Evidence submitted by The General Council
of the Bar
INTRODUCTION
1. In December 2003, the Constitutional
Affairs Committee announced details of its inquiry into Legal
Aid.
2. The guiding principle underpinning the
Bar Council's answers to the questions posed in the terms of reference
has been to avoid making simple "trades union" points
but to concentrate on the question: "what is in the public
interest?".
Question 1: What evidence is there of the
emergence of "advice deserts"?
3. The term "advice deserts" connotes
the problem of variable access and sometimes no access to legal
aid, but it is often important to distinguish between the various
types of "advice deserts" as they may require different
solutions.
4. For example, in some areas there may
be an acute lack of generalist lawyers available for basic advice
in all areas of work. The term can also apply to the acute shortage
of specialists in important areas of social welfare.
5. An example of the latter form of "advice
desert" is highlighted in the area of family work by the
survey of solicitors' firms contracted to the LSC for family work
undertaken by the National Centre for Social Research, advised
by Professor Gwynn Davis and published in January 2003. This found
that (1) there was a significant proportion of the Family Law
Bar which was not prepared to accept publicly funded work following
the introduction of the graduated fees system and (2) this evidence
of the "flight from family legal aid", although most
marked in London and the South-East, is in fact a nationwide phenomenon.
6. This is a reminder that, when the rate
of reward drops below a critical level in a particular area, problems
arise in relation to the willingness of practitioners in that
area to provide services at the available rate. Choice of counsel
will be materially reduced. Solicitors in provincial areas are
finding it increasingly difficult to find suitably qualified and
experienced counsel to defend grave and complex criminal cases.
Ultimately, a failure to invest in the availability of specialist
advocates places pressure on and generates costs in other areas
of the criminal justice system.
7. There are, of course, sets of chambers
in well over 100 towns in England and Wales. The Bar is not simply
London-based. The concern must be to ensure that this wide availability
of specialist advocacy and advice does not diminish in the publicly-funded
fields. In addition, for a substantial time, the Bar Council and
the Law Society have run pro bono units, and the Bar runs a Free
Representation Unit where the most junior practitioners and students
represent clients in tribunals. Valuable as these resources are,
they are not an adequate substitute for proper funding.
Question 2: What action is being taken to
ensure that there is access to legally aided advice in all legal
specialisms?
8. An example of a new development to build
a network of providers of legal services is the "Specialist
Support pilot" conducted recently. In this pilot 92% of respondents
stated that the support had a positive impact on their client's
case. The pilot was established in 2000 to explore ways of providing
expert legal advice and support to all General Civil Contract
holders (including family law practitioners) and General Help
with Casework organisations in community care and welfare benefits.
Services can provide one-off advice, assist with the running of
complex cases and deliver training courses on the latest legal
developments. The December 2003 edition of the LSC's Focus at
pages 14-15 shows what is being done.[27]
9. The various general areas of law covered
include:
The service providers include:
— Barristers' sets of chambers
— Citizen's Advice Bureaux (CABx)
— Organisations such as Mind, Shelter,
Liberty and the Public Law Project.
This type of network should be expanded.
10. The BarDIRECT Scheme is an innovation
which is proving successful. It means that the Bar Council assesses
an organisation and, if the latter is equipped and organised adequately
to run its own litigation and instruct a barrister, grants a licence
to instruct the Bar directly. This introduces maximum flexibility
in access to the Bar, while retaining its referral functions.
In essence, the organisation is demonstrating its capacity to
be its own solicitor, even if it does not have a solicitor on
the staff. The scheme is being used in the provision of legal
advice, for example, in Immigration cases. Advisors approved by
the Immigration Commissioner are now approved under BarDIRECT
and thus have direct access to specialist barristers.[28]
The Bar would wish to see how this approach can be developed across
the publicly-funded field.
