Written evidence from Bar Council

About us

The Bar Council represents approximately 17,000 barristers in England and Wales. It is also the Approved Regulator for the Bar of England and Wales. A strong and independent Bar exists to serve the public and is crucial to the administration of justice and upholding the rule of law.

 

Summary

 

Question 1: How LASPO has impacted access to justice and for views on the post-implementation review and the criminal legal aid review

Overview

  1. In relation to civil and family legal aid, The Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) cut legal aid fee rates and removed whole areas out of legal aid entirely, with the result that large numbers of the public are no longer able to receive legal advice. The then government pledged a review within five years. The review that they undertook in 2018 resulted in little change and delayed addressing other areas such as Means Testing by establishing a further review.
  2. In relation to criminal legal aid, the May government accepted that the criminal legal aid profession was on the brink of collapse and they established a Criminal Legal Aid Review (CLAR) to study the sustainability of the provider base and make necessary changes. The review should have completed its work by now but has barely started it.

Civil and Family Legal Aid

  1. In September 2014, the Bar Council published its evidence on the damaging effects of the LASPO Act on access to justice one year after its implementation. Our findings of the effects of these legal aid cuts included:[1]
    1. “A preference for cutting costs over the provision of appropriate access to the courts for individuals to enforce their legal rights
    2. Excessive demands placed on under-resourced courts and judiciary
    3. A failure to provide appropriate funding mechanisms for low to medium-value complex cases
    4. A failure to provide appropriate funding mechanisms for cases without recoverable damages
    5. An increase in Litigants in Person (LiPs) which is unsustainable without wider reforms to make processes and procedures more transparent and accessible
    6. A failure to value legal services, especially early legal advice
    7. A failure to value a diverse legal profession and judiciary, and
    8. A diminishing optimism in viability of long-term careers at the self-employed Bar, especially for family practitioners.”
  2. The government at the time made no changes following the presentation of this evidence. The Ministry of Justice (MoJ) waited a further four years to undertake its own review. In October 2018, the Bar Council submitted further evidence to the MoJ review.[2] The additional evidence was from detailed research with barristers who specialise in this work. The Bar Council’s findings were summarised in its press release:[3]
    1. “More than 91 per cent of respondents reported the number of individuals struggling to get access to legal advice and representation had increased or risen significantly;
    2. 91 per cent of respondents reported a significant increase in the number of litigants in person (members of the public attempting to represent themselves in court) in family cases; and 77 per cent of respondents reported a significant increase in the number of litigants in person in civil cases;
    3. 77 per cent saw a significant delay in family court cases because of the increase in litigants in person;
    4. Almost 25 per cent of respondents have stopped doing legal aid work; and
    5. 48 per cent of barristers surveyed do less legal aid work than before.”
  3. The press release quotes the Chair of the Bar at the time, Andrew Walker QC[4]:

"LASPO has failed. Whilst savings have been made to the Ministry of Justice's budget spreadsheets, the Government is still unable to show that those savings have not been diminished or extinguished, or even outweighed, by knock-on costs to other government departments, local authorities, the NHS and other publicly funded organisations. Nor do we accept that the reforms have discouraged unnecessary or adversarial litigation, or ensured that legal aid is targeted at those who need it, both of which the Act was billed as seeking to achieve.  If anything, LASPO has had the opposite effect, and has denied access to the justice system for individuals and families with genuine claims, just when they need it the most. We need a significant change of direction to rectify five years of failure."

  1. The Bar Council’s submission called for urgent immediate action in the following specific areas, which were to be considered minimum needs:[5]
    1. Crime: reverse the "innocence tax" upon those acquitted of criminal offences who are unable fully to recover the reasonable costs of a privately funded defence;
    2. Family: reintroduce legal aid in a range of family law proceedings, including for respondents facing allegations of domestic abuse and for private law children proceedings;
    3. Civil: reintroduce a legal help scheme for welfare benefit cases;
    4. Coroner inquests: relax the criteria for exceptional case funding where the death occurred in the care of the state and the state has agreed to provide separate representation for one or more interested persons; and
    5. Means testing: introduce a simplified and more generous calculation of disposable income and capital so that the eligibility threshold, and contribution requirements, are no longer an unaffordable barrier to justice.”
  2. In February 2019, the Government published the outcome[6] of its Review. It made some very minor changes but left the main cuts to civil and family legal aid in place. The then Chair of the Bar, Richard Atkins QC stated:[7]

“[..] The 500-page report offers little of substance to ease the impact of LASPO on vulnerable individuals seeking justice. Although up to £5m investment has been promised to improve technology for accessing legal advice and £3m over two years to help litigants in person navigate the court system, such monies are but a drop in the ocean given the impact LASPO has had on restricting individuals' access to justice.”

