Qualitative research to explore civil legal aid advocacy
At a glance
The Ministry of Justice (MoJ) wanted to explore barristers, solicitors and instructing solicitors experiences of working in civil legal aid to help inform the Review of Civil Legal Aid (RoCLA). Qualitative in-depth interviews were conducted with barristers, solicitors and instructing solicitors in England and Wales. helped to capture legal professionals’ experiences of the sector and their views on sustainability, which contributed to the evidence presented in the Review. An ‘ageing’ legal aid workforce, few opportunities for advocacy training for solicitors, low pay and bureaucracy were seen as contributing to a diminishing capacity of the current advocacy system that was unsustainable and risked access to justice.
About the client
The Ministry of Justice (MoJ) is a major government department, at the heart of the justice system. They work to protect and advance the principles of justice.
Challenges and objectives
MoJ wanted to build the evidence base on legal professionals’ experience of working in the civil legal aid sector and their experience of advocating in civil legal aid cases. The research aimed to understand key factors in solicitors’ selection of an advocate, how advocacy is introduced to prospective advocates in their career, what incentivises and disincentivises advocates to do civil legal aid work and advocate views on the sustainability of civil legal aid advocacy. With no database to draw on, one of the key challenges MoJ were looking to overcome was the recruitment of appropriate professionals.
Solution
We conducted 40 semi-structured online in-depth interviews with barristers, solicitors and instructing solicitors working in civil legal aid. The 40 participants were free-found through direct emails to sector contacts and practitioner groups, desk research and participants inviting colleagues and peers to take part.
Impact
The research found that advocates operate in a complex and changing system. The legal professionals spoken to expressed concerns about increased bureaucracy and administrative work involved in civil legal aid advocacy. They felt civil legal aid pay rates were too low for the type and volume of work they carried out. The fixed-fee system was deemed too complex and did not reflect the work carried out by advocates, causing additional burdens and payment delays.
Through the discussions it became apparent that barristers were not the only professionals advocating in civil legal aid cases. Solicitors and chartered legal executives were also often advocating in lower courts where they had the necessary rights of audience. Solicitors made decisions on whether to appoint a barrister or instead advocate themselves or allocate the case to a colleague within the firm based on three reasons: financial factors, complexity of the case and client and case needs. Although solicitors often found themselves facing a shortage of barristers who could take on cases and therefore, they ended up advocating themselves even when it might have been preferable to appoint a barrister.
The study found that the current advocacy system was commonly seen as unsustainable and risking access to justice. The factors impacting this view was the diminishing capacity of the civil legal aid advocacy sector due to an ‘ageing’ legal aid workforce and few opportunities for advocacy training for solicitors, and low pay and bureaucracy.
The findings helped to capture legal professionals’ experiences of the sector and their views on sustainability, which contributed to the evidence presented in the Review of Civil Legal Aid (RoCLA).