11. These mechanisms should be fully engaged
in public service law provisions. At the moment these schemes
are relatively undeveloped. More needs to be done. They must be
seen in the context of the evidence above in relation to "advice
deserts" and of the concern that unless more is done soon
the number of private practitioners—solicitors or barristers—prepared
to continue to provide publicly funded specialist services will
further diminish.
Question 3: How can the Department for Constitutional
Affairs and the Legal Services Commission provide incentives for
legal aid practitioners to continue legally aided work?
12. The legal profession has long recognised,
and accepted, that income levels in such areas of work will be
below those available in privately-funded work.
13. There is nevertheless an attraction
for many in doing the kind of work which is publicly funded. This
means that the public service Bar has historically recruited satisfactorily,
even though the financial rewards are lower. However, there must
be a bottom limit below which even well-intentioned professionals
will not go. At that stage recruitment will be affected by poor
perceptions. Such evidence can be found in forceful terms in the
2003 Shapland & Sorsby report on the Young Bar.[29]
14. There must be careful monitoring of
the position so that the commitment of entrants to the profession
who wish to do this sort of work is not overwhelmed by economic
pressure. Lessons learned in the educational and health sectors
should not be forgotten in the rush to control spending in relation
to legal services.
15. The goal is to stop the present trend
of discouraging new entrants to legally-aided work and to retain
existing practitioners.
16. The reality is that financial reward
is important. The perception of new and would-be entrants to the
profession is that those doing publicly funded work have endured
cuts in fees and that remuneration rarely increases in this area.
17. Accordingly, as the older practitioners
retire, and those practitioners who can move away from publicly
funded work to privately funded work, recruitment fails to keep
pace. Both in the law and other professions, young practitioners
have often begun wholly or partly in the public sector. This has
provided mutual benefit, giving the young professionals the opportunity
to hone their skills, and providing public service with well-motivated,
able young practitioners. We are now at the point where in legal
practice this is being lost.
18. There is a time-lag before the effect
of such a trend is manifested. But once it occurs, it is too late
to remedy quickly, and restoration costs at that stage are much
greater than if the trend had been recognised and reversed at
an earlier stage. The Bar's provisional evidence suggests that
the number of pupillages on offer this year in chambers doing
publicly funded work has materially declined. If that is the case,
and if it continues, it reflects the anxiety of such chambers
that their income is insufficient to fund pupillages and that
the future is unpromising. Whatever the reason, it does not bode
well for the future.
INCENTIVES
19. As a matter of record, all pupillages
are now funded at a minimum rate of £10,000 per annum, and
the recent report by the Calvert-Smith Committee found that annually
some £11 million is distributed by way of scholarships to
entrants to the profession. The Bar as a whole makes a substantial
contribution to future practitioners.
20. Incentives must begin with the restoration
of adequate funding. Crucially, it is necessary to maintain reasonable
fee levels, even if demand and thus global cost rise. Confidence
will not be restored otherwise.
21. Incentives could include more funding,
repayment of student loans, and/or guaranteeing a minimum caseload.
This last option has proved successful in relation to immigration
work for the Bar. The modern Bar is a highly specialised profession
in which those specialising in certain areas of work receive almost
the whole of their income from publicly-funded work. In crime,
the non-availability of non-means-tested legal aid, and new provisions
in the Proceeds of Crime Act 2002, have effectively created a
monopoly for the Government in the employment of prosecutors and
defence counsel. This has placed downward pressure upon income
available as, unlike medical consultants, for example, no cross-subsidy
arises from private cases.
Question 4: Is the perception that legal
practitioners are moving out of legally aided work correct?
22. We have already touched on this above
in answer to question 1 and question 3.
The perception is borne out by the evidence:
see the recent SFLA survey.[30]
No doubt the CABx will be furnishing their own evidence.
