The damage has been done

Preface
The damaging effects of LASPO and Government cuts; SRLs;  a call to all at the Bar to support and maintain the Bar’s Pro Bono Unit;  and welcoming the new Lord Chancellor

Contributor
Michael Todd QC, Chairman of the Bar

The damage has been done: cuts in criminal defence fees by the last Labour Administration in its dying days of 13% over a three-year period on fee rates set in 1997; cuts to the CPS budget of 25% in the Comprehensive Spending Review, resulting in cuts to prosecution fee rates; the announcement earlier this year by Danny Alexander MP, Chief Secretary to the Treasury, that Government spending departments would have to find further cuts of 5% for contingencies; the enactment of LASPO; whole swathes of legal services have been removed from the scope of legal aid for family work. Apparently, we have had a ‘Rolls Royce’ legal aid system; apparently we spend more on legal aid than any other country in the West, if not in the world. As Shami Chakrabati, Director of Liberty, said at the Bar Conference in 2007, if that is the case, it is something of which we should be proud.
Access to justice has always been too expensive, for most people. These cuts will ensure that access to justice will be denied to many more. When I say access to justice, I mean effective access to justice. Self-Representing Litigants (SRLs) can always appear before the Courts in person, but what prospects do they have of putting forward their best case? In truth, are our criminal and civil justice systems really accessible to SRLs? We have all experienced the greater length of hearings when a SRL has appeared. Not only does that case take longer, but it causes delays for others in the system waiting for their cases to be heard. Has the Government undertaken a proper assessment of the additional costs which the justice system will bear as a result of those cuts? If they have, I seem to have missed it.

And so do others. The Government has only to read the report of the Civil Justice Council presented to the Lord Chancellor in November 2011. It foresees the consequences, not simply because of their scale, but also by reason of their design and incidence, bearing disproportionately adversely on the most vulnerable in society.  Every informed prediction is that, by reason of the forthcoming reductions and changes in legal aid, the number of SRLs will increase, and on a considerable scale, with such litigants becoming the rule rather than the exception.

Even if all the recommendations they make are acted upon, they will not prevent the reality that in many situations, as a result of the reductions and changes in legal aid, there will be a denial of justice; those recommendations are about making “the best of a bad job.”
It is those concerns which lead District Judge Richard Chapman, President of the Association of Her Majesty’s District Judges, to tell Jane Croft of the Financial Times, when interviewed for her report “Legal aid cuts spur self-representation fears”, that there had been a significant increase in SRLs over the last couple of years, and that they anticipate, and have concerns, that there will be more and more as legal aid becomes less available. Inevitably cases involving SRLs take longer as they don’t know what the law is, what documents to produce and what evidence to lead.

Everyone I speak to - interested parties, that is, outside of Parliament - are saying the same thing: no sufficient account has been taken of the increased costs to the court system, and indeed to the justice system, caused by SRLs, thereby leaving HMCTS and privately funded litigants to meet the additional costs resulting from the greater inefficiency in the system.

In its report, the Civil Justice Council recognised that pro bono legal services can only ever exist as an adjunct to legal aid and privately-paid legal services; it “cannot begin to meet the shortfall in provision that will be left by the proposed reductions and changes in legal aid.”
The quality and extent of pro bono legal services provided by the Bar are undeniable and something of which the Bar can genuinely be proud; so too are the services of those who administer the Bar’s pro bono services, the Bar Pro Bono Unit (BPBU). There are over 3,000 barristers registered with the BPBU willing to undertake pro bono representation and advice. The BPBU receives 1,300 applications per year; administration of the cases is undertaken by just seven people. Of these staff, just two are responsible for raising the funds necessary to enable them to provide those services.

In my inaugural speech, I expressed my desire to seek to ensure that the BPBU became independently financially sustainable. The BPBU is bound to face increasing resource and financial pressure. It presently costs about £300,000 a year to run. I invite each of the 15,000 registered barristers to contribute £30 per year towards the costs of the BPBU. I will ask those who distribute the PCF/MSF invoices if they will include as a clearly identifiable extra item, an additional, but entirely optional, sum of £30 on each invoice. I know that many of the Bar are hurting from cuts in legal aid and ever increasing costs of practice, and I ask those able to contribute more if they will do so. I also know that there are many who would wish to contribute to the pro bono services provided by the Bar, but are unable to do so, for a variety of reasons. This will provide those people with an opportunity to make a real and effective contribution to those services.

For the cost of one night out a year, we could ensure that the costs of the BPBU are met. At these difficult times, what better testament could there be to the Bar’s commitment to Pro Bono?

We congratulate Chris Grayling on his appointment as Secretary of State for Justice. Let’s hope he will listen to what everybody in the Justice system is saying. If he does, he has a real opportunity to make a difference, in the public interest.