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 VHCCscases which are expected to last 41 days or more
at trialshould 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:
Unless there is an acknowledgment of the nature
and extent of the tasks which are undertaken by family lawyers
and that a reasonable rate of remuneration is required for these
tasks, I have the utmost concern for the future quality of family
justice.[14]
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:
I know of no other jurisdiction worldwide which
takes the view that the policy of full cost recovery is either
justifiable or desirable in an area essentially concerned with
matters of social welfare following the breakdown of relationships.[16]
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:
The experience of competitive tendering for criminal
defence services in the United States of America (the US Department
of Justice special report entitled Contracting for Indigent
Defense Services dated April 2000) is that BVT drove down
standards and lowered the quality of representation.[19]
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 rateswhich the Bar has consistently
argued against in favour of graduated paymentsand, 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
5 Legal Aid: A market-based approach to reform
(2006). Back
6
Implementation of the Carter Review of Legal Aid (2007,
Report, p 3). Back
7
(2007) Evidence, pp 113-121 and 11-17, respectively. Back
8
(2007) Report, p 3. Back
9
Legal Aid and the Public Interest: Towards an effective public-private
partnership (2008). Back
10
Ministry of Justice News Release 131/08. Back
11
http://www.flba.co.uk/ Back
12
http://www.barcouncil.org.uk/news/latest/235.html Back
13
Reforming the Legal Aid Family Barrister Fee Scheme: Response
of the FLBA, http://www.barcouncil.org.uk/consultations/responsestoconsultationpapers/
at p 61. Back
14
Family Matters (No 43, 2008) at p 8. Back
15
The Times, 23 October 2008. Back
16
Ibid. Back
17
Civil Legal Aid Contracts: The Next Five Years, April 2008,
http://www.legalservices.gov.uk/docs/civil_contracting/civil_route_map_100408.pdf Back
18
Legal Services Commission Consultation on Best Value Tendering
on Criminal Defence Services: The Law Society's Response,
March 2008, p 3. Back
19
Best Value Tendering of Criminal Defence Services: The Bar
Council's Response to the Legal Services Commission's Consultation
Paper of 10 December 2007, p 1. http://www.barcouncil.org.uk/consultations/responsestoconsultationpapers/ Back
20
Reforming the Legal Aid Family Barrister Fee Scheme: Response
of the FLBA, http://www.barcouncil.org.uk/consultations/responsestoconsultationpapers/
pages 48ff. Back
21
See, for example, Lord Bach's speech to the Legal Aid Practitioners'
Annual Conference on 10 October 2008: http://www.justice.gov.uk/news/sp101008a.htm Back
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