  1. The May government accepted some matters required change but, rather than implement the necessary changes, it instead announced another review. This area was Means Testing for legal aid, whereby members of the public who need legal advice and representation but cannot afford to pay for it, nevertheless fail the Means Test eligibility for legal aid.
  2. The Government stated:[8]

“725. [...] evidence submitted throughout the engagement phase has suggested that vulnerable defendants are no longer accessing or being delayed in accessing legal aid, due to having to pass another aspect of the eligibility test.”

  1. The Government quoted the multiple sources of evidence that had been supplied to it on the problems with the current Means Testing calculation and the changes that were needed to correct it, including from: the Law Society; the Housing Law Practitioners Association (HLPA); the Young Legal Aid Lawyers; Professor Donald Hirsh; the National Centre for Domestic Violence; and Women’s Aid.
  2. The Government’s “Action Plan”[9] in the face of this evidence, was not to make any changes to Means Testing but, instead, set up a further review to look into it. The reason they gave was that the terms of reference for the LASPO Review had not specifically included Means Testing and so a further review on that subject was needed. Page 11 of the Action Plan stated: “We will complete a comprehensive review of the legal aid eligibility regime by Summer 2020.”
  3. That review is still continuing. The Bar Council is one of the participants in the MoJ’s Stakeholder Advisory Group on Means Testing. The Bar Council is requested by the MoJ to keep the contents of that work confidential, but suffice to say that all the points that were made by stakeholders to the LASPO review about the problems with Means Testing, have been repeated to the Means Testing review. The latest indication on the timetable is that the MoJ are considering issuing a consultation document on the subject next year, with no actual changes introduced before 2022. When the expected 2021 consultation is issued, the professional bodies will again supply to the MoJ all the evidence that they had supplied to it three years ago. Meanwhile, many thousands more people who need legal advice will be unable to receive it due to these unnecessary, additional years of delay.
  4. Sadly, in our experience, it is all too common for successive governments to be under the misapprehension that setting up a review and conducting a consultation is “action”. Whereas the “action” that is actually and immediately needed is to restore funding for legal aid.
  5. The damage that LASPO has done to access to justice has been quite clear since the first year after its implementation; subsequent reports and evidence simply provide corroborative evidence. Nonetheless, no action has been taken by any of the last three administrations. The most recent evidence from the Bar Council comes from in depth interviews with 16 civil legal aid barristers and clerks which the Bar Council conducted between July and September 2020. Our interviewees were sampled to be broadly representative of the profession in terms of area of practice, protected characteristics and region of England and Wales in which they primarily practiced. A full report will be published by the Bar Council in due course. Key findings include:
    1. The widespread closures of advice centres and cuts to legal aid have severely reduced legal aid provision from high street solicitors, and increased pressure on those that remain. Early legal help and advice (particularly regarding welfare benefits advice) prevent legal work becoming unnecessarily complicated and firefighting in nature. Barristers report that clients who have cases with legal merit are often not able to access a solicitor on legal aid. Solicitors firms that do still take on legal aid work are stretched thin, resulting in difficult and stressful working conditions for solicitors and barristers. The lack of access to early legal advice, due to cuts to the scope of civil legal aid, mean that legal aid is only available once the matter has reached a crisis. Barristers are frequently having to take on cases that would have never needed the trouble and expense of court time had their clients received sensible welfare benefits advice in the early stages of their legal problem.
    2. Practitioners undertake increased case volume in an attempt to compensate for the heavy reduction there has been in their fees. Due to the legal aid fee cuts, senior practitioners can be earning a considerably lower hourly rate in real terms than they were at the start of their careers. Some barristers have been forced to move away from legal aid work altogether. Others have tried to maintain a living by compensating for the reduction in fees by taking on more cases and working longer hours. This results in an all-hours, last-minute, working culture without a decent work-life balance. The Bar has always been a place where people choose to spend long and antisocial hours completing work to a high standard, but 60 or 70-hour weeks, all-nighters and weekend working are now becoming a basic expectation in order to maintain a financially viable practice.
    3. There is a serious problem with legal representation for bereaved families being represented at inquests. Bereaved families are only able to access legal aid for inquests when Article 2 has been engaged or where there is a wider public interest - broadly, meaning when it has been demonstrated that the state had a duty to protect the deceased against a real and immediate risk to life, or where its investigative obligations arise. In cases where the family are successful in receiving legal aid representation, the fixed brief fee for inquests is too low to give junior counsel representing a bereaved family sufficient time to fully prepare for and attend the first day of the hearing on their behalf. Decision making as to which inquests get exceptional case legal aid funding is unclear and, even if funding is granted, it can come very late, making the process stressful for families and their legal representatives.
    4. In a complicated case that may involve two, three or four core state agencies (the police, the Ministry of Justice, a local authority, a health trust, for example), each state agency is being represented by counsel or a team of counsel. This means that, in practice, a bereaved family is likely to be represented by one junior barrister with limited time and resource to investigate the case and is in court facing a number of more senior practitioners. In February 2019 the Ministry of Justice stated that it would not be widening the legal aid provision for bereaved families at inquests, on the grounds that it is an inquisitorial system.[10] However, the reality is that junior barristers are put under huge pressure to do a vast amount of additional unpaid work or to represent families for free at inquests, (unless the client is eligible for Legal Help[11]) in order to try and bring some balance and therefore fairness.

