6.Legal professionals have adapted impressively quickly to working from home and holding and attending hearings remotely, but this can be difficult. Lord Burnett of Maldon, the Lord Chief Justice, told us that “the quality of the kit matters a great deal. If you are doing this sort of encounter with a laptop, you are hunched over it, you are cramped and you do not have room for paper. If you are doing a full video hearing, you need two screens: one you can put papers on and the other so you can see people.”
7.On 1 May, the Rt Hon Sir Terence Etherton, the Master of the Rolls, commissioned a rapid review of the impact of Covid-19 measures on the civil justice system. The results were published on 5 June. Lawyers who responded were broadly satisfied with remote hearings although they had some concerns:
“[they] found remote hearings to be more tiring to participate in than physical hearings, particularly those that proceeded by video. Findings also suggest that remote hearings may not necessarily be cheaper to participate in, which may be counter to assumptions about relative costs being lower.”
8.On 24 March, Robert Buckland told us that there is
“an issue with regard to legal conferences and lawyer/client interviews… I know from my own experience that the conference with counsel or the client’s ability to give instructions in a confidential way is absolutely essential. It is a legal right, and it can and does lead to greater efficiencies in the system...”
9.This concern was repeated by John Bache, Chair of the Magistrates Association: “One particular problem that concerns us is the ability of the defendant to get confidential advice from their advocate.”
10.The Equality and Human Rights Commission has said that the use of video hearings can significantly hinder communication and understanding for people with learning disabilities, autism spectrum disorders and mental health conditions. In its interim report on inclusion the Commission says:
“Almost all the criminal justice professionals in England and Wales who we interviewed felt that use of video hearings does not enable defendants or accused people to participate effectively, and reduces opportunities to identify if they have a cognitive impairment, mental health condition and / or neuro-diverse condition.”
Similar issues were raised with us by Transform Justice.
11.Organisations and individuals with experience of working with and advocating for court users who may be considered vulnerable are concerned that communication with clients during hearings “relied on lay parties having access to multiple devices and good standards of written comprehension.” We also received evidence about limited availability of video links for lawyers to communicate with clients in prison, since visits in person were cancelled.
12.Susan Acland-Hood, Chief Executive of HM Courts and Tribunals Service (HMCTS), told us that progress was being made to implement a cloud video platform that provides for confidential communications with clients. On 23 June she said that “Getting better video technology rolled out is well under way in Crown and magistrates courts, and the full rollout starts next week in the civil and family courts.” There have been positive developments in providing online solutions to providing court services, but pending full roll out of HMCTS’s cloud video platform, we recommend that the Ministry of Justice sets out the steps it is taking to ensure that lay parties to hearings have access to the technology they need so that they can communicate well, and confidentially, with their lawyers. We also recommend that the Ministry of Justice reviews how well remote hearings have worked for all participants in all jurisdictions before rolling them out further.
13.All those attending court during this period deserve our praise. As the Crown Prosecution Service Inspectorate has pointed out “The court estate was not built to enable some of the new requirements of social distancing; this meant that those attending courts were, as with other key workers, putting themselves in danger.”
14.In addition to the difficulties raised by the estate itself there were early problems with shortages of soap at some courts and with some security processes. On 24 March, Ms Acland-Hood told us “We have asked staff members in the court to check regularly on the provision of soap and paper towels in bathrooms, which was an earlier issue. We have reissued guidance to security staff. There were some issues arising in relation to security search, where security guards were putting hands in bags.”
15.Provisional Legal Aid statistics give an indication of the scale of the reduction in legally aided work as a result of the coronavirus restrictions:
“…on the criminal legal aid side we entered the Covid period in a perilous state. There had been a huge drop in the number of providers anyway. Some 36% were lost between 2010 and 2018. There was some 29% reduction in the number of duty solicitors available from 2016 to 2019 ... That is how we entered this lockdown period.”
