There is a duty on all of us who are concerned about the maintenance of a balanced and accessible justice system, to argue the case for the reform and enhancement of the publicly funded legal services sector. That is in the public interest, and in the interests of justice.

A case of whither or wither legal aid?

Earlier this year, the Government launched a Fundamental Legal Aid Review. Rather like a mini version of the asylum issue, legal aid has become for Ministers one of those issues on which they want constantly to appear to be tough.

Egged on, or goaded, by tabloid, middle market, and even some broadsheet newspapers, those responsible for policy on publicly funded legally services appear to want a climate of constant crack-down.

Of course speculative claimants and greedy lawyers are said to be the villains of this piece.

But it is not as simple as that. Most Ministers, with their essentially Bevanite roots, still want to speak of legal aid as an essential public service. There still rests some residual awareness that legal aid – a public/private partnership between public service lawyers and the Government – is fundamentally a good thing. It plays a role in the canon of safeguards that ensure we live in a humane and just society.

Will the Fundamental Legal Aid Review resolve this conflict? At this stage, the omens are not all that good. The tone of the launch was not positive. The Government quickly followed up its inauguration with some fairly harsh proposals, covering the full swathe of civil legal aid. Has it prejudged the issue?

There is a duty on all of us who are concerned about the maintenance of a balanced and accessible justice system, to argue the case for the reform and enhancement of the publicly funded legal services sector. That is in the public interest, and in the interests of justice.

Stephen Irwin QC
London, October 2004

Establishing the Bar’s contribution to the public interest

The independent Bar is a highly ethical, closely and efficiently regulated, high quality provider of specialist advocacy and advice services. The Bar makes an important contribution to the operation of the justice system. In criminal cases, its members prosecute and defend in equal measure, and in presenting cases to judges and juries barristers fulfil an important part of the function of the courts.

The existence of a large pool of independent specialist advocates provides a flexibility, without which the courts would be unable to function effectively. In the main barristers are self-employed and organise themselves in chambers. Contrary to stereotype, this ensures a low cost base, which benefits the public interest and the public purse.

Many barristers undertake publicly-funded work at rates substantially less than those that can be achieved in the private market. This reflects a sense of public service and commitment to the interests of justice. We regard them as public service lawyers.

Over 1,000 barristers provide their services free to people in need, through the Bar Pro Bono Unit, originally established by the Attorney General Lord Goldsmith QC. They work with the advice bureau and law centre movement to assist individuals without means and in distress.

The Fundamental Legal Aid Review

As mentioned in the introduction, at the insistence of The Treasury, the Department for Constitutional Affairs (DCA) is conducting a Fundamental Legal Aid Review. The review will be carried out within the Department for Constitutional Affairs, working closely with the Legal Services Commission. The review will report to Ministers early next year.

The Prime Minister's Strategy Unit is also providing assistance. The review will also involve other Government departments, including the Home Office and the Crown Prosecution Service, and a range of external stakeholders, including the judiciary and the legal professions.

We welcome this. Those in Government need to rediscover the point of legal aid: it is an important part of a civilised state, not just an issue for lawyers. Access to justice is not possible for the poor without legal aid. Without access to justice for the most vulnerable, the system of justice will be debased. We should be proud of legal aid, rather than hesitant about it.

According to the Government, the Fundamental Legal Aid Review will look at the long-term future of the system, focussing on how best to provide publicly funded legal services to those who need them.

The review is to address:

? How legal aid can provide services which meet the needs of society.
? How it can be best used to help people improve their lives and prevent social exclusion.
? How legal processes, and innovative ways of delivering legal services, can be developed to ensure the best use of taxpayers' money.

So far so good. But with a hint of tabloid menace, the Government, in a press release, said the review would ‘look to identify underlying processes and procedures, which increase the work of lawyers, but do little to advance the fairness or effectiveness of the justice system’. The implication is all lawyers - no, all public service lawyers - are accused and convicted of seeking to ‘play the system’ to their advantage, at a cost to the taxpayer and contrary to their professional codes, the interests of the client and of justice itself.

This is insulting to the many barristers I represent. Especially in short trials, they work tirelessly for their clients for little reward. Yes, bigger, more complex cases, lasting longer, are better paid. But often these are subject to fixed cost contracts, set by the Legal Services Commission. The plain fact is that the Bar provides expertise and excellent value for money in public service.