23. Setting legal aid fees by reference
to "market forces" in publicly-funded work, rather than
assessing payments by reference to what is "reasonable"
on taxation, has been the recent strategy of the Department. Of
course in crime there is no true market because of the monopsonic
(monopoly provider) role of the Government. In some areas of family
work there is a limited market in the sense that practitioners
can act for private clients—usually husbands in opposition
to publicly-funded wives. In the area of public law children's
work there is little true private work. The Funders are likely
to be the LSC, local authorities or the Official Solicitor.
24. This has impacted on the culture that
has always underpinned the Bar's view of itself as a service that
should be available to all litigants, whatever their means, which
was demonstrated by the introduction in 1990 of the "deeming
provision" of the Code of Conduct. This deemed publicly-funded
fees to be reasonable remuneration for the work. Accordingly,
under the "cab-rank" rule barristers could not refuse
to take a case simply because it was legally-aided and might pay
less than if it was privately-funded. The Department's abandonment
of the undertaking to pay "reasonable fees" has driven
the Bar to alter its rules to permit the "market" to
be tested. Publicly funded fees are no longer "deemed"
to be reasonable in family and criminal cases for the purposes
of the "cab-rank" rule.
25. In Family work, where the deeming change
occurred in May 2001, this has led to more experienced practitioners
exercising their commercial judgement in relation to individual
cases and whole categories of work and declining publicly-funded
work.
26. In Crime the change only occurred in
November 2003. Although there is much less scope for successful
practitioners to move to more rewarding privately paid criminal
work, it is an outward manifestation of demoralisation and will
be followed over time by a drift from this work and a fall in
suitable recruits—see answer to Question 3 above.
Question 5: Can the requirement for legal
aid be reduced by the resolution of some legal issues on a more
informal basis, through the Citizen's Advice Bureaux, long distance
services or otherwise?
27. We draw attention to the fact that:
(a) the reforms of Lord Woolf in civil procedure
have produced protocols for pre-action conduct;
(b) the introduction of a compulsory Financial
Dispute Resolution hearing at an early stage of all divorce finance
disputes; and
(c) the introduction of an early Case Management
Hearing in all child care case and much tighter court-led procedure
under the Protocol for Judicial Case Management;
have all had the effect of causing many cases
to settle much earlier than previously.
28. In this regard, it is important to distinguish
between the provision of generalist services, often face to face,
and the access to specialist services which is needed and can
be provided online or by telephone or otherwise remotely.
CABX
29. Good agencies (eg, Shelter, law centres)
staffed by people specialising in housing and consumer law can
be cheaper, more accessible and more efficient than some solicitors
in general practice in those areas. Such agencies should be encouraged.
This does not mean that anything should be done to undermine solicitors
in rural areas providing essential, general, legal services. These
should be assisted by access to specialist providers—not
for profit agencies or the Bar—such as we have highlighted
in answer to Question 2 above in relation to the Specialist Support
pilot or the use of BarDIRECT.
30. Consideration should be given to having
a specified day in the week advertised widely at which a housing
or other specialist practitioner attends and works from a local
solicitor's or CAB office. The local solicitor/CAB can then manage
the matter thereafter, tapping in to the specialist source of
advice where needed. See again the Specialist Support pilot mentioned
above.
31. The Bar is a well-established specialist
source of specialist advice and fits well in such a scheme. See
too what we say below about BarDIRECT and Direct Access.
BARDIRECT AND
DIRECT ACCESS
32. The developments in this area mean that
the Bar is now in a position to work with non-lawyers who are
suitably skilled. It does not mean dealing directly with ordinary
members of the public in publicly funded matters.[31]
Under the new Direct Access provisions the client does not have
to pre-approved by BarDIRECT. The Legal Services Commission (LSC)
will be free to authorise an agency to go directly to the Bar
on behalf of categories of client without the agency being formally
approved by BarDIRECT. The Bar is keen to expand access to the
profession, while maintaining the referral structure. Imaginative
use of this access could be of particular benefit in the public
service area. We must stress that the Bar will in these circumstances
still be acting on a referral basis. The referring agency must
have the necessary ability to take instructions from and provide
client care to the lay client. Neither the LSC nor the Bar Council
would wish otherwise.
