The big debate: is pro bono always a force for good? Michael Todd QC reports

Bar Pro Bono Unit

  • Moderator Richard Atkins QC, Bar Vice Chair Elect, St Philips Barristers
  • Speakers Jessica Campbell, Chief Executive of the Bar Pro Bono Unit; Alison Padfield, Chair of the Bar Pro Bono Board, 4 New Square; Max Hardy, 9 Bedford Row; Richard Balchin, Trinity Chambers

Have you heard about Tanya Murshed, at 1MCB Chambers, winner of this year’s Bar Pro Bono Award? She has been doing outstanding work over the past four-and-a-half years assisting vulnerable individuals in Uganda convicted of capital offences, following the decision of the Supreme Court of Uganda that automatic death sentences are unconstitutional.

Taking a sabbatical to assist with submissions, organising special mitigation sessions and training sessions for law students to assist in the process for the re-sentencing of capital offenders, seems to me to be a considerable force for good. But is it always a force for good?

Any consideration of the value of pro bono (in its widest sense) requires the work of the pro bono agencies to be contextualised. Jess Campbell, CEO of the Bar Pro Bono Unit, explained that in the two years following LASPO, the Unit saw an increase in applications, year on year, of nearly 30%. Since then, applications have been steady, around 2,200 per year. That figure is nearly double the number of applications in 2012. This only addresses the number of people going to the Unit for help. Statistics from the Office for National Statistics, published on 28 September 2017, disclose that in family matters alone, there has been an increase, since 2013, of 19% in the number of cases where both parties are unrepresented. Of the 13,029 new private law cases started in the family courts between April-June this year, in approximately 8,000 cases, neither party was represented.

Richard Balchin, daring ‘to boldly go…’, asked whether the Bar, particularly the junior Bar, should be asked to work for no financial award, rewarded only with the prospect of trophies such as the Bar Pro Bono Award. Is the Bar not simply providing the government with a get-out-of-jail-free card? That theme was taken up by Max Hardy who asked whether it was the Bar’s responsibility to fill in the gaps in order to make the government feel guilty.

Taking the full title – pro bono publico – what benefit is achieved for the public as a whole, as opposed to the individual? Richard Atkins QC distilled the issue, asking whether we should be propping up the system, or just let the wheels come off? Are we privileged to do pro bono, he asked, or being taken for a ride?

Alison Padfield, together with Campbell, provided answers: access to justice is a fundamental human right that should be provided by a properly funded legal system; no such system exists on England and Wales; pro bono provides some level of access to justice to an imperfect justice system; but it cannot be and should not be seen as an alternative to a properly funded legal system.

Padfield said barristers have the privilege of being permitted to carry on reserved legal activities, on behalf of others – and with privilege comes responsibility. She asked, poignantly, ‘Can you turn down a plea for help because someone else should have that responsibility?’

Campbell explained: ‘With the best will in the world, the reality is the demand is so much higher than any individual, group, partnership, strategy or the Bar of 15,000 barristers could ever hope to help. Pro bono quite simply could not, ever, fill any gap left by the lack of legal aid.’

Pro bono may not always be seen by everyone as a force for good. But to those 243 individuals in Uganda who, on re-sentencing since the decision of the Supreme Court, with many being released, I suggest it could not have been better.

‘To be able to say “I stood up where the government walked away.” Pro bono is helping people who cannot help themselves. I believe that is impactful. It is simply what you do; and what you do is good,’ concluded Campbell. 

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Michael Todd QC

Chairman of the Counsel Editorial Board and Head of Erskine Chambers