COVID: the Bar’s pro bono response

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What the Bar has been doing, what more needs to be done, and the contribution that can be made by individual barristers. By Andrew Hillier QC

The pandemic will soon be entering its eighth month. As well as causing massive disruption, it has thrown up a raft of legal issues which are already having a major impact on people unable to afford professional advice and assistance, yet ineligible for legal aid. The Law Centres Network anticipates that millions will fall into what it calls this ‘justice gap’. If Citizens Advice and front-line agencies (FLAs) will continue to bear the brunt of this demand, the legal profession is also responding to the challenge. A cross-sector Legal and Advice Roundtable has been established, which meets regularly to share information and coordinate the initiatives that are taking place in response to COVID-19. Facilitated through LawWorks and other schemes, city and high street firms of solicitors are playing a major role. This article focuses on what the Bar has been doing, what more needs to be done and the contribution that can be made by individual barristers.

As always, it must be stressed that pro bono assistance is no substitute for a properly funded system of legal advice and representation to ensure access to justice in all deserving cases. As indicated in countless reports, professional help at an early stage is cost-effective and can save the state vast amounts of money, as well as reducing immense personal hardship, a point that is repeatedly made by the Bar Council. Conscious that many barristers have already been hard hit by the crisis, its priority is to assist them and ensure the survival of the Bar as we know it. However, the Bar Council is also extremely supportive of pro bono initiatives and will soon be issuing a toolkit or Code of Practice to support the delivery of such assistance.

Many barristers are generous in giving free advice and help on ad hoc basis, whether through solicitors or informally, and since it generally goes unrecorded, it is difficult to measure the full extent of the Bar’s contribution. On a formal basis, it provides assistance by way of specific agencies and projects operating under the umbrella of the National Pro Bono Centre, and chambers acting as such or through individual members. Paradoxically, one spin-off from the crisis has been that, with technology enabling meetings and hearings to be conducted remotely, the geographical barrier that has prevented clients in outlying areas from getting such assistance has been, and certainly should in the future be, easier to overcome. A technological barrier may however remain for some of the most vulnerable clients.

The principal agency is Advocate (the former Bar Pro Bono Unit) which connects barristers with clients, who have deserving cases but limited means. Under a specific dispensation, the barrister is in direct relationship with the client and, save in special circumstances, there is no solicitor involvement. The professional duty is exactly the same as in the case of paying clients. Advocate’s workload has increased significantly this year and this reflects, in part, the Bar’s willingness to respond to the crisis (see below).

To meet the increasing need for assistance, other complementary projects are in operation: Pro Bono Connect enables the barrister to bring in a solicitor, also on a pro bono basis, where that is necessary, and specialist schemes have been set up both in and outside London, dealing with housing, welfare benefits and family. In London, the Free Representation Unit (FRU) provides representation by pupils and students in employment and welfare benefit cases. There are also a number of court door schemes, many underpinned by Advocate, where the client can obtain assistance from a duty barrister or solicitor: these include CLIPS, established by the Chancery Bar, ELIPS, which provides representation at employment tribunals and ELAAS, through which assistance can be obtained at the Employment Appeal Tribunal. This help is inevitably limited and its efficacy is partly dependent on clients being able to get further free advice after the initial steps have been taken and they have been pointed in the right direction. Various schemes have also been established for assigning lawyers – barristers as well as solicitors – as volunteer advisers in Law Clinics and FLAs and to act as mediators.

In addition to help in specific cases, the pandemic has seen a remarkable increase in advice being provided on a more general basis both by sets of chambers and individual barristers. FLAs have benefitted from a stream of webinars, training sessions, blogs and fact sheets, dealing with the numerous issues that have arisen. These have been especially useful in the field of employment, where those in precarious work, women and men with child-care responsibilities and immigrant workers, whether from Eastern Europe or BAME communities, have been particularly hard-hit, and have needed advice in relation to both their statutory rights and health and safety issues. While it may seem invidious to single out particular sets of chambers, a number have been outstanding. Cloisters has produced a Toolkit: Returning to Work in the Time of Coronavirus, now in its eighth edition, hosted regular webinars and training sessions and has fronted on a pro bono basis a number of test cases brought by trade unions and others challenging the government’s response; and Old Square Chambers has provided invaluable advice in relation to PPE and health and safety obligations.

However, there remains a huge amount to do. While the initial hurdle was keeping up with the rapid changes in the law and the rescue packages that were being introduced, that aspect is now stabilising. The next step is coping with the more long-term consequences of the crisis – mass redundancies, evictions and homelessness, insolvency, and all the problems that spring from acute social hardship, including the vast increase in domestic violence, that has already been recorded, with those who suffer the most, being the least able to access the most basic advice.

To be able to advise clients as to their rights, the barrister needs to be practising or have some expertise in that area – an increasing number are developing further specialisations specifically for that purpose. But, even without such specialisation, lawyers can use their professional skills to provide much-needed help to FLAs in the service they give to their clients: triaging cases, taking statements, marshalling documents, working with a specialist, and following up specialist advice that has been given. Not only is this vital for the client but it is of immense benefit to the court, most especially where there is increasing reliance on virtual hearings. There is a wealth of barristers willing to provide this sort of assistance, comprising both those in practice and those who have retired, but still keen to keep in touch with the profession, but it has yet to be properly tapped into. Working with Pro Bono Community, Advocate will be developing a scheme that will properly exploit this valuable resource. But there’s no need to wait. If you want to get involved, whether on Advocate’s panel of specialist barristers or as a non-specialist volunteer assisting FLAs, you can sign up now on Advocate’s website. Over the following months, the need for your help will become all the more pressing. 

For further details of these projects and how to get involved, go to: weareadvocate.org.uk/partner-schemes.html
 
  • Family: Family has always been Advocate’s most in-demand area of law, and also the most difficult one in which to place cases – demand simply outstrips supply. There has been a rise in the number of applicants on both sides of broken child contact arrangements: those refusing access to their children and those being refused it as a result of the lockdown.
  • Housing: Usually Advocate’s third most busy area of law, housing has been eerily quiet for the last few months due to the government’s temporary stay on evictions. We know from experience that there are thousands of private renters who are at risk of losing their homes when the stay is lifted. In the last few weeks, we’ve started to witness an increase in the number of applicants requesting housing assistance and this will inevitably grow exponentially in the near future.
  • Employment: It used to be the case that Advocate received many more family cases than any other area of law. But that has changed in the last few months and employment cases are now neck-and-neck with family enquiries. As the furlough scheme winds up, the public’s worry now is clearly shifting towards redundancy. Citizens Advice reported that it has seen a 199% increase in redundancy enquiries than in the same period last year.
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Andrew Hillier QC

Andrew Hillier QC was called to the Bar in 1972 and practised mainly as an employment barrister. He retired in 2012 but has maintained his links with the profession through his pro bono work.