YLAL is pleased to announce the publication of our latest report on social mobility and diversity in the legal aid sector: “One Step Forward, Two Steps Back”. The report is to be launched on 30 October 2013 at an event at the Keyworth Centre, London South Bank University. The event will run from 1830-2130. Our keynote speaker is Baroness Hale. The event will feature a debate with a panel of guests including Lucy Scott-Moncrieff – Director of Scott-Moncrieff & Associates Ltd and Chair of the Law Society's Equality and Diversity Committee; David Johnston – CEO of the Social Mobility Foundation; Chris Topping – Partner at Broudie, Jackson & Canter, Simao Paxi-Cato – YLAL and Invictus Chambers and James Wakefield – Director of the Council of the Inns of Court. The discussion will be chaired by journalist Raphael Rowe.
Speaking about the new report in the context of the Government's latest proposed cuts to legal aid YLAL committee member Carita Thomas said:
"The latest consultations on cuts to legal aid close this Friday. The Ministry of Justice say that legal aid policy isn't the way to achieve diversity in the profession and judiciary but the cuts will set back the clock on everything we have achieved - under the proposals you really will have to be rich in order to serve the poor. Most of the members who answered the survey behind our report went to state school, suffer from huge training debts and get paid relatively little. It is vital that they have the chance to access the profession - legal aid clients deserve the best and brightest lawyers too. How can we best serve our clients without being representative ourselves"
One Step Forward, Two Steps Back
Promoting social mobility and diversity in the legal aid sector has always been a central part of the work of the Young Legal Aid Lawyers (YLAL). We believe that the legal profession – like justice itself – should genuinely be open to all. Our February 2010 report entitled “Legal aid lawyers: the lost generation in the “national crusade” on social mobility” found that:
“aspiring lawyers from diverse backgrounds are finding it harder than ever to forge a career in legal aid… those from low-income families cannot afford to become legal aid lawyers and the legal aid profession is therefore becoming less and less representative of the people it serves: those without means”.
There have been a number of developments since our first report was published including the Legal Education and Training Review (LETR), the decision of the Solicitors Regulation Authority (SRA) to end the trainee solicitor minimum salary and legal aid cuts brought in by the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO). All of these will impact to varying degrees on social mobility in the legal aid sector. With these changes in mind we have produced this follow up report: “Social Mobility and Diversity in the Legal Aid Sector: One Step Forward, Two Steps Back”. The purpose of the report was to gauge where we are now. The report is based on a 2012 survey of our members. Three findings in particular emerged from the survey of our members, which form the basis of the report.
(1) High levels of debt combined with low salaries make legal aid work unsustainable for those from a lower socio-economic background
Many members had spent thousands of pounds on their legal education and training, with a significant amount spent on the high (and ever-increasing) fees for the vocational courses: the Legal Practice Course (LPC) and the Bar Professional Training Course (BPTC). The level of debt attributed to education and training was substantial. Sixty five percent of respondents had (or estimated that they will eventually have) over £15,000 worth of debt as a result of their education and 15% had (or will have) over £35,000 worth of debt.
Many members commented on how they were struggling with debt liabilities whilst surviving on a very low income from legal aid work. Of the respondents to our survey who were working in legal work 50% were earning between less than £20,000 and 5% were earning less than £10,000 per year. The combination of prohibitively expensive professional courses, high levels of debt and low salaries makes it extremely difficult for those from a lower socio-economic background to enter the legal aid profession and then to sustain a career in the sector.
(2) Unpaid work experience represents a barrier to social mobility
A clear trend to emerge from the survey data was the proliferation of unpaid work experience in the legal profession and in the legal aid sector in particular. Eighty-nine per cent of respondents to our survey had done unpaid legal work experience. The barrier that unpaid work presents to social mobility is self-evident. Respondents commented that they struggled to afford unpaid work placements for a number of reasons including having adult or child dependants; a lack of contacts (family or friends) in London where many legal aid practices are based and where unpaid work placements are offered; and the small number of part-time work opportunities to top-up a legal aid income.
Whether an employer is under a legal obligation to pay someone the National Minimum Wage (NMW) will depend on whether they fall within the definition of a “worker”. Several, recent Employment Tribunal cases have held that putative interns in the publishing and film industries were in fact workers. In view of this it seems likely that longer-term unpaid work placements in the legal sector may well be unlawful.
