Report finds civil legal aid "running on an empty tank, kept going by nothing more than the goodwill of the legal profession"
Bar Council report highlights serious problems in the civil legal aid system
19 January 2021
The Bar Council on Friday published a new report on the problems in the civil legal aid system. Whilst it covers immigration and asylum law only as part of a wider look at civil legal aid as a whole, it is an important report that will be of interest to many readers of EIN.
The 38-page report can be read here.
Derek Sweeting QC, Chair of the bar Council, said: "Our report finds a civil legal aid system running on an empty tank, kept going by nothing more than the goodwill of the legal profession. This is not a sustainable way to guarantee the future of such an essential service for the public."
For the report, the Bar Council interviewed a representative sample of civil legal aid barristers, including those working in immigration and asylum.
"We found a civil Bar still deeply committed to the social principles of justice for all but weary of their labour, commitment and goodwill being continually taken for granted by a government seemingly anxious to save every possible penny of legal aid funding even at the expense of short term effectiveness and long-term sustainability. Barristers who choose to work in publicly funded work, despite knowing they could earn substantially more elsewhere with their hard-won qualifications, have usually made a deliberate vocational choice from a sense of social duty and moral conviction. They are then put into a position where they are progressively expected to work harder for less reward and more stressful working conditions. Our barristers are extremely worried about the sustainability of their profession, particularly in its interdependence with solicitor colleagues, who have been just as hard hit by funding cuts," the Bar Council stated.
Amongst the report's key findings are:
- The widespread closures of advice centres and high street solicitors, and increased pressure on those that remain, have seriously impacted the Bar.
- Increased case volume is made to compensate for the reduction in fees, leading to a stressful and last-minute working culture.
- Unsustainability for those coming in at the junior end, and problems with retention and career development, particularly from those without independent financial means
- Processes at the Legal Aid Agency feel obtuse and complicated
One barrister is quoted in the report explaining the issues around fixed fees for asylum appeals, saying:
"For example, you might have a child that underwent trafficking and persecution and who isn't in a situation where they are able to give clear instruction. So if you think about the amount of work that needs to be obtained – evidence in terms of medical experts and also just the time taken in terms of taking instruction – being able to draft the witness statements. As long as you do three times the general amount of work it would then convert into hourly rates and you would be paid at hourly rates. But you would never know this, unless solicitors are really watching the clock. You would have to know what your solicitor was doing as well in terms of the hours they were doing. So you would never know this until the end. And very often what I find, even now, is that I'm just short. And so you end up with £350 for what could be 3 days' work, even just before the hearing. And so that had a huge impact on finances. And the other thing is that there is no provision for payment unless you get permission in a judicial review. And in my field that's significant because the written pleadings are extremely substantial. In terms of the work involved to actually get them to a standard where you feel that permission can be achieved. And there are various aspects that knock on in terms of whether permission can be granted. So, for example, something might happen after you've drafted the pleadings that means the case changes or arguably becomes academic or the other side introduce something new or send you a new document that you haven't seen before. All of which can mean that you don't get paid. You've actually achieved what you set out to achieve but you don't get paid for the work done."
Stephanie Harrison QC of Garden Court Chambers told the Bar Council: "I don't think its valued and properly recognised at all in the law, it's a public service basically and it only functions as other essential services do, like the health service, and the education system, on the basis that there is a group of people who are willing to go way above and beyond to continue to provide that service to people. I don't think that's healthy, and I don't think it should be expected, but people do it."
As another barrister notes in the report: "[T]he ultimate effect is on the people who need their help who can't get it anymore. These people must then end up costing the state in so many other ways not just in terms of the court service but in terms of every other service because they are homeless for example. The cost to anyone who works in the system, the cost to society of removing that front-line legal aid is so clear and so obvious."
The Bar Council concludes: "The continued ability of the publicly funded Bar to deliver quality legal representation is dependent on the working conditions and remuneration being adequate to attract, develop and retain committed barristers. After a decade of austerity that has brought a 37% real cut in legal aid spending per capita in England and Wales, pay and conditions at the civil Bar continue to decline to the point where, now, even notwithstanding the impact of the Covid-19 pandemic, sustainability is called into question. As barristers feel increasingly unsupported to do their jobs properly, the goodwill of legal professionals on which the system depends is fraying."
Derek Sweeting QC said: "We urge the Government to heed the findings of this report and seek to meet the Bar's commitment to social duty and access to justice with some proper investment in, and respect for, the justice system."