Although not yet in office, I have been asked many questions about what I expect the next year to hold. Many of the issues which have dominated the past year will continue to do so: new business models is an obvious example, public funding another. But by definition, the future must be a mystery. And it is not until you are actually in the job or facing the challenge that the real effect becomes clear.
So it is a waiting game, similar to the one we have been playing for some months now. We have heard the dire warnings about how severely Government spending has to be reduced, and predictions have been made about the significant percentages by which budgets will need to be cut. It is understood that the Government has to take drastic steps.
The Green Paper
It is only in the past few days that the potential impact on the justice system has become apparent. Now we have the Green Paper. It is still a shock to see it in black and white. The paper claims to conduct the most radical review of legal aid and the provision of legal services in the history of legal aid. These proposals are wide-ranging and their impact will be profound. Ken Clarke has described the consultation as “an opportunity for fundamental reform”. Legal aid may be withdrawn from whole areas of practice: in family and in social welfare. There may be significant reductions in payments across the board and, in the case of advocacy in criminal cases, these come on top of the 13.5 per cent cuts imposed by the statutory instrument introduced by the last administration on the day it called the election (which also extended the graduated fee system to cases lasting up to 60 days).
Some proposals were expected, such as the reduction in scope in ancillary relief in family; some were a complete surprise, such as the single fee in elected committals from the magistrates’ court which plead in the Crown Court, and the reduction in category of murder trials to the serious sexual offences level rape. These are merely examples from within a wide ranging consultation.
There is a danger that these proposals will harm more than they achieve. We are concerned about their impact on access to justice in:
- the withdrawal of legal aid from vulnerable families with matrimonial and social welfare issues;
- the risk that further reductions in criminal legal aid payments will finally drive away good quality practitioners;
- the risks that implementing some of the Jackson proposals may lead to denial of access to justice; and
- the effect on the real achievements in the diversity profile of the Bar.
The Jackson Report was greeted with different reactions at the Bar. The Report was not a Government initiative and it was not clear to what extent the Coalition Government would seek to implement its recommendations. In an initial response to Jackson, the Bar Council knew it could speak with one voice on case management and cost management but not on Conditional Fee Agreements (“CFAs”). So a separate consultation on funding was suggested and this is what has happened. CFAs have provided a means of access to justice where there has been an absence of funding. Those practising in this area have made a good case for their continuation but recognise that changes may be needed, and the Government appears to see that some flexibility may be necessary.
Valentine’s Day massacre?
So this is a significant challenge to many parts of the Bar. Its impact on the junior Bar in particular may be severe. Responses are to be made by 14 February 2011. Clearly there is potential for sectarian interest: one area of the Bar may feel that it should bear less of a burden than another, but this will not help in the long run. We must meet these challenges as one.
The Bar Council has appointed Stephen Cobb QC (Chair of the FLBA) to chair a Bar wide group with Max Hill QC (Vice-Chair of the CBA) and Chris Hancock QC (Chairman of COMBAR) to support him. They will be preparing a report on behalf of the whole Bar. They will be highlighting the dangers and perverse incentives that may be created by these proposals. I encourage you to assist them in that response.
More to fear than fear itself?
Necessity is said to be the mother of invention. We will survive by looking ever closer at other ways to do that which we do best – to provide high quality legal services. In November in Manchester, the Bar’s own direct access training course was launched. It is likely that with the reduction in legal aid there will be more clients seeking to come to the Bar directly. Seeing the emphasis on mediation in the Green Paper I have asked the Member Services Team to design a scheme for mediation training with a view to Bar Council accreditation in due course. The opportunities for working abroad are constantly being pursued.
Now is the time to show the resolution and resourcefulness for which the Bar is renowned. None of us can know what the next year will hold, but we will approach it with vigour and an open mind and we will succeed.
Peter Lodder QC; Bar Chairman