(3) Work experience is a pre-requisite to entry to the legal aid profession
A significant majority of respondents (80%) indicated that work experience (both paid and unpaid) had helped further their career in legal aid. Reasons given for undertaking work experience predominantly split into two interlinked categories. Firstly, employers regard it as essential – respondents consistently cited their experience as a paralegal, volunteer, and so on, as having been critical to securing a training contract or pupillage. Secondly, the vocational courses (the LPC and BPTC) are not preparing candidates sufficiently for the realities of day-to-day practice. Seventy-one percent of respondents who had undertaken the LPC favoured replacement of the course with a form of work-based learning.
Conclusions and recommendations
Based on these findings we make the following recommendations:
- The SRA should reinstate the minimum salary for trainee solicitors.
- Funds should be allocated to facilitate work experience placements in the legal aid sector. Placements should be well-structured to ensure that candidates benefit from their experience and are able to escape the “trap” of unpaid work.
- Robust guidance should be issued to the profession by the Law Society and the Bar Council on acceptable and lawful use of longer term unpaid work placements.
- Professional course fees should be regulated.
- The professional bodies should consider replacing the current route to qualification with a form of work-based learning.
- Recruitment guidance dealing with the problems of unpaid work experience should be actively promoted by the legal profession.
In his 2012 report “Fair Access to Professional Careers” writing on the subject of social mobility within the legal profession, Alan Milburn noted that significant progress had been made but that:
“There is… a lot more that needs to be done. The further up the profession you go, the more socially exclusive it becomes. Even more worryingly, entry to the law – and therefore the lawyers of the future – is still too socially exclusive.”
We agree. Significant progress has been made. The legal profession is considerably more diverse than it was thirty years ago. Nevertheless our findings make clear that real obstacles remain. Our concern – and one of the principal reasons that we embarked on this research and this latest report – is that as further cuts to legal aid take their toll, these problems will worsen. In our view this would be damaging both to the profession and to society as a whole. While political commitment to social mobility and diversity may ebb and flow, the underlying importance of having a legal profession representative of our society, remains constant. We hope that the recommendations contained within this report may go some small way toward achieving this.
Notes for editors:
1. The full report, “One Step Forward, Two Steps Back” can be accessed here. The data relied on in the report was collated during a 2012 survey of around 10% of our membership.
2. Our 2010 report on social mobility,“Legal aid lawyers: the lost generation in the “national crusade” on social mobility” can be accessed here.
3. The LETR was jointly conducted by the SRA, the BSB and the Institute of Legal Executives Professional Standards. The remit of the LETR was broad; encompassing the qualifying law degree, the vocational courses (the BPTC and LPC), pupillage, training contracts and continuing professional development. It provided an opportunity for interested groups and individuals to identify those aspects of legal training which work and those which do not. For more information see www.letr.org.uk.
4. On 16 May 2012 the SRA board decided to “scrap” the trainee solicitor minimum salary. The board stated that setting a minimum salary level for trainees above the National Minimum Wage (NMW) rate for employees was not in the public interest. At present, the minimum salary rate for central London is set at £18,590 p.a. and the rate recommended by the Law Society is £19,040 p.a. Elsewhere in England and Wales, the minimum rate is £16,650 p.a. and the recommended is £16,940 p.a. The new SRA policy will come into effect on 1 August 2014, from which point the only requirement for employers in terms of trainee salaries will be to pay trainees at least the main rate for employees under the NMW Regulations, which is £6.31 per hour from 1 October 2013 for those aged 21 years and over.
5. The Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) came into force on 1 April 2013 and brought significant changes to the civil legal aid system. LASPO removed a large number of areas of law from the scope of legal aid. These areas included immigration (save for asylum claims or work carried out for those in immigration detention); employment (except where there is a discrimination claim); education (except for Special Educational Needs work); welfare benefits (except for appeals to the Upper Tribunal and onwards); debt; clinical negligence for the majority of adults and children; and personal injury. More recently further legal aid cuts have been proposed by the Government: see “Transforming Legal Aid: Delivering a more credible and efficient system” Ministry of Justice, April 2013; “Transforming Legal Aid: Next Steps” Ministry of Justice, September 2013; and “Judicial Review Proposals for Further Reform” Ministry of Justice, September 2013. Included in the proposals are plans to reduce the fees paid in criminal, family, immigration and civil cases to varying degrees. The Bar Council observed in their response to Transforming Legal Aid (in relation to the proposed civil reforms) that:
“…the Equalities Impact Assessment recognises that those members of the Bar who will be affected by this proposal are more likely to be “female or BAME and younger barristers”. The Bar has worked hard in recent years to improve access to the profession and ensure it is more representative of the society we serve. This proposal would particularly affect those groups we have worked hard to attract”
6. Alan Milburn’s report “Fair Access to Professional Careers”, Rt. Hon Alan Milburn, Independent Reviewer on Social Mobility and Child Poverty, May 2012 can be accessed here.