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Synoposis of Bar’s response to MoJ’s consultation papers on legal aid and Jackson. The Bar has concluded that most of the legal aid proposals will cause irreparable damage
Contributor
Peter Lodder QC
The Bar Council responses to the Legal Aid Consultation Green Paper and the Jackson implementation proposals have gone to the Ministry of Justice. I am very grateful to Stephen Cobb QC and his team for the enormous efforts they have made. They have produced analyses of the two sets of proposals that are well reasoned, balanced and very much in the public interest.
In the legal aid response in particular, there are powerful observations about the real effect of the cuts. If implemented, most of these proposals will cause irreparable damage to the current range of public funding across many areas of law. But there is also a significant risk that the costs to society and to the Justice System will actually increase rather than decrease. Removing an area of legal redress from the scope of legal aid does not resolve the original problem, it merely pushes the problem onto another public service such as the police, education, welfare or mental health, where the costs may be even greater. Furthermore, many of those who will be excluded from assistance will be forced to represent themselves; an increase in litigants in person risks creating even greater burdens on a court system already creaking under the strain. The paucity of evidence to support the Ministry’s proposals is a source of deep concern.
In the short time available the Bar Council has commissioned The Strategic Society Centre to conduct some of the necessary research. Their findings demonstrate the reality of these displacement costs – in monetary, health and emotional terms. Excluding a significant section of society from access to justice is likely to cost much more than will be saved.
Our responses highlight many other misconceptions: the notion that lawyers decide whether a client will elect trial on indictment, or when and where a defendant chooses to plead guilty, or that the efficient and effective conduct of serious cases of homicide do not need to be paid adequately. You will find each of the responses on the Bar Council website. Please familiarise yourselves with the arguments and take every opportunity to inform the public of what is happening. My thanks are also due to Chris Hancock QC who shouldered most of the burden on the Jackson response and to the many individual practitioners who assisted in the preparation of each of these responses.
For some time the Bar has been in discussion with the CPS so as to ensure that the self-employed Bar continues to receive a significant proportion of prosecution work. Out of these discussions a panel scheme has emerged. This is an opportunity for new practitioners to obtain CPS work and allows the CPS to concentrate their instructions on those who wish to continue to prosecute. There were differing responses to the Bar Council’s consultation on this topic: some welcomed the new scheme, others did not. The application process may be a little time consuming and the relevance of some of the questions is not particularly clear. But this is a system which will ensure the allocation of almost 75 per cent of the CPS’ advocacy to the Bar. This is a substantial improvement on the position we were in a few years ago. The final form of the panels has not been agreed. In conjunction with Circuit leaders we will seek to achieve as fair and balanced a system as possible. In addition there are discussions about levels of payment. The DPP has to deliver savings of 25 per cent over the next three years. Inevitably his budgetary review will consider counsels’ fees. We are looking at ways to avoid the further reduction of what are already low rates and are making suggestions for savings elsewhere. Again the Circuit leaders will be closely involved and you will be kept informed.
Recently there has been a revival of a European (CCBE) initiative to harmonise contract law. This is a naked attempt to draw work away from London and to diminish the commercial importance of English contract law. This latest foray was stoutly and successfully rebuffed by Michael Patchett-Joyce, Co-Chair of the European Committee, and by Evanna Fruithof in the BC Brussels office. I am grateful for their help.
I had the privilege of attending the Commonwealth Law Conference in Hyderabad from 5 – 9 February. The focus was on the Rule of Law and the conference had the benefit of speeches from Lord Neuberger MR, Lord Lester QC, Sir Sydney Kentridge QC and many others. As well as speaking, I attended a seminar on advocacy and courtroom skills chaired by Lord Judge CJ. Questions ranged across standards, the behaviour of poor quality opponents and how to deal with difficult judges – meat and drink for most of us. More sinister and beyond our experience was the question posed by one delegate seeking advice on how he should deal with a corrupt judge. Not an easy one to answer, but it did put into a particular perspective some of the problems with which we have to deal.
