The Effects of Changes to Legal Aid on Lawyers' Professional Identity and Behaviour in Summary Criminal Cases: A Case Study

Publication Date01 December 2017
Date01 December 2017
DOIhttp://doi.org/10.1111/jols.12058
AuthorLucy Welsh
JOURNAL OF LAW AND SOCIETY
VOLUME 44, NUMBER 4, DECEMBER 2017
ISSN: 0263-323X, pp. 559±85
The Effects of Changes to Legal Aid on Lawyers'
Professional Identity and Behaviour in Summary
Criminal Cases: A Case Study
Lucy Welsh*
This article explores the effects of changes to legally aided repre-
sentation on criminal cases in magistrates' courts according to data
collected in an area of south-east England. I consider the political
factors that motivated changes to legal aid and suggest how these
issues affecting lawyers' understanding of their role, and how that
understanding affects the relationships between defendants, lawyers,
and the magistrates' courts. I argue that the research indicates a
potential relation between solicitors' risk-taking behaviour in obtain-
ing funding and the reintroduction of means testing: remuneration
rates affect the service that defendants receive and the reintroduction
of means testing decreased efficiency in summary criminal courts.
Ultimately, I argue that changes to legal aid funding have increased
lawyers' uncertainty about their role, leaving them torn between acting
efficiently and providing a good level of service.
INTRODUCTION
As austerity measures have taken hold across government departments since
the financial crisis of the mid-late 2000s, publicly funded legal repre-
sentation has become an increasingly politicized issue and reducing access to
legal aid is one way in which governments have sought to save money. As a
practitioner,
1
the changes troubled me but there appeared to be little ability
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*Sussex Law School, University of Sussex, Brighton BN1 9QE, England
l.c.welsh@sussex.ac.uk
I am grateful to the interviewees for their time and interest. I also wish to thank Professor
Rosemary Hunter FAcSS, Professor Helen Carr, and Professor Heather Keating for their
comments on earlier drafts, and the anonymous peer reviewers for their detailed and
helpful feedback.
1 I practised as a defence solicitor for 10 years, and worked in the criminal justice
system for 13 years, up to 2015.
ß2017 The Author. Journal of Law and Society ß2017 Cardiff University Law School
to resist change while maintaining a service for clients. From an academic
perspective, I sought to consider possible explanations for these changes and
their impact on access to justice. In that context, this article sets out the
findings of my research on the effects of changes to legal aid in summary
criminal cases.
2
I sought, via empirical research, to identify trends in lawyer
behaviour which have been influenced by changes to legal aid funding,
particularly the standardized fee system and the reintroduction of means
testing.
While standard (fixed) fees were reintroduced in the mid-1990s, there has
been relatively little empirical research which examines their impact on
lawyer behaviour in summary criminal proceedings. This article aims to
partially fill that gap by providing a recent empirical analysis of lawyers'
reactions to changes in the funding of summary criminal cases. In 2006,
means-tested eligibility for legal aid in magistrates' courts was reintroduced,
and there has been little research which addressed the impact of that change.
I sought to assess the potential impact of these two changes on lawyers'
understanding and interpretation of their role and, by implication, the effect
on the service that defendants receive.
Recent governments' legal aid policies, fuelled by scepticism about the
effectiveness of public service professionals, have demanded ever more
efficiency and sought to cut costs across the criminal justice system. I sug-
gest that, as a result of changes to legal aid policy, lawyers are increasingly
torn between giving effect to business needs or client needs. As lawyers
become progressively uncertain about legal aid payments, they increasingly
struggle to manage their professional and ethical duties towards clients.
Services offered to defendants may suffer as lawyers' sense of professional
identity is challenged by prevailing economic structures that undermine the
roles and rituals of everyday practice.
3
Consequently, relationships between
lawyers, courts, and defendants appear to be under increasing levels of
strain.
The article begins with an analysis of the political background which led
to changes in legal aid policy. I then set out the present system of funding
relevant to this article, followed by the findings of studies which have
documented lawyers' reactions to earlier changes to legal aid provision.
After explaining my own research method, I illustrate and analyse my
findings. I conclude that the evidence suggests that recent changes to legal
aid have challenged the professional paradigm of legally aided work. In
particular, I update the research which found that fixed fees appear to have
560
2 Summary criminal cases are those which are dealt with only in the magistrates'
courts and, generally, carry a maximum penalty of six months' imprisonment.
3 This is analogous to the crisis experienced by health care professionals, demon-
strated by J. Waring and S. Bishop, `Healthcare identities at the crossroads of
service modernisation: The transfer of NHS Clinicians to the independent sector?'
(2011) 33 Sociology of Heath and Illness 661.
ß2017 The Author. Journal of Law and Society ß2017 Cardiff University Law School

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