Criminal Legal Aid

  1. In December 2018, the MoJ announced its Criminal Legal Aid Review (CLAR). It stated:[12]
    1. “The review will consider criminal legal aid throughout the life cycle of a criminal case, including:
      1. pre-charge advice at the police station, advice and advocacy services in the Magistrates’ Court and Youth Court, and advice and advocacy for prisoners
      2. advice and litigation services in the Crown Court through the Litigators’ Graduated Fee Scheme (LGFS)
      3. advocacy services in the Crown Court through the Advocates’ Graduated Fee Scheme (AGFS)
      4. litigation and advocacy services for very high cost Crown Court cases though the Very High Cost Case (VHCC) Scheme
    2. The review will also consider wider changes to the justice, social, economic, business and technological landscape that are impacting on the criminal legal aid system – including, but not limited to, Her Majesty’s Court and Tribunals Service (HMCTS) reform, the Attorney General’s review of disclosure, and wider modernisation work being pursued by the Home Office and the police.
  2. Nearly two years after the announcement of the review, with the exception of a minor “Accelerated Asks” process[13], the review is only now being set up. Covid-19 is responsible for some of this delay, but it cannot be blamed for the full two-year delay. The crisis in the funding of the criminal justice system gets worse each year, and delays in  establishing a review, let alone introducing changes, are disheartening to say the least.
  3. In terms of criminal legal aid fees, barristers are paid under the Advocates Graduated Fee Scheme (AGFS) for Crown Court defence cases, and as a disbursement of the solicitor’s legal aid fee for Magistrates Court defence cases. Magistrates Court fees paid to solicitors have not increased for many years and therefore have been eroded significantly by inflation. A barrister who undertakes a Magistrates Court full day trial can expect to receive £150, to cover the full day in court and all the prior preparation.[14]
  4. In relation to Crown Court legal aid fees, a summary of the AGFS fees over the last ten years illustrates the succession of drastic cuts, followed by some uplifts in 2018 and 2020, none of which brought fees back to previous levels.
  5. In April 2010, graduated fees were cut by 13.5%, staged over three years: a 4.5% cut in 2010, a 4.5% cut in 2011 and a 4.5% cut in 2012.[15] In addition, the AGFS Scheme was extended to cover 40-60 day cases, but paying at a daily rate calculation lower than that for 1-40 day cases. The Ministry of Justice calculated that taking 40-60 day cases out of the Very High Cost Case Scheme and putting them into the extended Graduated Fee Scheme was a 39.5% fee cut for those cases.[16]
  6. In October 2011 more fee cuts were introduced[17]:
    1. fees for murder cases (Category A) were reduced to the level of those for serious sexual offences (Category J);
    2. fees for high value fraud cases (Category G) were reduced to those for low value fraud (Category F);
    3. fees for trials that crack in the second or final third were reduced by 11%;
    4. for trials that crack in the final third, the Pages of Prosecution Evidence uplift was made the same as for trials that crack in the second third;
    5. fees for Sentencing Hearings were reduced by treating them as Standard Appearances;
    6. fees were reduced to a fixed fee of £203 where the client elects Crown Court trial and the case does not then proceed to trial.
  7. In the Bar Council’s October 2013 response[18] to the then governments “Transforming Legal Aid: Next Steps” consultation, Professor Martin Chalkley reported on his analysis of the fees in the Advocates Graduated Fee Scheme (AGFS) from 2007 to 2013.[19] He reported (page 52) that between 2007 and 2013, “My findings are that as of 2013 AGFS prices have been reduced by 21.0% in cash terms equating to 37% in real terms.”
  8. In 2018, following the consultation, the Ministry of Justice re-structured the AGFS to reduce reliance on page count as a determining factor in the calculation of the fee, and instead increasing the number of categories of case. On 31 December 2018, fees were increased for the new scheme.[20] The amount of increase in funding depends upon which year’s basket of cases it is compared against, but was estimated by the MoJ to be an increase of between £23m and £24m, which is about a 10% increase.[21]
  9. In August 2020, as part of the Criminal Legal Aid Review (CLAR) ‘Accelerated Asks’ consultation[22], the MoJ announced some changes to the fee scheme:
    1. a fixed fee of the equivalent of 1.5 hours for reading “unused material”, with the ability to claim for additional hours if the reading time is over 3 hours;
    2. cases with the highest page count (roughly 7%) to be able to claim for their preparation of reading pages above the statutory threshold;
    3. increasing the fee for a cracked trial, which was calculated at 85% of the brief fee, to now be calculated at 100% of the brief fee.
  10. The fee changes were introduced by the Criminal Legal Aid (Remuneration) (Amendment) Regulations 2020 (S.I. 2020 No. 903) and came into force in September 2020.
  11. Whilst these minor fee increases are welcome, they have only scratched the surface of the underfunding of criminal legal aid. In the meantime, we are expected to continue to await the long-awaited CLAR review to even have the hope of beginning the process of putting things right.

