The new Access to Justice Commission: Update 7 (The Bar Council)

The Bar Council gave evidence to the Commission on 9th February 2016.  It was represented by the Chairman of the Bar, Chantal-Aimée Doerries [C-AD], accompanied by:

  • Martin Westgate QC [MW], Chair of the Bar Council’s Civil Public Panel which sits within its Remuneration Committee.
  • Mark Hatcher [MH], Special Advisor to the Chairman of the Bar Council
  • Philip Robertson, Head of Policy at the Bar Council.

 Warning: Because unusually I have access to a full transcript, this is a long blog.  With two exceptions, I have summarised the questions but set out the answers in full (subject to very minor editing)

 

In her introductory statement, C-AD said:

“The Bar Council welcomes the Labour Party’s interest in, and commitment to, reviewing legal aid and, more widely, access to justice.

Access to justice, and the important role which the justice system plays in our democracy, is an issue which we believe has been somewhat neglected by Parliament over the years. We were interested in Lord Bach’s frank comments, at the Legal Aid Summit at Westminster in November 2015, that he was disappointed in what the Labour Party had to offer in the general election campaign on legal aid. So we welcome this commission and the review of legal aid as a new chapter which provides an important opportunity for dialogue between policy makers and their key stakeholders, of which the Bar of England and Wales is one.

The Bar Council looks forward to contributing to today’s proceedings. We realise that we may not be able to answer all your questions today, but we are committed to contributing to your review going forward.

We are committed to sharing our knowledge and expertise, and to working with all political parties, including the Labour Party, towards raising the profile of justice issues, including increasing the value placed on the justice system, and in the interests of widening access to justice.

We do so in the public interest.

We particularly value the opportunity presented by this commission to gather evidence and promote dialogue amongst those engaged in the justice system. Full and proper consultation, and evidence-based policy making, should be at the heart of any proposals.

Whilst we recognise the realities, and challenges, that austerity brings, there are important lessons that can be learned from recent cuts and reforms to our system of justice. The National Audit Office, the Public Accounts Committee and Justice Select Committee have each set out in some detail these lessons in painful clarity, based on the evidence they have accumulated.

In this introductory statement I wanted to focus on:

(i)        The value of justice and the role of the state;

(ii)       Justice and austerity;

(iii)      Re-building access to justice.

(i)          The value of justice and the role of the state

  1.  Justice, by which I mean a functioning, open and transparent justice system, which is accessible to citizens, with proper representation where necessary, underpins our way of life and protects everything we, as citizens, lawyers or politicians, work hard for. It is precious and is something which Government, and society, must be prepared to pay for. It should not be a luxury made available only to those who are able to afford it. We must get away from the idea that justice is a commodity that citizens consume as a matter of choice.
  2. It is because citizens have access to justice that big businesses pay their bills to smaller suppliers, that parents can get the right pay and leave from their employers, and that elderly people get the care to which they are entitled. When people use the courts and other legal avenues to enforce the law, it helps to ensure that we all play by the rules. A vital ingredient to ensuring stability in a democratic society is knowledge on the part of citizens, businesses, and other organisations that access to the courts is available. This is an essential ingredient both in the context of cases between the citizen and the state, as well as between private citizens and businesses. In blunt terms without access to justice being available to all citizens, we will all suffer. Ultimately, a lack of access undermines the democratic process and the glue that binds society together. We also know that a functioning and accessible justice system are important markers of markets into which businesses are keen to invest.
  3. The idea that people who choose to use the courts are being subsidised by the state is, in our view, misguided. It is rarely a choice in the real sense, but rather a need which drives people to court. Secondly, we would suggest that it should be the duty of the state to provide an effective and efficient system of justice accessible to all. Without this there can be no liberty or meaningful democracy, and no respect for our fundamental freedoms or the rule of law. Further, at the extreme, if justice through the courts is not accessible, then we have to ask ourselves how the underlying disputes will be resolved.
  4. One of the narratives which seems to have gained in traction during the more challenging economic times of recent years is that legal aid is a luxury which can no longer be afforded and that significant inroads can be made to it without any real detriment to society as a whole, or to those immediately affected.
  5. We have for some time been lobbying for a proper review by Government of the impact of LASPO three years on. This is absolutely critical, particularly given the lack of any proper evidence-based research before the LASPO cuts were introduced. We know from our Bar pro bono statistics that the unmet demand for legal assistance following the LASPO cuts is very real:

    In 2013 there was a 30% increase in family pro bono applicants at the Unit.

    In 2014 there was a 60% increase in family pro bono applicants at the Unit.

 I also know from speaking to members practising in family law, that Chambers have seen a huge increase in direct requests for pro bono representation. The Bar has always been committed to pro bono but pro bono cannot, and should not, replace a properly funded legal aid system.

6. Justice should be understood to be a fundamental right to be guaranteed by Government – in the same vein as the provision of health care and education. This is a strong message and one we send to jurisdictions overseas. We should not take for granted the protection of this fundamental right at home.

 

(ii)            Justice and austerity

 

  1. Financial austerity as applied to justice has put our justice system under unprecedented strain. Access to publicly-funded legal advice and representation has been severely restricted. Repeated cuts to court services, increases in tribunal and court fees, and decades of under-investment have produced a system of justice that we and others believe is no longer able to serve the public as it should. A few stark examples:

 Between 2012-2013 and 2013-2014 there were an additional 8,110 cases involving contact with children where neither party was represented.  In the same period there was an overall increase of 30% in family court cases where neither party had legal representation.