As if to emphasise the contradictions at the heart of the Government’s thinking in this area, the Minister, David Lammy, went on to say:

‘Legal aid is a vital public service. It helps to ensure a fair and effective criminal justice system. It also promotes access to justice and last year alone helped one million people address their family, housing, debt, welfare and other problems. In many cases, it helps prevent social exclusion. We want to examine how in the longer term we can better focus legal aid expenditure and enhance the benefits gained from it.’

He added: ‘We want to have a constructive dialogue with the professions, barristers and solicitors. This is not a review of current remuneration rates. It is not about crude cuts. It is about the longer term, about addressing people's needs and about delivering legal aid so that it provides a value for money service making the justice system fair, effective and accessible to all.’

What is clear is that the Government has not yet fully understood what has caused the growth in the legal aid budget. The major growth has come from legislation and procedural change driven by other Departments, not least the Home Office. The Department must do more to identify the main cost drivers of criminal defence expenditure. This would enable it to develop longer-term initiatives to target the causes of growing costs, rather than just short-term policies designed to tackle the symptoms.

An open and shut case?

Soon after the review's launch, the Department for Constitutional Affairs took the further step of publishing a consultation paper on the future of civil legal aid - at least half of the territory covered by the FLAR.

It was the same old mixed message. David Lammy, in the 22 July launch announcement, said funds should remain available 'for the most deserving cases and for those who face social exclusion'. This misses the point that failure to provide assistance in a civil case can itself cause social exclusion for the unaided party. And then comes David Lammy, bad cop, who in the same breath warns: 'We also have to clamp down on expenditure. The legal aid budget is necessarily limited and we want those resources spent in the most effective way possible and those in greatest need.'

The paper actually proposes cuts of £41million through:

? Stricter limits on eligibility

? A very wide-ranging curb on legal aid in family cases, both children-related and divorce

? Severe limits on legal aid for those making claims for injuries inflicted on them by the NHS or the police

How can it be right one day to launch a fundamental review of a key policy area, supposedly with an open mind, and the next day to put out firm proposals to curb access to justice? It does not make sense.

Another way

As the Constitutional Affairs Select Committee concluded in its recent report, Civil Legal Aid: adequacy of provision, the Government needs to take a more joined-up approach to legal aid budgeting, because many of the drivers of criminal defence spending fall outside the DCA's remit. The Committee confirmed those findings in July 2004, in its report on the Draft Criminal Defence Service Bill

This lack of understanding on the part of the DCA has allowed it to take the blame in Whitehall for poor budgetary control, leaving the lawyers to be blamed in public. It is the socially excluded and the vulnerable, who will end up paying the price. We know that the DCA and Legal Services Commission are now addressing this issue We welcome that. It is not before time.

Legal aid spending saves money – shock!

As yet, the Government has not begun to address the benefits, social, fiscal and economic, which flow from a good legal aid system. How much is saved from the NHS budget, if the law enforces reasonable housing conditions? What is the saving in the prisons if domestic violence is addressed early rather that late? Only the Government has the resources to reach sensible estimates on this question. It seems clear that they have not even begun to do this.

The FLAR will be incomplete if it does not encompass this. Legal aid will be let down, along with those dedicated public service lawyers – barristers and solicitors - who work in this sector.

Another result of the attack on the image of legal aid is that confidence in publicly funded law as a career is at a low. This applies to solicitors and barristers alike. Government can only address these problems with a commitment to keep remuneration at a reasonable level. The commitment needs to be explicitly long term. Law students, young lawyers and many established lawyers have a choice. They can choose more lucrative, privately - funded areas of work. Many would prefer the satisfaction of public service law, even if that is less well paid, but not if they cannot be confident of even reasonable remuneration levels long term. Without a public commitment soon, publicly funded law will meet a crisis of recruitment and will decline into a third rate service. If Government does not give the necessary commitment, it will mean they are indifferent to such a decline.

The Constitutional Affairs Committee in its report on civil legal aid painted a clear picture of a depressed sector, where professional morale is low and recruitment is at risk.

