House of Commons - Justice Committee

Legal Aid Reform - Justice Committee Contents

Memorandum submitted by the General Council of the Bar

INTRODUCTION

1. On Wednesday, 10 December 2008 at 10.30 am the Justice Committee will take evidence from Lord Bach, Parliamentary Under-Secretary of State at the Ministry of Justice on progress with Legal Aid reform. This briefing paper summarises the position of the Bar Council (the governing body of the Bar of England and Wales, representing 15,000 barristers in self-employed and employed practice) on legal aid reform with particular reference to key issues in criminal and family cases.

CONTEXT

2. For many people access to justice is available, to a very large extent, through the legal aid system. This has undergone significant change over the past few years, which is likely to continue for some time to come. The Government's review of Legal Aid, chaired by Lord Carter,[5] recommended new arrangements for the procurement of legal aid in England and Wales. These recommendations, which were described by the Constitutional Affairs Committee as "radical",[6] included a move towards fixed pricing, driven by best value competition, as well as ongoing peer review to ensure a minimum quality standard for all legal aid practitioners.

3. The Constitutional Affairs Committee, to which the Bar Council submitted written as well as oral evidence,[7] reported[8] that no detailed plans had been made public about how best value tendering would work, that there had been a complete lack of reliable research into the potential effects of competitive tendering on legal aid suppliers and clients and that there was a case for piloting their proposals. The Committee were concerned about the impact of the proposals on the quality of legal advice, especially in areas of specialist expertise, and about the effect of the reforms on black and minority ethnic firms and their clients, who could be disproportionately disadvantaged by the proposals.

4. The Bar Council recognises the need to ensure that public funds are prudently spent. It has worked hard with the Government, Lord Carter's Review and the Legal Services Commission (LSC) to this end. The Bar's principal concern is to ensure that high quality barristers and solicitors are attracted into and can develop successful careers in publicly funded work. The Bar Council has consistently emphasised the need to ensure that arrangements are put in place which reward talent and efficiency, and encourage innovation in the public interest. The Bar is concerned that within acceptable expenditure constraints public funding arrangements do not cause vulnerable members of society to be under-represented. It is vital that any future proposals to reform legal aid funding are supported by a wide-ranging equality impact assessment.

5. In May 2008 the Bar Council published a discussion paper[9] to prompt further discussion about the need to provide legal aid for the most vulnerable in society. The paper argued that the Government's attempts to carry out a fundamental review of legal aid had lost their way and that, without significant changes in the justice system, those members of society it is designed to protect, would be put at risk.

6. The key issues are Very High Cost Cases (VHCCs) and Family Graduated Fees. These are considered below.

VHCCS

7. The LSC has proposed that the arrangements for VHCCs—cases which are expected to last 41 days or more at trial—should be altered. These are the most complex and lengthy criminal cases and as such it is in the public interest that the most experienced and expert advocates are involved.

8. The LSC wished to establish a country-wide panel of specialists from which advocates would be selected to conduct all VHCCs. However only 110 self-employed barristers signed up to the final contract, only three of whom are QCs.

9. At the request of the Secretary of State for Justice, the Bar Council has been and continues to work with the LSC, the Ministry of Justice, and the Law Society to develop a more robust scheme which properly remunerates barristers and solicitors for the work they actually do. This should liberate them from the micro-management of the present system and enhance their professional judgment to manage these complex cases in the most efficient way.

10. The Bar Council's objective is a scheme of remuneration which rewards (and incentivises) practitioners who deal with these very complex and burdensome cases efficiently and expeditiously; there should be no perverse incentives to drag them out at public expense.

11. The Bar Council welcomed the Ministry of Justice's announcement on 24 October 2008 about the progress towards a new scheme of graduated fees in VHCCs with a view to introducing an improved scheme by 1 July 2009. The Bar Council welcomes moving away from hourly rates of pay in these cases since they reward the least efficient and are inflationary. It hopes that the new scheme will begin to attract quality advocates back into this area of practice.

12. The Bar Council recognises that a significant percentage of the legal aid budget (approximately £120 million a year from a total of £2 billion) is spent on VHCCs which account for only 0.1% of Crown Court cases, but defendants in these difficult cases need appropriate representation commensurate with the gravity of the charges with which they are faced and within the budgetary requirements for legal aid. By careful examination of the Legal Aid budget, the Bar Council has, with the Ministry of Justice, found ways of saving money so as to make a modest interim improvement for VHCC cases (though still below 2004 rates) pending the introduction of a new scheme.