17.The Joint Committee on Human Rights concluded, in July 2018, that
“the pressures caused by the reforms to legal aid are having a severe impact on legal aid professionals, damaging morale and undermining the legal profession’s ability to undertake legal aid work, leading to consequent grave concerns for access to justice, the rule of law and enforcement of human rights in the UK.”
18.The Justice Committee had concluded in its July 2018 Criminal Legal Aid report, that “there is compelling evidence of the fragility of the Criminal Bar and criminal defence solicitors’ firms.”
19.The Bar Council’s survey of all barristers in England and Wales (published 27 April 2020) concluded that:
“Work and the ability to earn money has dramatically disappeared for many barristers, with over half fearing for their future in the profession. Those barristers from more diverse backgrounds are disproportionately affected. The young, the publicly funded and especially the criminal Bar - the most diverse parts of the Bar - are unsustainable without financial aid from the Government, even in the short term”, and
“Diversity and social mobility at the Bar are likely to decline as a result of the crisis. Black, Asian and Minority Ethnic and state-educated barristers are doubly hit—by being more likely (i) to be in publicly funded work and (ii) to face greater financial pressures.”
20.The Young Legal Aid Lawyers group echoed these concerns and asked:
“The legal aid system was already in the midst of a sustainability and social mobility crisis. The Coronavirus is compounding these issues to devastating effect. How will the government protect the most vulnerable members of our profession and promote social mobility to ensure that legal aid practice becomes a viable career choice?”
21.It is important that the legal professions properly represent the society they serve, not least because they form a large part of the pool from which the Judiciary is drawn. The MOJ should set out what it will do to make sure that coronavirus restrictions on the justice system do not disproportionately affect the incomes of Black, Asian and minority ethnic or state-educated legal professionals, nor reduce their ability or desire to enter and work in the courts and tribunals system.
“56% of all barristers cannot survive six months in practice, which takes us from the date of the survey to October this year; 69% of publicly funded barristers cannot survive six months, and almost 75% of young barristers—those in practice for less than seven years—will not survive six months. That is not just about the profession now; it is about the profession for the future.”
23.Small high street firms are particularly at risk from the effects of coronavirus restrictions. The Law Society published the results of its survey of small high street firms on 1 May 2020. The Law Society Gazette reported:
“Some 63% of sole practitioners and 71% of firms with four partners or fewer said [cash flow pressures and lower fee income] could put them out of business by the autumn. As a worst-case scenario that would equate to over 5,000 firms ceasing to trade, if the 774 respondents are a representative sample of the sector.”
24.Simon Davis, President of the Law Society, told us:
“What we need in the present position is to ensure that something is done right now that enables legal aid practitioners across the piece to hang in there, in the hope that there will be further work in the future, and in the fond hope that the sustainability review that is taking place is accelerated and concrete measures are taken fast within that to ensure long-term sustainability.”
The Legal Aid Practitioners Group also asked that the Ministry of Justice anticipates the likely collapse of providers rather than reacting after the event.
“Funding for social welfare legal assistance has always come primarily from public sources … as clients are too disadvantaged to pay for services. … The stream of current legal aid work has reduced to a trickle in both face-to-face and telephone-based contracts.
“… if lost earnings are not replaced soon, Law Centres stand to lose £3m in earned income within six months and, having used up their already scant reserves, the half of them most reliant on legal aid income would face closure. Law Centres are not alone: the entire not-for-profit legal advice and rights sector is at risk right now.”
26.Rt Hon. Steve Barclay MP, Chief Secretary to the Treasury, wrote to us setting out the general financial support for business that is also available to legal professionals. This support fall into two kinds: cashflow support, such as low-cost business loans and deferred VAT payments, and support that provides extra income or reduces costs, such as the furlough scheme and the Self-Employed Income Support Scheme. He also mentioned the £370 million announced for all small and medium-sized charities, which some not-for-profit legal services providers may be able to apply for.
