Legal aid was introduced in 1949, a pillar of the then Labour Government’s welfare state. The UK was slightly late to the party. The USA, for example, had the right to a lawyer enshrined in the constitution from 1791, France from 1808.

It has, however, not been a smooth journey. Government reforms enacted in England and Wales in 2012 radically removed legal aid eligibility in a number of areas. 10 years on, the England and Wales legal aid budget is 28% less than the 2012 figure. In criminal law alone, the amount of law firms willing to take a contract to cover criminal legal aid has been reduced from approximately 1600 to 1100.

Whilst these reforms did not apply to Northern Ireland, the recent Burgess review of criminal legal aid cited a real terms decline in legal aid fees of approximately 60% from 2005 to 2023. The report concluded that an immediate uplift of 16% was required as interim measure, followed by a full independent review of legal aid fees for all areas of law.

Fees for criminal work remain stagnant, there are no mechanisms involved to match fees to inflation. Recent inflationary events have brought this into sharp focus, with the salary of legal aid solicitors falling far behind peers.

The 2024 report’s recommendation for an immediate uplift of 16% remain to be implemented, as the Criminal Bar withdrawal of services nears the 2 month mark.

The Justice Minister Naomi Long has stressed that public funds are limited, that there is a need for parties to “meet each other halfway”. Though perhaps a strict interpretation would argue halfway would be a 30% increase of the apparent 60% decline.

In England and Wales there have been recent attempts to address issues. There has now been an over 30% increase to criminal barrister legal aid fees since 2022, whilst criminal solicitor legal aid fees are to be raised by 24% in total.

Looking to the future in Northern Ireland, the Burgess report highlighted one of the main areas of concern. In a Northern Ireland Young Solicitors’ Association survey of 248 lawyers with under 10 years of practice, only 5% reported undertaking any kind of legally aided criminal defence work. The report elaborated, citing that more senior Solicitors tend to undertake this work, with perceived financial pressures ensuring these senior solicitors are unable to hire junior Solicitors to assist.

There is a very real risk of a wholesale loss of expertise and knowledge as these older Solicitors retire, with no opportunity to leave an equally capable criminal Solicitor in their practice.

Equally there is a risk here of mirroring the “legal aid deserts” documented in England and Wales as rural areas may be left without any criminal legal aid practitioners.

There is still hopefully room for optimism, with enough time available to arrest the decline, and place things on a positive footing.