 

Question 2: The role of the Legal Aid Agency

  1. The Bar Council’s experience of the Legal Aid Agency (LAA) is a mixed picture of constructive engagement and frustration.
  2. Bar Council representatives enjoy a good working relationship with LAA staff dealing with policy and operational issues at a high level. The LAA management and operational staff have worked hard to be constructive, particularly during the Covid-19 crisis, to assist with cashflow of practitioners, for example, by amendments to the rules relating to claiming for hardship payments and payments on account, and in processing  claims in an efficient manner.
  3. Given that situation, it may therefore seem surprising that there is a widespread perception from barristers and solicitors of a “culture of refusal” at the LAA. This is not due to LAA staff making it a personal mission to reject claims; rather, it is that the fee regulations are so prescriptive and complicated that the smallest departure from these complex processes when making a claim, results in the claim being rejected or more evidence being demanded. The LAA justify these stringent demands on the grounds that they are custodians of public money and would fall foul of the auditors if they paid a fee claim without sufficient evidence to justify it.
  4. Whilst the Bar Council appreciates that point, there is a balance to be struck. The Bar Council has proposed ‘dip sampling’ where the LAA ask for detailed evidence in a sample of cases to check that solicitors and barristers are properly claiming the legal aid fee for the case, rather than requiring to see detailed evidence for every claim. We hope this approach finds favour with the LAA because the administration involved in considering every claim in detail is enormously burdensome to the LAA and to practitioners.
  5. The LAA could make the life of practitioners simpler in the Exceptional Case Funding process. Practitioners say that there is little accessible, clear guidance available on how to word or structure applications for exceptional case funding, and decisions on whether to grant this funding appear arbitrary and lacking due attention to the merits of a case. Solicitors and barristers undertake a great deal of wasted administrative work applying for funding; they can end up doing involuntary, unpaid work on cases where there are delays in funding applications; and clients are left in limbo not knowing whether or not they will be liable for the legal costs of their case.
  6. Another frustration the Bar Council encounters is the division between the LAA and the MoJ. It is frequently the case that when the Bar Council raises a problem with legal aid fees with the LAA, they respond that some of what is being asked for is an operational matter that they can deal with but other aspects are a policy matter for the MoJ. Operational and policy matters are, in reality, inter-related and it is frustrating to raise an issue in one forum only to be told it needs to be raised in a different forum. The ideal would be to have MoJ and LAA staff present at the same meetings with the Bar Council, but combined meetings do not tend to happen as a matter of course.
  7. A recent example of the delays that this can cause is in family legal aid. Under the Family Advocacy Scheme (FAS), a barrister can be paid for up to two conferences with a client and up to two advocates meetings. However, at the start of the Covid-19 crisis when cases were moved to online, it often became necessary for barristers to have more than two conferences or meetings prior to the hearing. The Family Law Bar Association (FLBA) raised this as a matter of urgency with the LAA and MoJ. They submitted a paper dated 31 March 2020 for the 2 April meeting of the “Covid-19 Practitioners Working Group” which had been set up jointly by the LAA and MoJ to address these sorts of issues. The matter was discussed at the 2 April meeting and the LAA undertook to consider it. Five months later the LAA responded that they had decided that this was not an operational matter for the LAA but was, instead, a policy matter for the MoJ. The LAA therefore arranged a meeting for the FLBA to make their representations to the MoJ. The meeting took place on 22 September and the FLBA re-circulated their paper to the MoJ. The MoJ’s policy staff at the meeting said that they would “look into” the issue. A response is yet to be provided.