The report noted: ‘There is a significant danger that the system will not survive if urgent efforts are not made to enable solicitors' firms to recruit young entrants into legal aid work. There is widespread evidence of serious recruitment and retention problems. The initiatives made by the LSC to provide some support to students who wish to go into legal aid work (and stay there) are to be welcomed. We fear that this may be insufficient to cope with the immense problems surrounding student debt.’

The report goes on to note that law firms do much to accommodate less valuable publicly funded work within their practices: ‘The system relies on the dedication and goodwill of solicitors, who are committed to the service which they provide. They need more recognition for the work that they do, which is underpaid in comparison to other areas of the law. The firms which do legal aid work subsidise the system in a way, which is not sufficiently quantified by Government or acknowledged. Every change to the system of administration of legal aid involves firms in considerable expense on business systems to cope with the changes. Much of this is taken for granted.’

As we have seen, the Government wants the FLAR to look at alternative forms of provision. But the Committee noted in its report: ‘Any new system must provide the same or better quality, access and value for money as the present system of delivery through private practice firms’, adding: ‘There are human rights obligations in relation to civil cases. There is significant evidence of unmet need for legal services by many in society-often among those who are most vulnerable. Too much has been squeezed out of the CLS budget as a result of the twin pressures of criminal and asylum work. Civil Legal Aid has become the Cinderella of the Government's services to address social exclusion and poverty. The highly desirable extension of provision and services has been possible only at the expense of cutting back on eligibility, scope and remuneration. This process has now gone too far.’

We agree with the thrust of the Committee’s findings, and the Government would do well to note what has been said.

Closing the ‘justice gap’

We have raised for some time the problems that have arisen in the wake of the abolition of most civil legal aid by the Access to Justice Act 1999. Both this Government and the previous Government have said that they want to close what we would call 'the justice gap'. This has many sides, for example:

? previously unpunished offences should be brought to trial
? those who have been unable to get civil redress should be able to work through a deregulated legal services framework
? the law should be used to protect vulnerable individuals and communities, for example in family law and in relation to anti-social behaviour, to protect vulnerable individuals and communities

No one has made the connection that closing the Justice Gap requires access to justice, requires legal aid, to make it a reality, not a slogan. Legal aid continues with its 'Cinderella status', mauled by the press, and always ripe for pruning by the Treasury.

Civil legal aid dwindles

The budget for civil legal aid is always eaten by the burgeoning cost of criminal trials and asylum cases, the drivers of which, as has been mentioned, are legislative, economic and societal. Little is left in the ring-fenced pot for important areas of social and welfare law advice on issues like housing, debt and employment. Ironically, these gaps are often plugged by barristers and solicitors working free under the legal profession’s many and varied pro bono initiatives.

We still believe that there are real problems associated with the Access to Justice Act legacy, and we believe the time has come for the Government to broaden its fundamental review of legal aid (FLAR). The review should take in its overall policy on access to justice by conducting a review of the 1999 Act.

It is widely accepted that Conditional Fee Agreements have proved to be no replacement for civil legal aid. In particular, difficult but deserving cases often find it hard to attract the sort of support they need. “No win, no fee” legislation has also hastened the emergence of aggressive claims handlers and sharp operators chasing a fast buck, in the unregulated PI claims sector. We are concerned that Sir David Clementi's consultation paper on the regulatory framework for legal services has made no clear proposals to plug this and other important regulatory gaps.

The 1999 Act also saw the setting up of the Community Legal Service. Recent independent research for the Government has shown that the CLS has proved a poor replacement for civil legal aid (Independent Review of the Community Legal Service April 2004).

The Independent Review spoke of a 'lack of overall accountability for the CLS and no clear dedicated leader driving change', and of 'the need to establish a clear evidence base to demonstrate that the CLS delivers effective and cost-effective advice provision'. There was no real proof that the CLS was tackling social exclusion.

The report added: 'The CLS budget appears vulnerable to policy changes, particularly those made by other government departments, with the civil legal budget being eroded by the increasing demands of the criminal legal services agenda in particular'.

Contracting and quality assurance are criticised as costly and bureaucratic. There was a 'dislocation' between needs analysis and its translation into funding. All in all the report makes grim reading for the CLS.

Let us remember here that nationalisation along CLS lines is one of the models FLAR may consider as an alternative delivery model for legal aid. The evidence is that it does not work. It is no replacement for public-private partnerships between the Government and independent lawyers.