In the legal aid response in particular, there are powerful observations about the real effect of the cuts. If implemented, most of these proposals will cause irreparable damage to the current range of public funding across many areas of law. But there is also a significant risk that the costs to society and to the Justice System will actually increase rather than decrease. Removing an area of legal redress from the scope of legal aid does not resolve the original problem, it merely pushes the problem onto another public service such as the police, education, welfare or mental health, where the costs may be even greater. Furthermore, many of those who will be excluded from assistance will be forced to represent themselves; an increase in litigants in person risks creating even greater burdens on a court system already creaking under the strain. The paucity of evidence to support the Ministry’s proposals is a source of deep concern.
In the short time available the Bar Council has commissioned The Strategic Society Centre to conduct some of the necessary research. Their findings demonstrate the reality of these displacement costs – in monetary, health and emotional terms. Excluding a significant section of society from access to justice is likely to cost much more than will be saved.
Our responses highlight many other misconceptions: the notion that lawyers decide whether a client will elect trial on indictment, or when and where a defendant chooses to plead guilty, or that the efficient and effective conduct of serious cases of homicide do not need to be paid adequately. You will find each of the responses on the Bar Council website. Please familiarise yourselves with the arguments and take every opportunity to inform the public of what is happening. My thanks are also due to Chris Hancock QC who shouldered most of the burden on the Jackson response and to the many individual practitioners who assisted in the preparation of each of these responses.
For some time the Bar has been in discussion with the CPS so as to ensure that the self-employed Bar continues to receive a significant proportion of prosecution work. Out of these discussions a panel scheme has emerged. This is an opportunity for new practitioners to obtain CPS work and allows the CPS to concentrate their instructions on those who wish to continue to prosecute. There were differing responses to the Bar Council’s consultation on this topic: some welcomed the new scheme, others did not. The application process may be a little time consuming and the relevance of some of the questions is not particularly clear. But this is a system which will ensure the allocation of almost 75 per cent of the CPS’ advocacy to the Bar. This is a substantial improvement on the position we were in a few years ago. The final form of the panels has not been agreed. In conjunction with Circuit leaders we will seek to achieve as fair and balanced a system as possible. In addition there are discussions about levels of payment. The DPP has to deliver savings of 25 per cent over the next three years. Inevitably his budgetary review will consider counsels’ fees. We are looking at ways to avoid the further reduction of what are already low rates and are making suggestions for savings elsewhere. Again the Circuit leaders will be closely involved and you will be kept informed.
Recently there has been a revival of a European (CCBE) initiative to harmonise contract law. This is a naked attempt to draw work away from London and to diminish the commercial importance of English contract law. This latest foray was stoutly and successfully rebuffed by Michael Patchett-Joyce, Co-Chair of the European Committee, and by Evanna Fruithof in the BC Brussels office. I am grateful for their help.
I had the privilege of attending the Commonwealth Law Conference in Hyderabad from 5 – 9 February. The focus was on the Rule of Law and the conference had the benefit of speeches from Lord Neuberger MR, Lord Lester QC, Sir Sydney Kentridge QC and many others. As well as speaking, I attended a seminar on advocacy and courtroom skills chaired by Lord Judge CJ. Questions ranged across standards, the behaviour of poor quality opponents and how to deal with difficult judges – meat and drink for most of us. More sinister and beyond our experience was the question posed by one delegate seeking advice on how he should deal with a corrupt judge. Not an easy one to answer, but it did put into a particular perspective some of the problems with which we have to deal.
Synoposis of Bar’s response to MoJ’s consultation papers on legal aid and Jackson. The Bar has concluded that most of the legal aid proposals will cause irreparable damage
Contributor
Peter Lodder QC
The Bar Council responses to the Legal Aid Consultation Green Paper and the Jackson implementation proposals have gone to the Ministry of Justice. I am very grateful to Stephen Cobb QC and his team for the enormous efforts they have made. They have produced analyses of the two sets of proposals that are well reasoned, balanced and very much in the public interest.
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