PARTNERSHIP INNOVATION
BUDGETS (PIB)
33. PIBs have a similar role to play in
providing local access to general or specialist advice. These
will involve solicitors, the Bar and not for profit agencies.
We assume the LSC will provide up to date details.
Other points: Conditional Fee Agreements and
Contingency Legal Aid Fund
34. There is a particular problem in relation
to the lack of funding for those potential claimants who have
suffered serious personal injuries and who wish to bring a claim.
35. Experience has shown that Conditional
Fee Agreements are not sufficient. While widening access to justice,
the introduction of CFAs was coupled with the withdrawal of legal
aid in personal injury matters and thus a net reduction in access
resulted. At the same time undesirable elements entered the field.
We draw attention to the activities and demise of Claims Direct
and the Accident Group. Serious personal injury is a matter of
real importance to the livelihood of the victim. Not all victims
have the benefit of unions or legal insurance. Some claims are
complex and expensive to manage, and lawyers may well refuse to
undertake them on CFAs for this reason. In limited circumstances
the LSC will pay investigative costs. There are gaps however and
the Bar Council would invite the Committee to look again (at least
in outline) at the idea of a Contingency Legal Aid Fund (CLAF).[32]
We recognise that in current circumstances private seed corn finance
for a CLAF is desirable and, we believe, available.
Question 6: Would a salaried service or the
provision of law centres be a viable solution to lack of provision,
either in areas without sufficient practitioners or elsewhere?
Question 7: What would be the comparative
funding costs of a salaried service?
36. We think it is helpful to address these
two questions together. We start with some general observations.
What follows must be read in the context of what we have to say
above about new methods for the use of the Bar and not for profit
agencies in specialist fields.
37. Many of the questions set out by the
Committee turn on models of delivery of legal services, principally:
the choice between private firms of solicitors; the self-employed
Bar; a salaried service; the voluntary advice sector; or combinations
of those models. Any detailed economic modelling is beyond the
scope of this paper, but some valid points can be made simply.
38. Like many other things in England, the
chambers system operated by the Bar evolved rather than being
designed. However, it carries many advantages, some of them economic.
The ratio between lawyers ("fee earners" would be the
term used in relation to solicitors' firms) and other staff, is
very economical. It would be quite usual to find four barristers
to every one member of support staff. In the context of solicitors'
firms and lawyers in undivided professions in other jurisdictions,
the ratio will often be four staff to every lawyer. This means
that, other things being equal, barristers are an efficient economic
model.
39. The organisation of the Bar maximises
choice and is economical in other ways. The self-employed professional,
operating on "piece work" is a very efficient and cost
effective model. The barrister has no employers' national insurance
cost, no employers' pension provision, no sick pay and no employment
rights. He or she is retained for the work in hand only. Barristers
cannot build capital in a practice. Not only that, he/she is completely
independent and is not reliant on client retention.
40. Such a free market means that a few
people can make very high earnings, although the highest are in
the privately-funded sector. That is not the general case in publicly-funded
work. This is tolerable for the barrister whilst the cost base
remains low and, crucially, whilst the effective earnings levels
do not sink too low.
41. Any significant shift away from the
use of the Bar would cost Government more. At the moment, in various
sectors, the Government is paying more for solicitors to do work
than barristers: work which could be done by either. A good example
of this is family advocacy. There is not a level playing field
in the public funding of the two professions. The perverse effect
of solicitors filling the gaps left by the Bar is that they usually
cost more for the same work, being paid on an hourly rate rather
than a fixed "graduated" fee.