13. The Bar Council was pleased that the Justice Secretary and Lord Chancellor recognised[10] the contribution of barristers who had appeared in VHCCs without payment for their co-operation in ensuring that major trials were not disrupted during the course of the negotiations.

FAMILY GRADUATED FEES

14. Barristers working in family law represent some of the most vulnerable people in society. These barristers provide an essential public service in cases involving very difficult decisions (with potentially profound consequences) about for example whether children should go into care, whether children should be permanently separated from their family, what access children should have to their parents, or what happens to families when relationships break down.

15. The LSC stated in 2007 that it wished to save around £13 million in fees from this area over two years and is currently consulting on proposals to achieve the cut backs.

16. The Bar Council and a working group of the Family Law Bar Association (FLBA),[11] the specialist bar association which represents over 2,000 family barristers, prepared a response to the LSC's consultation which reflects the real world experience of family practitioners at the Bar.[12] The rationale for a £13 million reduction in remuneration is not clear, particularly given the context of the increase in social and family breakdown placing ever more demands upon the family justice system. As the FLBA response said, "it is astounding that the proposed review does not look beyond immediate savings to the LSC's budget to the expense of dealing with damaged adults and children to other public services in due course."[13] Plainly costs must be controlled. But cuts in the name of saving money must be justified on public interest grounds if the needy in ultimate receipt of legal services are not to be adversely affected. Otherwise the cuts will be simply arbitrary and unprincipled.

17. The FLBA found that underfunding is discouraging talented advocates, deterring young aspirants (the next generation of advocates), reducing the quality of representation, increasing discrimination within the Bar and in promotion to the judiciary, increasing the number of litigants in person and provoking Article 6 challenges. This is not just a problem affecting barristers. The FLBA found evidence of the problems facing solicitors, an increasing number of whom are ceasing to practise in this field.

18. In the journal of the Family Law Bar Association Family Affairs, Sir Mark Potter, President of the Family Division, recently commented as follows:

19. More recently, the President has commented that the Government's drive to save costs is placing the family court system under increasing strain and threatening access to justice in family courts.[15] Recouping the full cost of court fees would bear down particularly harshly on those vulnerable families and parties who are above the level of exemption but who cannot afford legal fees. He was quoted, before the case of Baby P was reported, as saying:

20. In April 2008, the LSC published their Civil Route Map[17] which envisaged replacing the Family Graduated Fees Scheme with Best Value Tendering, with trials in 2010-11 and roll-out in 2013. A consultation paper on Best Value Tendering for criminal work which was published in December 2007 had already been rejected by the Law Society as "not an appropriate method for procuring criminal defence services, or any other form of legal aid provision"[18] and by the Bar Council, who observed:

Contracting for Indigent Defense Services

The FLBA, by contrast, have proposed restructuring the Family Graduated Fee Scheme to ensure that payment matches the complexity of the work, as measured by objectively verifiable criteria, and achieves greater cost control than at present.[20]

CONCLUSION

21. Next year will be the 60th anniversary of the Legal Aid Act which introduced a fully funded system providing legal support for defendants and litigants. Along with the National Health Service, legal aid was one of the twin pillars of the social welfare policies of post-war Labour Governments. The 60th anniversary year should be a cause for celebration but to judge from recent ministerial pronouncements, legal aid often seems to be a cause for lament. As Lord Carter recognised, the escalation in legal aid expenditure since the 1960s has been caused by a move from a fixed-fee system to hourly rates—which the Bar has consistently argued against in favour of graduated payments—and, secondly, by a move from a system paid for by local funds to a taxpayer-funded system determined nationally. In recent years there has been a disproportionate growth in criminal legal aid expenditure compared with legal advice and representation in civil and family matters, and as the quotations referred to above indicate, the signs of strain are beginning to show. Over the period from 1997 to 2004-05, criminal legal aid has increased by 37% in real terms to about £1.2 billion, while civil legal aid decreased by 24%, to around £680 million with the result that legal aid has become increasingly focused on criminal issues at the expense of civil matters.

22. Ministers often state[21] that the UK now spends £38 per head on all legal aid (criminal and civil) compared with between £3 and £4 per head in France and Germany, and around £8 per head in New Zealand and the Republic of Ireland. What is often overlooked is that, since 1997, the number of criminal offences has risen inexorably (which has also led to larger and more expensive terrorism trials). The UK also has one of the largest prison populations per head of the population in the developed world and a high incidence of social and family breakdown, with which the legal system is, inextricably, involved. Furthermore, our legal system depends heavily on the work of lawyers when account is taken of the comparatively lower other costs (such as court costs), the real cost of bringing cases through our criminal courts is actually lower than in other countries.

December 2008