 

Question 3: Recruitment and retention problems among legal aid professionals

  1. The recruitment and retention problems of legal professionals were evident before Covid-19 and have been made worse by it. There is no clear dividing line between Questions 3 and 5, so the Bar Council is answering them together. Another reason for answering both questions together is that the problems experienced by legal aid professionals have a direct effect on the services they can provide and therefore the support members of the public receive, the effect on legal professionals, and the effect on clients, are directly related.
  2. With regard to solicitors undertaking legal aid work, the Law Society has undertaken extensive research into the recruitment and retention problems of legal aid solicitors. The Bar Council therefore defers to the Law Society’s expected submission, and our comments will be in relation to barristers.
  3. In May 2020 the Bar Council surveyed Heads of Chambers. The results showed that chambers that primarily undertake publicly funded work have been the hardest hit by Covid-19. 63% of chambers that receive over half their income from publicly funded criminal work saw their income fall by over 60%, compared to pre-Covid-19 levels. This compared to only 13% of sets that receive under a quarter of their income from publicly funded work. Despite making full use of the government furlough and grant schemes where appropriate, 86% of chambers that received over half their income from publicly funded criminal work and 69% of those that receive over half their income from publicly funded family work, felt they would go under within a year, without additional financial support. This compared to 31% of all those chambers that receive less than a quarter of their income from publicly funded work.
  4. In July 2020 the Bar Council undertook a wider survey of barristers. The survey found that publicly funded barristers had experienced an average 49% reduction in hours worked and 69% reduction in fee income (compared to pre-Covid-19). 29% of publicly funded barristers were uncertain whether they would renew their practising certificate in Spring 2021. Only 20% thought they would still be practising from their current chambers in a year. 49% were experiencing financial hardship.[23]
  5. The publicly funded Bar is the most diverse part of the Bar. Women, state-educated, and BAME barristers are more likely to work in publicly funded areas of law. 71% of self-employed BAME barristers were experiencing financial hardship in July 2020 or expected to experience it soon.
  6. Further statistical evidence for the dire reduction was provided when, on 24 September 2020, the Ministry of Justice published the quarterly legal aid statistics for the period April to June 2020. The publication stated:[24]

Crown Court expenditure decreased this quarter; down by 41% compared with the same period of the previous year. [...] Magistrates’ court expenditure fell 49% over the same period. [...] Representation orders granted in magistrates’ courts decreased by 37% while Crown Courts decreased by 27%.

  1. There is expected to be a significant drop in the number of pupillages offered by chambers next year. So, although the educational establishments are producing lots of highly qualified candidates for the legal profession, if there are fewer legal aid cases available due to Covid-19, and the fee rates are so low after years of erosion that it is difficult to make a living, the opportunities to recruit and maintain a diverse pool of barristers – and the potential for a more diverse judiciary are likely to die away.
  2. The Bar Council’s recent research interviews with barristers who specialise in civil legal aid found that these barristers choose to go into publicly funded work out of a sense of vocation, knowing they will earn substantially less than colleagues in private practice. However, the rates of pay at the junior end are now so low, particularly when seen alongside increased living costs and student debt, that there are real concerns among practitioners over sustainability at the junior end in relation to:
    1. Recruiting and retaining the best quality candidates for publicly funded work.
    2. Social mobility for those from less privileged backgrounds who do not have financial support from a family or partner to support them entering practice and in progressing their career.
    3. Burnout resulting from years of financial stress and emotional pressure: training, securing pupillage, then tenancy at the Bar, followed by a heavy caseload often necessitating considerable travel and out-of-pocket expenses to build a practice.
  3. In preparation for the Criminal Legal Aid Review, the Bar Council has had very constructive engagement with the MoJ and CPS over data-sharing. The Bar Council entered into a Data Sharing Agreement whereby data that the Bar Council holds on individual barristers has been matched with MoJ and CPS data on fees paid. This has produced a rich database for analysis and allowed us to produce the most complete picture ever of the working patterns and finances of publicly funded Criminal barristers. One aim of the agreement is to generate an agreed, factual report of the data, from which evidence-based decisions can then be taken. This work is expected to be published once there is agreement from all parties as to the accuracy of the results. In the meantime, our initial analysis indicates that:
    1. Numbers entering the Criminal Bar have been healthy to date; but retention of experienced practitioners is a significant problem.
    2. Remuneration at the junior end is insufficient to support those without independent means.
    3. Fee income between groups of barristers is not equitable, even if barristers did the same number of cases, with the intersection between race and gender being the most significant differential.
    4. Over and above these pre-existing concerns, Covid-19 has presented an existential threat to the Criminal Bar through lack of court-work, which is the trigger for criminal barristers to be paid.
  4. On 1 October the Bar Council published its submission[25] to the Government’s Spending Review. It reported:
    1. “Our data shows that, even before the Covid-19 pandemic, a career at the criminal Bar was becoming unviable for all but those with independent means. Publicly funded criminal barristers in the first two years of practice were, in 2019/20, typically earning less than £13,000 pre-tax profit after they had paid essential expenses and memberships.”
    2. “From 2010 to 2019, funding for the Legal Aid Agency fell by 21% in cash terms. Focussing on criminal legal aid, by the 2019-20 financial year, criminal legal aid spending had fallen to £821m (down from £1,072m in 2011-12 and £906m in 2015-16). This is despite population growth of 7% in England and Wales. Therefore, criminal legal aid fee increases of an additional £251m per year would bring funding up to a fairer level.”
  5. Our CLAR dataset shows that, even before Covid-19, the problem of retaining suitably qualified and experienced barristers to the Criminal Bar, ensuring that they have decent working conditions and remuneration, and building towards a Bar and judiciary whose diversity and social mobility truly represents the population of England and Wales is urgent. Covid-19 has pushed an already fragile criminal justice system right to the brink.