Just deserts?

It is now an established matter of policy concern that there are big geographical gaps in the provision of publicly funded law, and that we are witnessing the emergence of legal aid ‘deserts’, as attested to by witnesses to the Constitutional Affairs Select Committee's inquiry into adequacy of civil legal aid provision.

David Harker, Chief Executive of the Citizens' Advice Bureaux, told the committee in March that there were real gaps in provision. He said: 'We have gone head-to-head with the Legal Services Commission since the publication of our report (on legal aid deserts), and they have said that there are no deserts. I think it is beholden on them to put in the public domain any definitive information that would help us understanding the exact dynamics of what is happening here.’

Supply and demand in public service law

Finally, it will not have escaped the attention of most of those with an interest in this area of policy that there are real problems with the pay rates and contractual conditions of solicitors and barristers doing publicly funded work.

There is now a body of academic research to show that many barristers are walking away from legal aid, and that a shortage of suitable advocates is the result.

The Department for Constitutional Affairs' very own Market analysis of legal aided services provided by solicitors and barristers [Frontier Economics April 2004] found that 37% of solicitors reported at least one occasion in the previous year when they had been unable to secure a barrister. This percentage was highest for solicitors undertaking family law.

The report said: 'Solicitors reported the implication of being unable to secure a barrister as either a detriment to the advice received by the client or an unacceptable delay on a proportion of these cases... These responses to the survey indicate that there may be a degree of under-supply (of barristers)'.

It went on: 'The study has not revealed strong evidence of excess supply (of barristers) as was the case for solicitors. There may therefore be no need to change the procurement method in order to reduce any instances of "over-payment"'.

This government study is also echoed by research evidence by Bristol University on the lack of family barristers to do cases. This was actually found to have the result that, in many cases, solicitors themselves did the work of the barrister, at a higher cost to the taxpayer because of the different methods of remunerating solicitors, namely by the hour rather than on a fixed cost basis as with the barrister.

Just how much do these barristers get paid?

The Family Law Bar Association's Survey of the Family Bar in May 2002 found that 10% of cases were found to be paid at less than £19.22 per hour; 20% of cases at less that £26.13 per hour; 30% of cases at less than £33.09 per hour and 40% of cases at less than £40.30 per hour.

Looking at different categories of work makes the low rates even clearer: 10% of ancillary relief cases were found to be paid at less that £13.05 per hour; 20% of cases in that category at less than £18.22 per hour; 30% at less than £24 per hour; and 40% at less than £28.76 an hour.

Such relatively poor rates of pay are not confined to family work. As part of the criminal graduated fees scheme Offence Group B - "Supplying a Class A drug" (a case with one defendant, based upon four days duration, 96 pages of reading, 28 hours at court plus three hours’ preparation) the fee would equate to an hourly pay rate of £41 per hour.

A good illustration of a frequent scenario for a member of the Criminal Bar and the fees payable under the criminal graduated fees scheme is what happens when a case is listed for trial and adjourned on the application of a party, set out below:

"Barrister X went to Carlisle from Liverpool to prosecute a fairly serious 5 day trial against two defendants. Barrister X was called in 1976, and has 28 years experience. He is a category 4 prosecutor (the highest grade for a barrister who is not a QC). The case was adjourned at lunchtime because one defendant was ill. There was argument about the medical evidence and about whether the trial should proceed against the one who was there. Barrister X will (in due course) be paid £55 plus VAT and his mileage.

He picked up some minor pieces of work last week and this does not represent his entire income for the week. However, in some weeks it is possible that it might happen that his income would amount to £55.

Barrister X’s chambers expenses are £65 per day (broadly in line with those paid by the Criminal Bar generally) and he therefore loses £10 each time this happens and £270 if that is the only work he gets during that week.”

All of this bears directly on legal aid and the choices to be made by the Legal Services Commission. Legal aid has shrunk in scope and shrunk in relation to those who are eligible for help. The original idea at the time of the Attlee government was that perhaps 80% of the population would be eligible for legal aid. When the system was first set up, perhaps 60% actually were. In 2004, legal aid is available only to about the poorest 15% of the population and the ambit of legal aid has shrunk rapidly. Virtually no contract cases and virtually no personal injury cases are supported by legal aid.

