Line of duty
Chandni Patel, CILEX’s head of policy, explains the hurdles faced by CILEX Lawyers pursuing a career as police station duty lawyers and stresses the need for reform
October 2021 saw the All-Party Parliamentary Group (APPG) on Legal Aid publish its final recommendations following its inquiry into the sustainability and recovery of the legal aid sector.
The findings came after over a year of data and evidence gathering from across the legal aid profession, examining the challenges faced by the sector, including those resulting from the Legal Aid, Sentencing and Punishment of Offenders Act 2012, as well as looking to the post-pandemic future.
Unsurprisingly, the consensus was that the legal aid system was neither ‘sufficient’ nor ‘sustainable’. Whilst this may appear to be just another iteration of what we have long known, the report is admirable in recognising wider systemic issues that have contributed to this reality.
With an entire section given over to the provider’s perspective, the APPG rightly draws on the reality of practice to highlight issues that go beyond funding, such as training and entry, recruitment and retention, diversity, and the skewed public perception of what legal aid is and who it is for.
For the policy team at CILEX HQ, these realities are important, playing a central role in our contributions to the debate which needs to go beyond the Treasury and the cost to the public purse. Viewing legal aid reform from the perspective of a CILEX duty lawyer’s journey, alternative solutions to the problems the sector faces become more apparent.
Becoming a duty lawyer
There are many factors that feed into individual decision-making when choosing and pursuing a career path. For those looking to become a duty lawyer, the job satisfaction inherent in upholding justice and helping those in need will no doubt play a crucial part. Long-term prospects for career progression and career development, however, are just as relevant, as is the possibility of a healthy work-life balance that takes account of family life.
For CILEX practitioners, the first hurdle to a career as a duty lawyer arises at the very beginning of this process with the Criminal Litigation Accreditation Scheme (CLAS). Barriers to entry manifest almost immediately, as a lack of recognition of CILEX Advocates’ training and competence creates duplicate standards for proving an ability to carry out work independently.
Our view is that the CILEX Advocacy qualification fulfils the requirements under CLAS and that CILEX practitioners holding this qualification should be to be ‘passported’ across; an easy remedy that, with the support of the Law Society, could overcome this barrier faced by CILEX Lawyers looking to get onto the duty rota. Alternatively, a comparable accreditation scheme could deliver this assurance, something to which the Ministry of Justice has not, to date, been amenable.
Ongoing hurdles
But it’s not just about getting on the duty rota. Even if we put aside the additional barriers for legal aid firms in securing duty slots, there are the retention issues that arise when the reality of being a duty lawyer hits home.
“Duty rules are out of step with the working time regulations and employment law provisions for sickness and holiday entitlement.” We have heard from our practitioners that, as a duty lawyer, there are frequent requirements to work unsociable hours (overnight at the police station followed the next day by a full day in court). Duty rules are out of step with the working time regulations and employment law provisions for sickness and holiday entitlement. What’s more, the Legal Aid Agency duty ‘14 hour’ rule – requiring duty lawyers to undertake 14 hours of criminal defence work a week – takes no account of modern working practices and remote working, and the minimum case requirement proved especially troublesome over the pandemic given the demands of the justice system and case backlogs that impacted workflow.
The model as it now stands puts undue pressure on practitioners to demonstrate productive output to maintain coveted slots on the rota. It needs to be liberalised, either by increasing the number of slots available and the ability for practitioners to secure them, or by recalibrating the duty lawyer model completely.
Salaried role
One solution we have put forward is to make duty lawyers salaried appointments in receipt of consistent work from the police station. When compared to the current model of payment on a case-by-case basis, this would help better integrate processes, improve interactions between the various participants in the criminal justice system and allow for more effective deployment of resources across criminal legal aid. It would also bring the added benefit of establishing known fixed costs.
These suggestions are just a snapshot of the changes urgently needed to make the legal aid system sustainable. The need for increased funding is a baseline issue and one that many have echoed across the sector, but it is important to also recognise the systemic problems that go beyond the finances. Many of these solutions are within the gift of the Law Society, the Legal Aid Agency and the Ministry of Justice to implement.
The APPG report is yet another call to action and CILEX will continue to work with decision-makers and drivers of change to stress the importance of these more nuanced solutions in sector reform.
For further information, please contact the CILEX policy team.