 

Question 4: The impact of the court reform programme and the increasing use of technology on legal aid services and clients

  1. HMCTS has worked hard during Covid-19 to enable the wheels of justice to continue turning. They have recently rolled out their Cloud Video Platform (CVP) to enable more remote hearings and are currently working on their next piece of technology called Video Enabled Justice (VEJ) that will have even greater functionality. They are also rolling out the Common Platform in the Criminal area which will join up all parts of the criminal justice sector and enable better access to the documents in the case from start to finish. All of these developments are to be welcomed. The benefits will be to the efficiency of cases irrespective of whether they are funded by legal aid or privately.
  2. However, technology is not a panacea. A recent example from a barrister in public law children proceedings where the assisted parties were publicly funded demonstrates the point. Due to Covid-19 the hearing was undertaken remotely. The barrister[26] recalls:

Both parents (unusually) were able to purchase laptops so that they could join the Teams hearing from the court room and be cross-examined and still see the person asking the questions. It was unedifying to say the least to see a parent at one point have to sit with their back to the Judge and hunched over the microphone so that their responses could be heard, whilst being cross-examined.
[...] these parents were the exception. Most parents in public law children proceedings only have access to a phone (and often not even that if it has been taken away for interrogation). If they have a phone they cannot participate in case management hearings other than by joining Teams on audio only settings. They cannot see their Judge or the other parties. Many have cognitive difficulties and they rely on non-verbal clues to function. Remote hearings take away this function, hence the need for attended hearings. The modernisation programme [...] is no substitute for restoration of legal aid.

  1. The question refers to “the court reform programme”. Words such as “transforming” and “reforming” tend to be used by government organisations because of their positive sounding connotations, whereas the reality is often the opposite. So, for example, the MoJ’s earlier “Transforming Legal Aid” programme was a programme to cut legal aid. All of the MoJ’s cuts to legal aid have been given the word “reform”. Similarly, HMCTS’ “court reform programme” has been code for closing courts down. The Bar Council’s Spending Review submission noted:
    1. “Since 2010, eight Crown Courts (out of 92) and 164 Magistrates’ Courts have been closed (out of 320), as well as 90 County Courts (out of 240), 18 tribunal buildings (out of 83) and 17 family courts (out of 185). That is a total of 297 closures, leaving an estate of approximately 350 buildings. There are now backlogs throughout the justice system, particularly in the criminal justice system.”[27]
  2. HMCTS are not to be singled out for blame for these closures; their hand was forced by successive government cuts. As the Bar Council’s Submission states:
    1. “HMCTS had an annual budget of £1.9 bn in 2016/17. In 2019/20 this had been reduced to under £1.7 bn as part of the commitment in the 2015 Spending Review to cut funding for justice by £500m in 5 years. The £142m additional funding for court infrastructure that was announced in July 2020 as part of the Covid-19 emergency was welcome in this context. It represents an increase of more than double the existing budget for improvements to the physical and remote court estate, and will allow over 100 courts to add or enhance remote technologies. There are, however, over 300 courts in England and Wales. For these changes to be meaningful in the present and work for the long-term, the £142m investment will need to be repeated annually for at least the next three years so that, after years of underinvestment, every courtroom in the country is fit for purpose to clear the backlog and reduce waiting times to below 2019/20 levels.”[28]

 

Question 5: The impact of Covid-19 on legal aid services and clients

  1. See question 3

 

Question 6: What the challenges are for legal aid over the next decade, what reforms are needed and what can be learnt from elsewhere

