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Weaknesses, observations and remedies – how to fix legal aid? A call for evidence from the Lord Chancellor’s Advisory Council Chair Gary Bell QC

On 28 January 2016, the Lord Chancellor, Michael Gove, abandoned plans to impose dual or two-tier contracts. 

 


In a written ministerial statement he said: ‘My department is committed to upholding the rule of law, by defending the independence of the judiciary, guaranteeing access to justice and supporting the highest quality advocacy in our courts.’ 

He further stated that ‘steps have been taken to ensure our judiciary remain the best in the world, to provide a fair system of publicly funded legal support and to explore how we can strengthen the quality of advocacy in all our courts, but most particularly in criminal proceedings.’

Confirming a commitment to ‘retaining a vibrant independent Bar’, he impressed that ‘the health of the independent criminal Bar in England and Wales is an important guarantor of good advocacy’, and endorsed the words of Sir Bill Jeffrey, who described the independent criminal Bar as a ‘substantial national asset’ in his 2014 review (Independent criminal advocacy in England and Wales). He also recognised the vital role that criminal legal aid solicitors perform in our justice system.

Achieving buy-in for reform

The Lord Chancellor then set out a programme of reform for the rest of this parliament. Aiming to achieve ‘swifter and more certain’ justice, the reforms include:

  • taking more work out of courts;
  • moving from a paper-based system to a digital platform;
  • tackling unnecessary costs; and
  • reducing harmful delay.

Asking for practitioner input rather than blind support, he emphasised that ‘these reforms will need the support of all in the legal profession’.

He also outlined his intention ‘to appoint an advisory council of solicitors and barristers to help me explore how we can reduce unnecessary bureaucratic costs, eliminate waste and end continuing abuses within the current legal aid system.’

The Advisory Council and its composition

I have been asked to set up and chair that council, as a practitioner with over a quarter of a century’s experience as a criminal lawyer working at all levels of legal aid. The Advisory Council will consist primarily of barristers and solicitors, as well as representatives of the Legal Aid Agency and the judiciary (see list, below). 

The Council’s conclusions and recommendations will be those drawn from a group of individuals with extensive experience of the criminal justice system and in legal aid. The various representative bodies have all been approached by the Ministry of Justice and invited to express their views and raise issues they would like the Council to address. 

Since the Advisory Council was announced there has been a degree of criticism on its composition in the legal press and social media. It has been accused of being dominated by the Bar and, although the point of the Council is not to represent the interests of one part of the profession over the other, it is accepted that more solicitors are needed to deal with difficulties in police station and magistrates work. 

For that reason one further solicitor, Richard Bannister, a highly respected higher courts advocate with a wealth of experience of conducting trials in all courts, has been added to the Council. Two further solicitors will be appointed shortly, which will mean there will be seven barristers, six solicitors and a legal executive on the council. Those seven barristers come from six different sets of chambers and the solicitors and legal executives are all from different firms of various shapes and sizes. There is one barrister, apart from myself, from No 5 Chambers. Anyone who knows Earl Pinnock will know he is a tremendous asset in every conceivable way to the Council. There have been questions as to why my clerk, Andrew Trotter, is on the Council. He has vast experience of clerking at all levels of legal aid and is on the Council to provide invaluable input from a clerk’s perspective.   

Concerns have also been raised about geographical diversity. It is accepted that the Council is based in London, the West Midlands and the East Midlands. That is for entirely logistical reasons. Given the size and scope of our remit it would be impossible to get people together from all corners of the jurisdiction. If some areas were represented and others omitted, there would likely be complaints from those who were left out. The purpose of the Council is not to represent any specific area but to identify problems which will be generic. 

Call for evidence

This is our opportunity to inform the Lord Chancellor of what we, who work at the coalface of criminal justice, see as weaknesses within the legal aid system that need to be addressed. Everyone involved in the criminal justice system is invited to contact us with issues they wish us to address. Whilst it is important that individual practitioners have the opportunity to express their concerns and provide their views and ideas to the Lord Chancellor, we also want to hear from those who represent them. Therefore, in addition to the practitioner group, I will be inviting representative bodies and specialist associations to send me written submissions setting out their observations and recommended solutions.

We invite you to consider all matters affecting efficiency, delay and waste within the legal aid system and to make recommendations to the Lord Chancellor as to how best they can be eliminated. We will also consider any examples of abuse and make recommendations as to how these can be eradicated. The point is not to identify individuals suspected of abuse but to identify the abuses themselves and come up with a solution to stop them.

We anticipate providing our report in early September and look forward to hearing the issues you wish us to address. Please email me at AC@no5.com. If you wish your communication to be kept confidential, please inform me in the e-mail and I will redact your name before raising the issue with the full Council. In view of the volume of communication we anticipate, I apologise that we will not be able to answer your e-mails but your queries will be considered by the Council before we produce our report. 

Contributor Gary Bell QC, Advisory Council Chair

Members of the Advisory Council

  • Priya Bakshi, Junior barrister, KCH Barristers in Nottingham
  • Richard Bannister, Solicitor, partner and higher courts advocate, Harringtons Legal 
  • Gary Bell QC, No 5 Chambers
  • David Etherington QC, 18 Red Lion Court
  • Victoria Gregory, Legal executive, Janes Solicitors
  • Rebecca Herbert, Junior barrister and Recorder, 36 Bedford Row
  • HHJ Adrienne Lucking QC, Northampton Crown Court
  • Priya Malhotra, Junior barrister, 25 Bedford Row
  • HHJ Rupert Mayo, Recorder of Northampton
  • Richard Nelson, Solicitor and senior partner, Richard Nelson LLP  
  • Earl Pinnock, Junior barrister, No 5 Chambers
  • Tarsem Salhan, Solicitor and senior partner at Salhan & Co
  • Paul Selby, Solicitor and partner, Mann & Co
  • Mark Trafford QC, 23 Essex Street
  • Andrew Trotter, Senior criminal clerk, No 5 Chambers

Two further solicitor appointments to be confirmed.

There will also be a representative from the Legal Aid Agency.

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Gary Bell QC

GGary Bell QC is a criminal defence lawyer at No5 Chambers. He has over a quarter of a century’s experience as a criminal lawyer working at all levels of legal aid.