27.The furlough scheme has been very useful, with both solicitors’ firms and barristers’ chambers using it to reduce staff costs. We heard that the loan schemes were less helpful, particularly for small high street firms. Simon Davis told us:
“One of the more problematic areas of the package is in relation to loans. Our research shows a low take-up of loans, particularly in the [legal aid] sector… We are talking about firms that are in very serious financial straits and already have heavy borrowing. These are loans that will have to be repaid by people who have no idea whether they are going to be there to repay them or whether the work is going to be there to finance it.”
28.We were told that the Self-Employed Income Support Scheme has two features that limit its usefulness. First, it is not available to those who did not complete a tax return for 2018–19. This is a particular problem for barristers just starting out. The second is that it has a cliff-edge so is not available to those with profits of £50,001 or above. Finally, Amanda Pinto, Simon Davis and Bill Waddington each made the case for extending the business rate relief scheme to the legal professions.
29.The Legal Aid Agency has made changes to help the legal professions. For example, it has made it easier to claim interim and hardship payments, aligned some fees for remote work with those for in-person work, and halted pursuit of outstanding debts owed to the Legal Aid Agency. Amanda Pinto told us “I am happy to say that the CPS and the Legal Aid Agency have done sterling work in reducing the backlog in paying their fees.”
30.Parliamentary Under-Secretary of State for legal aid at the Ministry of Justice, Alex Chalk, gave us an example of one of the practical steps the Legal Aid Agency has made to support legal service providers, which was to allow for reduced office hours. There are many more examples of changes to legal aid procedural and contractual requirements. We heard from Elspeth Thomas of Resolution:
“The Legal Aid Agency has been working extremely well with the profession during this time. There have been some very constructive talks, perhaps the most constructive I have seen in my time being involved with them…While there has been a lot of work done at speed to make sure the rules are adapted to fit remote working, it is important for the profession that we have confidence that, when it actually comes to those bills being paid several months down the line, they will be, and we are not going to run into difficulties with procedures not having been followed when we were in the lockdown situation.”
31.Bill Waddington told us:
“the legal aid proposals for interim and hardship payments, of course it helps, but it means we are just being paid now but getting nothing later. It is simply moving the crunch point.”
32.The support provided by the Government is welcome, but it cannot compensate for the significant drop-off in the amount of work being done and remove the risk of a collapse in legal services providers.
5 The Civil Justice Council and the Legal Education Foundation, , May 2020, p 9
8 Equality and Human Rights Commission, Inclusive justice: a system designed for all: Interim Findings, April 2020, p 9
9 , June 2020, p 2
10 The Civil Justice Council and the Legal Education Foundation, The impact of COVID-19 measures on the civil justice system: Report and recommendations, May 2020, p 10
11 , June 2020
15 taken on the 24 March 2020, HC (2019–21) 225, Q5
16 Ministry of Justice, Legal Aid Agency, Legal Aid Statistics quarterly, England and Wales, January to March 2020, June 2020, pp 20–21. The figures are for April 2020 compared to the monthly average between January and March 2019
20 Bar Council, Bar Survey Summary Findings April 2020, April 2020, p 2. The survey was sent to all 17,000 barristers in England and Wales. Some 25% of the self-employed Bar responded by the deadline of 13 April 2020.
22 , June 2020, p 2
24 High-street firms under immediate threat, Law Society, , 1 May 2020. The results are based on the 774 responses received (10% of small firms).
26 Q 101
27 , June 2020, p 2
28 , June 2020, p 1
29 , June 2020, p 2
30 , 5 May 2020
31 Qq95 [Caroline Goodwin], Q97 [Simon Davis]
34 Q95 [Amanda Pinto]
35 Qq97, 105
36 Qq131, 136
38 Support package for legal providers, , 3 April 2020
41 Legal Aid Agency, Coronavirus (COVID-19): Legal Aid Agency contingency response, accessed 30 June 2020
Published: 3 August 2020