  1. As stated above, reforms” is a loaded word, because the government has used it as a euphemism for “cuts”. The Bar Council’s view therefore is that we do not need “reforms” we need sufficient resources for a properly funded legal aid system. The funding cuts to legal aid that have caused so much damage need to be replaced with proper investment. The public needs to have access to justice. They should not be forced to represent themselves in court, reducing their prospects of receiving justice, and increasing court costs as cases take longer. We do not need to learn that lesson “from elsewhere”, we have already learned it from our own experience.
  2. The Bar Council’s Spending Review submission restated some of the points that the Bar Council has been making in its submissions for years. It addresses what needs to be done to improve the justice system by investing in legal aid:
    1. Make non-means tested legal aid available for all domestic abuse cases: As the Domestic Abuse Bill makes its progress through the House of Lords, we urge the government to go further in ensuring all domestic abuse cases can access the appropriate legal help. [...] The Bar Council endorses the recommendation of the MoJ’s expert panel that alleged perpetrators and alleged victims of domestic abuse should be able to access legal aid, so that lack of legal representation or evidential difficulties do not place barriers in the way of victims seeking redress.”[29]
    2. Introduce early access to legal advice for social welfare issues: Individuals and organisations across the legal services sector agree that early legal help for social welfare issues saves considerable hardship and suffering by preventing people’s legal issues from escalating. [...] Since the implementation of LASPO 2012, over half of the not-for-profit law centres or agencies offering free legal advice have been closed. Where law centres remain, much of the specialist advice for social welfare issues (including debt, employment, welfare benefits, housing and immigration) has been removed. As the Equality and Human Rights Commission has reported, legal need is often simply going unmet. [...] The World Bank in 2019 recommended that global cost benefit analyses of legal aid indicated overwhelmingly that the economic benefits of providing legal help through legal aid significantly outweighed the costs. One example is restoring legal aid for early intervention. Someone might be evicted from their home for not paying their rent, due to their benefits having been wrongly stopped. Restoring legal aid for early advice on benefits matters would mean that the eviction stage would never be reached. Legal aid intervention at an early stage is cheaper than only having legal aid when the matter has escalated to crisis point and the matter is more expensive to put right. [...] Another example is litigants in person. A case in the family or civil court, where one or both parties is not legally represented, takes much longer. The costs of increased court time are likely to be greater than the costs of having provided legal representation. Also, in many family or civil cases, early legal advice can mean that a case is settled before court, which again saves money. With our solicitor colleagues at the Law Society, the Bar Council urges government to restore funding for early legal help.”[30]
    3. A frequent review of advocates fees: The politics needs to be taken out of legal aid; it exists to protect some of the most vulnerable people in society or those whose liberty is at risk. For a long time, justice funding has been unpredictable, unplanned and stop-start in nature. For example, in criminal legal aid, the fees paid to barristers and solicitor advocates for defence advocacy in the Crown Court are governed by Remuneration Regulations in a Statutory Instrument which has no mechanism to keep fees at a real-terms level by making increases for inflation. The result is a stop-start system of energy-sapping reviews (not least for the government) every few years and the stagnation of fee levels. [...] Other professions have efficient mechanisms by which their public funding is reviewed, so we recommend that a long-term and robust system of reviewing fees paid to barristers and solicitors be introduced, so that fee levels can keep pace with market forces and inflation. An independent fee review body could be an option that could look at the evidence and set a figure.”[31]
    4. Properly invest in the justice budget by £2.48bn – an extra 22p per person per day: In 2019, annual justice spending in England and Wales (Ministry of Justice (MoJ) budget plus Crown Prosecution Service (CPS) budget) was £144 per person, or 39 pence per person per day. This represents an overall 29% reduction in spending per person in real terms between 2010-2019. Within that, the CPS and the Legal Aid Agency (LAA) were particularly hit. The CPS saw a 39% reduction in spending per person in real terms between 2010-2019 and the LAA a 37% reduction. This is not, however, limited to criminal justice; the entire justice system has suffered – civil, family and criminal alike. The jurisdiction of England and Wales is a European outlier in slashing justice spending to this extent: in the last decade, England and Wales has experienced by far the largest percentage reduction in justice spending compared with other European countries.”[32]
    5. “Without restored funding, particularly to legal aid, access to justice will be further threatened. Adjusting for inflation and to simply bring the budget to a level it can efficiently deliver, the Government needs to provide an extra £2.48bn (29%) of annual spending on the justice system. That equates to an extra 22 pence per person per day.”[33]

 

November 2020

 

 

 


[1] “The Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO): One Year On. Final Report” September 2014. Page 11. https://www.familylaw.co.uk/docs/pdf-files/LASPO_One_Year_On_-_Final_Report__September_2014_.pdf

[2] “LASPO Five Years On: Bar Council submission to the Ministry of Justice

LASPO Post-Implementation Review” October 2018 https://www.barcouncil.org.uk/uploads/assets/e89215f4-6588-491d-820390e1809f5905/laspopirsubmissionbarcouncilfinal.pdf

[3] Bar Council Press Release 25 October 2018 https://www.barcouncil.org.uk/resource/bar-council--laspo-has-failed.html

[4] Bar Council Press Release 25 October 2018 https://www.barcouncil.org.uk/resource/bar-council--laspo-has-failed.html

[5] Page 3. “LASPO Five Years On: Bar Council submission to the Ministry of Justice LASPO Post-Implementation Review”  October 2018 https://www.barcouncil.org.uk/uploads/assets/e89215f4-6588-491d-820390e1809f5905/laspopirsubmissionbarcouncilfinal.pdf

