and barrister Rachel Francis told us the organisation is committed to doing what it can to help individuals interested in a career in publicly-funded legal work.
YLAL's website contains some really useful information and insight. The organisation offers a mentoring scheme to support students and young lawyers and its website has a super helpful jobs page listing opportunities in the sector, ranging from volunteering and caseworker roles to traineeships and paralegal positions.
There are many competencies you'll need to have if you're applying for a legal aid pupillage or traineeship. Getting real-world experience is the best way of learning them. For further advice on this you can read our features on Criminal Law, Human Rights and Immigration, Public Law at the Bar and the Criminal Bar. Whatever you do, take your time, discover your interests, find your niche. “Don't rush into a career at the Bar,” is Mary-Rachel McCabe's final piece of advice.
The legal aid sector may be under strain, but it still offers fantastic opportunities to be a lawyer helping to change people's lives for the better. “I find it challenging but incredibly rewarding,” says legal aid barrister Mary-Rachel McCabe. “When you do obtain a good result for a client – like getting a homeless child into accommodation – there's no better feeling.”
This feature was first published in May 2017.