Drilling deeper

The Fundamental Legal Aid Review (FLAR) is due to run through the rest of 2004. This process will be incomplete, or perhaps wasted, if it does not answer some very fundamental questions. Who are the existing body of clients for legal aid? What are their patterns of need for or use of courts, tribunals or other agencies requiring legal support?

Our belief is they will overwhelmingly be the most disadvantaged and poorest in society and that their needs will be multiple. We do not believe that the absence of "Middle England" from the courts is merely a matter of ineligibility for legal aid and insufficient resource to sue privately without risk. Our instinct is that "Middle England" does not have such acute social and other problems and, where these problems do arise, a fairly stoical attitude prevails, unless the problem is so severe as to demand legal action.

Criminal proceedings do. Divorce or family breakdown do. If the house burns down you go to court, but if an incompetent builder ruins the patio you probably curse fate and move on. It is only when these patterns are determined thoroughly that we will know whether it is right to focus legal aid on one place or another. Equally, it is only when these patterns are properly delineated that we can make a sensible decision about whether demand for further litigation should be stimulated.

The FLAR will have failed unless it produces "joined-up" costing of the benefits of legal intervention. There is clearly a social cost if the legal system fails to provide redress, but we would want to see FLAR researching and measuring the financial cost. It must be possible to get a good approximation of the cost to the NHS budget if peoples' housing rights are not pursued and they are left in unhealthy conditions. If a domestic violence injunction is not obtained in time, and grievous bodily harm results, then there are costs to legal aid, to the NHS, to the Social Services budget, to the Court Service and to the Prison Service, all of which might well have been avoided.

The FLAR will have failed if its real purpose is to buy out the DCA’s financial risk. The tight 2004 Spending Review settlement – which runs for two years from 1 April 2005 – simply cannot afford even the most austere pressures for legal aid, let alone the nationwide expectation of assistance for access to justice. The bean counters pay no attention unless you have some counted beans to begin with. If FLAR ends up being merely an exercise in looking at the figures inside legal aid - however expertly - it will be counterproductive. Everyone will simply think of it as being an intensive look at "how much money do we give lawyers"? It should rather be how much money can we save from all public budgets? How much help can we deliver by doing so? Where is the most effective area to deliver help? Who most needs it?

The role of the professions

In addressing these questions, FLAR must address attitudes to the professions. Do legally aided lawyers get commercial? Do they stimulate demand? If you head for fewer larger "suppliers" and then you enter a price competition, how does that mesh with seeking to meet need rather than permitting lawyers to do what is profitable in a deregulated professional environment? Is there a real problem about "Middle England"?

Government needs to end their reliance on stereotypes. The language of the market is deployed by government to suggest that lawyers resist change in order to maintain their profits. Usually the reverse is the case. The legal profession resists much of this change because the change is repugnant to professionalism, even though it would mean law was more profitable. The lawyers understand the business of law better than the bean counters. We have the knowledge and expertise and an ethical framework which limits self interest in their application.

Yet Government (and public) very often discount the knowledge and expertise we have, on the basis that lawyers have an interest in the outcome and are therefore not to be trusted.

Perhaps the central point about being a professional is that you have to be trusted. The client has no option but to trust you. The whole value-system and structure of the professional - regulation, professional organisation and culture - should be designed to converge and, in combination, to have the effect of making the professional serve the interests of his client and the courts and the law before himself.

That necessarily involves trust in the professional. Government needs to acknowledge that. We do not mean to imply that professionals should be without any financial discipline or audit: there is a balance to be struck.

Controlling cost with consensus

Graduated fees are a good mechanism only if the value to the professionals is kept at a reasonable level. We all know the history of criminal graduated fees - a system introduced in 1997 based on 1995 fee levels, which will now be current through into 2005 at least. This is an outrageous situation. No other professional group has been asked to put up with such a degradation of payment levels.

The point is important not merely for the immediate effect on criminal barristers. Since graduated fees are the best means of controlling expenditure fairly, it is an important loss across the whole legal aid system, if faith in the mechanism is destroyed by failure on the part of Government to keep fee levels at a reasonable pitch.