42. A rational approach to the limited allocation
of work and remuneration would be for Government: (1) to recognise
the economy and flexibility of the Bar, as well as its quality;
(2) to remunerate the two professions on an equal basis for work
which could be done by either, and allow a cost-driven market
to determine allocation of the crossover work; (3) to encourage
new models of work—such as the cooperation of the agencies
such as CABx, and legal advice centres, with the Bar, maximising
the use of the BarDIRECT Scheme; (4) to approach with great care
apparent economies of scale, particularly when the saving is at
the centre, for example in staff cost at the LSC. Larger legal
concerns will tend to maximise profit. Access to the high street
firms, provided it is backed by ready access to the Bar, is the
best assurance of availability of advice combined with quality.
43. The original intention underlying the
introduction of the Criminal Defence Service was to fill gaps.
The Bar agrees with this. But it cannot be an efficient and appropriate
replacement for private practice.
44. So the Bar accepts that the concept
of a salaried legal aid service may be a partial solution to the
lack of provision of core general legal services in certain areas,
if this can be shown to be cost-effective and in the public interest.
However, in relation to specialist advice the Bar maintains that
the existence of a strong, independent, referral Bar is both a
guarantor of quality and the most economical use of scarce public
resources for specialist advice and advocacy services. The economic
case for the Bar, with lower overheads and greater flexibility,
is overwhelming.
COST
45. Any assessment of the overall viability
of a scheme for a salaried service must involve a rigorous and
realistic analysis of the costs which such a scheme will involve.
46. Such costs would include the inevitable
and substantial capital costs, if set up from scratch. Further,
the start up costs and capital requirements must be built in and
costings done as if setting up a private or not for profit agency
office in order that realistic estimates are achieved. State-salaried
service is not miraculously cheaper.[33]
47. Such a scheme would also require central
office administration and all the associated costs.
48. The setting up of a salaried legal aid
service may constitute unfair and possibly subsidised competition
for private practitioners and not for profit agencies providing
similar services.
ALTERNATIVES
49. On balance at this stage, and without
having had access to any rigorous cost/benefit analysis which
would need to be conducted in relation to the setting up of a
salaried legal aid scheme, the Bar's present view is that a more
cost-effective and efficient way forward is likely to be to make
the best use available of a combination of the existing network
of providers of relevant services. In order to achieve the same
objectives the LSC should provide funding to these agencies such
as:
(a)
Not for profit generalist agencies such as CABx;
(b)
Not for profit specialist agencies such as Shelter
which have a proven record;
(c)
Private solicitors; and
(d)
The Bar together with specialist agencies such as
Shelter, or Mind, could put in place arrangements to provide specialist
services where needed. As highlighted by the pilot project General
Civil Contract holders and General Help with Casework organisations
can tap in Specialists for varying ranges of advice.
General Council of the Bar of England and Wales
January 2004
27 Legal Services Commission Focus Edition 43 dated
December 2003. Back
28
Approval is given at two levels: organisations with advisors
accredited by the Office of the Immigration Services Commissioner
(OISC) at level two (advice only); and organisations with advisors
accredited by the OISC at level three (for advice and representation
limited to instructing barristers on behalf of clients for advice
and advocacy before (a) adjudicators, (b) Immigration Appeal Tribunal,
(c) Special Immigration Appeal Commission and (d) Immigration
Appellate Authority). Back
29
"The Junior Bar in 2002" by Joanna Shapland and Angela
Sorsby dated October 2003. Back
30
"Report of a Survey of Solicitor Firms with active Family
Law Contracts with the Legal Services Commission in 2002"
by Gwynn Davis, Steven Finch and Lee Barnham, commissioned by
the Solicitors' Family Law Association and the Family Law Bar
Association, dated January 2003. Back
31
A list of agencies who are already approved and who instruct
the Bar directly is available from the Bar Council. Back
32
"A Preliminary Feasibility Study by the Bar Council on a
Contingency Legal Aid Fund" dated Jan 1998. Back
33
Article from the Times by John Cooper dated November 2003; answer
to a parliamentary question in the House of Commons, 22 January
2004, Edward Garnier QC MP to David Lammy MP. Back
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