In Family, Housing, Immigration and Social Welfare law, amongst other areas, this will be the most significant alteration in the provision of public funding since the inception of legal aid in 1949. For practitioners in these areas this will mean fundamental changes. For those who get caught up in these forms of litigation, often the most vulnerable in our society, this will mean the loss of all publicly funded representation in their cases.
As a profession we fought a long and hard battle on behalf of those members of the public directly affected, and on behalf of those who practise in these areas. Our arguments of high principle failed against the practicalities of the current economic climate. We cannot escape the fact that the Government will no longer fund the justice system adequately. Unlike healthcare, it has not deemed access to justice to be universal. We have to deal with the consequences of that choice.
In the best traditions of the Bar we have rallied to provide help to those who most need it. In conjunction with the Civil Justice Council, the Bar Council and the Specialist Bar Associations have produced a series of leaflets to assist those who will have to go to court unrepresented. Most of the SBAs provided expert help whilst some others helped by contributing funding to reduce publication costs and the like.
There is further help that practitioners can provide which assists the litigant and will maintain some work for the junior Bar. In some disciplines, operating under the Public Access Rules, junior members of the Bar can act privately in discrete and limited parts of a case. The SBAs in these areas are working to provide guidance to their members.
For the future, it is essential that we keep a close watch on those proceedings involving self-representing litigants: the savings in fees projected by the Ministry of Justice may pale against an increase in costs caused by cases taking longer and a rise in the number of appeals. We have opened a dedicated e-mail box to receive any information about the effects of the changes - LASPO@barcouncil.org.uk. Please let us know of any listing problems or delays caused by unrepresented litigants so that we can take back your experience to the MoJ and re-open the debate, if possible.
We must also develop the skill, not simply of doing pro bono work like this in the public interest, but of being able to make known to the public what we are doing to help them. The Bar’s willingness to spend vast amounts of time and effort working for nothing is greatly to our credit. We must be able to let the public know what we do and to make the Government realise that our good will cannot be stretched beyond endurance or taken for granted. The destruction of people’s livelihoods has a tendency to destroy their generosity of spirit.
There are those outside the profession who also provide help and assistance to unrepresented parties. They also deserve our thanks and support. The Personal Support Unit (www.thepsu.org), which has branches in the RCJ and most of the major court centres, offers moral support and practical help to litigants. They do not offer legal advice or representation. They are always willing to receive help, either financial support, or practical assistance from people who could volunteer to spend some time working with them. It’s a very good introduction to the practical aspects of litigation for pupils and Bar students.
In addition there is a group of selfless people who volunteer as McKenzie friends. They provide invaluable help in many cases. There are however some, no doubt a tiny number, who see the gap in the provision of legal aid as an opportunity they can fill, to their own advantage. There are instances of “professional” McKenzie friends offering their services at hourly rates higher than junior counsel would be paid in such cases. Again this is something which, in conjunction with the Family Law Bar Association, we are currently investigating. There are examples of similar instances in Employment Tribunals. If you have any information, please send it to the LASPO e-mail box, above.
There is a remarkable spirit at the Bar, particularly apparent at the recent FLBA Annual Dinner and the Civil Fees Conference, to fight on and continue to work in the best interests of the public. We are rightly proud of that. We cannot, however, go on forever bending to accommodate more and greater cuts in fees and an apparent disappearance of all respect for us and what we do in Whitehall and Westminster. We have unmatched skill, integrity and expertise in what we do and how we do it. We provide an invaluable service to the public, both society as a whole and the individual litigant. We perform an essential role in support of the maintenance of the Rule of Law. The loss of quality and prestige in the provision of publicly funded representation will have detrimental consequences for the health of our democracy. We damage that at our peril. Lord Neuberger may be a “top Judge”, that doesn’t mean he is wrong.
*A great deal of help on the new provisions and a Statutory Instrument Tracker is available on the Bar Council monthly Remuneration Update for March.