Another key point is that Government develops a sensible way of measuring quality. It is very easy for bean counting to do nothing more than count beans, without recognising a difference in quality or size. Quality is at the heart of the statutory test for the supply of legal services under the relevant legislation.

Each successive Government and each successive head of the Legal Services Commission acknowledges the need to pay attention to quality, but the profession generally thinks that this is lip-service. The only way the matter can be resolved is by satisfying all parties that quality can be assessed properly and that proper attention is being paid to it.

And in this context, it is the judiciary and the profession alone, who are able to assess quality. An official who has never done the job cannot do it. You certainly cannot judge the quality of an advocate by looking at how well she keeps her accounts or how tidy he keeps his desk: such proxies may be of some use when assessing a litigator but are absolutely no use when assessing an advocate.

Draining the goodwill of the profession

We have referred to the nature of professionalism above and the question of trust in the professionals. The profession feels deeply undervalued. It is a real strain to go on paying attention to ethics, putting your duty to the client ahead of your own wallet or your own fatigue, fulfilling your duty to the court, when the attitude seeping from Government and the Legal Services Commission is that lawyers are in fact all self seeking, greedy and hypocritical. Of course we do all do our duty, but it would be a lot easier to achieve that if we got some credit for the effort.

This suspicion has a reciprocal effect. For all these reasons, but particularly the failure of Government to honour its word in terms of fees, we are now at a crisis of confidence in the future of publicly funded legal work. However much we love our profession, and the job we do, it is not rational to commit one's future to the publicly funded part of the profession unless Government honours its promises. And this confidence has to be underpinned for a long term future. This applies just as much to solicitors as it does to barristers.

People will put up with a much more modest income from publicly funded sources, because they are dedicated to the work, but only on the basis that that more modest income is reliable long term.

While those who are long in the tooth may have limited options to leave, young professionals who are choosing which way to go - whether to stick to privately-funded better paid work or to commit their careers to public service law - have every opportunity to reject legally aided work. Government must commit long term to supporting those who make the choice to go for public service, publicly funded law. Otherwise they had better not develop a measure for quality or they will find that it has fled.

Getting legal aid right

In conclusion, there is clear evidence that the fight against serious crime and the increasing complexity of criminal law is the driving force behind the increased cost of major criminal trials, rather than any increase in lawyers' fees

It is wrong to assert, as is often the case that if a trial is expensive, then there is some form of 'abuse' of the system going on; while there are instances of fraud of the legal aid system, these are restricted to the solicitors' arm of the profession, and do not relate to the length of serious criminal trials.

The existence of long trials should not undermine access to justice for others if resources made available for both purposes are not ring-fenced together. The Government's own research has shown that the Community Legal Service is desperately under-funded, and that cuts in legal aid rates mean solicitors are experiencing problems finding suitably qualified barristers to take on cases.

The Criminal Defence Service Bill will introduce a means-tested element for criminal legal aid in the magistrates' courts, releasing £70 million of resources for use elsewhere in the system. We welcome means-testing for those convicted in the magistrates' courts if it releases more resources into the system. The proper targeting of legal aid and efficiency in the administration of justice are worthwhile goals so long as they do not deprive people of access to justice.

The Bar is working with the Government on the Effective Trial Management Programme - ETMP - to bring about direct cost savings in the medium to long term by ensuring that guilty defendants receive prompt and informed advice as to the potential benefits arising from entering an early plea of guilty.

The Bar has also tabled proposals for reducing the burden of serious fraud trials by introducing a form of mandatory corporate legal expenses insurance as a form of indemnity against the cost of such trials. Many cases involve company directors and officers who, at present, are entitled to non-means- tested legal aid to fund their defence. The public rightly feels considerable concern at the eligibility for such funding. In an environment of heightened awareness of the need for greater corporate governance it seems right that the corporate sector and not the general taxpayer should meet the bill for improper commercial conduct.

Conclusion

People need legal aid, otherwise access to justice is just a slogan. The provision of legal aid is at a crunch point, as the House of Commons Committee and the Independent Review have found. Let us get to the right answer by looking at all the figures, in budgets across the whole public sector. Let us get the right answer without relying on just stereotypes of public service lawyers. The lawyers need confidence in reasonable pay long-term. They have no such confidence now, and with very good reason.

London
October 2004