‘[…] in the lobbying of this House and the upper House we have had an army of lawyers advancing behind a front of women and children—vulnerable claimants who they say would not be represented if they are not paid as much as they are now. I am afraid I do not believe that.’
Those were the provocative words of the secretary of state for justice, the Rt Hon Kenneth Clarke QC MP, during November’s Commons Report Stage debate on the Legal Aid, Sentencing and Punishment of Offenders Bill. After over 10 months of negotiation, 14 Government defeats and numerous concessions, the Bill received its Royal Assent on May 1st. Unfortunately, despite the concerted efforts of a wide range of lobbyists, interest groups and a large number of peers (described by Lord Alton as ‘the awkward squad’) the Bill in its final, albeit amended, form will lead to the wholesale denial of access to justice for some of the most vulnerable members of society.
Contrary to the frankly disingenuous remarks of the secretary of state, it is precisely for those individuals for whom the Bar has lobbied so hard on this measure. Many of the amendments eventually accepted by the Government, including the scrapping of provisions to bring in means testing for legal advice at the police station, the reinstatement of legal aid for domestic child abduction and the widening of the Bill’s definition of domestic abuse, were proposed by the Bar Council, in the public interest, when the Bill was first published, and we campaigned vociferously to ensure that they were included in the final Bill.
It is not for the sake of family barristers that we urged the Government to think again about the removal, almost in its entirety, of private family law from the scope of legal aid. Many have stood alongside us to argue that these short-sighted cuts are likely to cost the Government more in the long term, as self-representing litigants, struggling under the emotional strain of relationship breakdown and child access battles, prolong cases and clog up the courts. Our primary concern is for those who will struggle to represent themselves in court without proper representation, and for the many other individuals who will be deterred from seeking justice at all.
Of course, we remain aware of the Bill’s inevitable impact on the legal profession too, coming as it does alongside yet more cuts to the fees of publicly funded practitioners. So what is the future of the publicly funded Bar? In family law, public law cases will continue to receive public funds, but not private family law cases. In social welfare law, only cases at the higher tribunals in which a point of law is at issue will receive legal aid. And legal aid has been removed from almost all of clinical negligence, with the exception of pre- and peri-natal brain injury cases. Some clinical negligence cases will be brought forward under conditional fee agreements instead, but thanks to reforms to civil litigation funding confined elsewhere within the Bill, the risks of taking on uncertain cases will be far higher. Some individuals will receive legal help pro bono from the many lawyers who give up their time for free, subject to the cuts being imposed on law centres and CABx across the country and the eventual de-skilling of social welfare law. There is no point in denying that the future looks bleak.
This is not just the concern of the publicly funded Bar and those tasked with representing the profession. What will be the impact of these reforms on the demographic makeup of the Bar as a whole?
As the Government looks at ways to improve the diversity of the judiciary, it is simultaneously cutting at the umbilical cord of so many of the exceptional female and BME practitioners who take on a disproportionate amount of publicly funded work, and do so with the skill and expertise which will eventually make them excellent candidates for the Bench.
Some will look to take on better remunerated private work instead, whilst others will leave the profession altogether, to the detriment of the public.
Despite this harsh reality, there remains a place in society for the publicly-funded civil barrister, albeit one for which they must fight even harder. I come across many young barristers with a passion for civil and criminal legal aid work, and a desire to continue this work in the future, who are diversifying their practices in innovative ways. By supplementing it with direct access work, privately-funded legal work, a variety of advisory services and regulatory work, they have been able to develop a varied, flexible and sustainable career. Our unique skills as advocates remain of great value to the public and, believe it or not, to the Government. Today more than ever, the Bar must adapt in order to thrive.