[6] Ministry of Justice, “Post-Implementation Review of Part 1 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO)”, February 2019

https://www.gov.uk/government/publications/post-implementation-review-of-part-1-of-laspo

[7] Bar Council Press Release, 7 February 2019. https://www.barcouncil.org.uk/resource/laspo-review--bar-council-reaction.html

[8] Page 168. Ministry of Justice, “Post-Implementation Review of Part 1 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO)”, February 2019 https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/777038/post-implementation-review-of-part-1-of-laspo.pdf

[9] Ministry of Justice, “Legal Support: The Way Ahead. An action plan to deliver better support to people experiencing legal problems” February 2019 https://www.gov.uk/government/publications/legal-support-action-plan

[10] Ministry of Justice (February 2019) “Final Review of Legal Aid for Inquests” https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/777034/review-of-legal-aid-for-inquests.pdf

[11] The Civil Legal Aid (Procedure) (Amendment) Regulations 2020 were laid before Parliament on 21 April 2020 and came into effect on 15th May 2020. These altered the Legal Help provisions to allow (1) the waiver of the financial contribution for applicants in certain article 2 cases, and (2) the backdating of some Legal Help claims. However, even if the junior barrister is able to get funding for advocacy at the inquest at very low legal aid rates, they will not necessarily be paid for their preparatory work, which depends on factors such as the solicitor’s application for Legal Help, the LAAs assessment of client eligibility or exercise of discretion to waive eligibility criteria. Consequently, even under these circumstances a lot of the preparation work done will still be unpaid work.

[12] https://www.gov.uk/guidance/criminal-legal-aid-review

[13] https://consult.justice.gov.uk/criminal-legal-aid/criminal-legal-aid-review/

[14] Magistrates Court Protocol, Annex A  https://www.barcouncilethics.co.uk/wp-content/uploads/2017/10/2019-Magistrates-Court-Protocol-final.pdf

[15] The Criminal Defence Service (Funding) (Amendment No.2) Order 2010. S.I.1181.

[16] “Legal Aid: Reforming Advocates Graduated Fees and Very High Cost (Crime) Cases 2010” Ministry of Justice and Legal Services Commission, 5 April 2010, paragraph 185.

[17] Criminal Defence Service (Funding) (Amendment) Order 2011.

[18] http://www.barcouncil.org.uk/media/235755/bar_council_response_to_the_transforming_legal_aid__next_steps__final.pdf

[19] The 2013 rates are in "The Criminal Legal Aid (Remuneration) Regulations 2013". S.I. 2013. No. 435. http://www.legislation.gov.uk/uksi/2013/435/pdfs/uksi_20130435_en.pdf

[20] “The Criminal Legal Aid (Remuneration) (Amendment) (No.2) Regulations 2018” S.I. 2018 No. 1323.

[21] “Amending the Advocates’ Graduated Fee Scheme: Impact Assessment” IA No: MOJ014/2018,  10/12/1028

[22] https://consult.justice.gov.uk/criminal-legal-aid/criminal-legal-aid-review/

[23] Bar Council (July 2020) “Bar Survey Summary Findings July 2020” https://www.barcouncil.org.uk/resource/bar-survey-summary-findings-july-2020-pdf.html

[24] https://www.gov.uk/government/statistics/legal-aid-statistics-quarterly-april-to-june-2020

[25] Bar Council Spending Review Submission, September 2020 https://www.barcouncil.org.uk/resource/bar-council-spending-review-submission-september-2020-pdf.html

[26] The barrister is not being named in order to maintain lay client confidentiality.

[27] Bar Council Spending Review Submission, September 2020 https://www.barcouncil.org.uk/resource/bar-council-spending-review-submission-september-2020-pdf.html

[28] Bar Council Spending Review Submission, September 2020 https://www.barcouncil.org.uk/resource/bar-council-spending-review-submission-september-2020-pdf.html

[29] Bar Council Spending Review Submission, September 2020 https://www.barcouncil.org.uk/resource/bar-council-spending-review-submission-september-2020-pdf.html

[30] Bar Council Spending Review Submission, September 2020 https://www.barcouncil.org.uk/resource/bar-council-spending-review-submission-september-2020-pdf.html

[31] Bar Council Spending Review Submission, September 2020 https://www.barcouncil.org.uk/resource/bar-council-spending-review-submission-september-2020-pdf.html

[32] Bar Council Spending Review Submission, September 2020 https://www.barcouncil.org.uk/resource/bar-council-spending-review-submission-september-2020-pdf.html

[33] Bar Council Spending Review Submission, September 2020 https://www.barcouncil.org.uk/resource/bar-council-spending-review-submission-september-2020-pdf.html