Government anticipated that there would be a large increase in people taking their cases to mediation. In fact, during the period 2012-2013 to 2013-2014 the number of cases going to mediation plummeted by 56%. This is one of the most striking statistics – the removal of legal aid, and hence affordable access to legal advice, led to fewer people resolving their disputes outside the court.

8. These few examples highlight the very real challenges posed by the removal of legal aid. But it must be remembered that the real cost to society is wider. The inability of families to resolve their disputes with proper representation may well have other repercussions and lead to increased costs elsewhere.

  1. A central concern for us has been the selective representation of cost by those in Government. As recently as 28 January 2016 the Lord Chancellor in a written statement stated, “at the start of this Parliament expenditure on legal aid per capita was more generous than any other EU nation or comparable common law jurisdiction.” Every justice system has different cost drivers and looking simply at legal aid in isolation we would suggest is unhelpful. Overall the cost of our system of justice is below the European average, and costs the British tax-payer less than €2 per week – that is the price of one cup of coffee.
  1. LASPO and other reforms reduced the legal aid budget from approximately £2.4 billion to £1.6 billion. That is a saving of £800 million. At about the same time in 2013 it was reported that the over-spend on two aircraft carriers was £800 million. The overall equipment over-spend was estimated at £6.5 billion.
  1. We recognise that we live in challenging times, but, as a society, we must be prepared to pay for justice and the price we pay for justice should reflect the value we place on living in a just and civilised society.
  1. This is not to say that the resources allocated to justice should be limitless. But it does mean that justice should be properly resourced to avoid a denial of justice. Expenditure on the justice system should be a matter of which government and citizens are proud.

 

(iii) Re-building access to justice

13.  A starting point is research and discussion. In particular, we are keen to see research into the consequences of the cuts to date. The Bar Council carried out research one year into the LASPO cuts and we are embarking on research into LASPO three years on, and we are also in the process of funding and commissioning research into to McKenzie friends.

14. But only the Government has the resources and access to data necessary to adequately study the impact of recent cuts and reforms – in other words, to assess the impact on citizens and courts, but also more widely i.e. the impact on society as a whole, including on health and social welfare.

15. We call on parliamentarians of all parties:

 To value justice as vital to civil society, not an optional extra, and publicly to reflect this in their statements.

To commit to ensuring there is access to justice for all.

To invest in technology and efficiency savings for the administration of justice.

To commit to thorough consultations and evidence-based policy making – take a holistic view of the potential impact of reforms the justice system, rather than a piecemeal approach.”

 

 Questioned by Commissioners

 Andrew Keogh:

Could I ask you about two separate topics. You touched upon delivering justice and you touched briefly on technology, but could I just give you a scenario, and see what you might make of it.  We have a person at a police station in Westminster who’s just been charged with an offence and is video-linked to a district judge sitting somewhere, let’s say Newcastle for the sake of argument.   Any problems with that do you think?  From the suspect’s point of view.   Or wider in terms of justice.  What I’m really getting at is that we talk about, in criminal terms, local justice, local courts, trial by local magistrates, local knowledge (although I’m not sure you can always achieve that).   I just wonder whether that’s something we should value.  If we have technology does it diminish justice or the defendant in any way, and does it make it harder for society to see what’s going on?  Any obvious impact?

The second question relates to funding.  The Bar has not been overly keen on One Case One Fee in the past.  Now, more generally with direct public access by barristers, and in particular the ability for barristers to carry out litigation on a case, is there any greater enthusiasm for the barrister becoming the legal aid holder, with a barrister being able to apply for a legal aid certificate as it were, or for representation or call it whatever you like, and take the entire fee for carrying out both the litigation  function and an advocacy function which is effectively what some solicitors are able to do by keeping work in house.  Is there any general view on that?

MW

I think one of the big concerns I would have on the first question is implicit in the way you put the question, which is about local accountability.  It’s one thing to have local justice but it has also got to be rooted in the local community, and if it’s not, if you’ve got a video link somewhere and no one can see what’s going on, that’s a very real injury to the idea of justice being delivered for the community.    But there is also always a difficulty, isn’t there, in the connection when people are communicating through video link, no matter how good the link is.   You see it when you’re interviewing witnesses on video link and you see it when a witness’s evidence is being received.  Something is lost.  That said, obviously there may be some cases … a lot of it will depend, I suppose, on the nature of the case.  There may be some procedural matters that can efficiently be dealt with in that way.   So I wouldn’t want to be too Luddite about it.

C-A D

On your second question, there’s no great appetite in the profession for One Case One Fee and that may not come as any surprise to you.   We believe that the system as it currently works with barristers predominantly doing the advocacy with some solicitor advocates, and with solicitors predominantly doing litigation is one that works well and one that produces efficiencies.  We welcome competition, but in terms of One Case One Fee there’s no real appetite at the Bar for conducting litigation.   We could provide you with the numbers of those who have applied[1].  They are very small and I suspect predominantly in areas other than those which would traditionally have been serviced that way through legal aid.  There are clearly issues with that because one of the things that makes the Bar, if I can put it this way, good in what we deliver (which is specialist independent advocacy services) is the structure that we have through Chambers which allows for very low overheads.  This allows us to have that specialism at relatively low cost, and if the Bar were to move substantially towards conducting litigation, something for which I have seen no real appetite for in any substantial numbers, we would certainly have to change the way that we work.  And I think we would lose something in doing that.

 

Questioned on when a hearing by video link might be acceptable

MW

I think it is quite difficult to think of a case where it would be appropriate, partly because you can’t tell what’s going to happen.   I can see, for example, that if something like a bail application is not going to be an issue there might be some virtue in certain procedural hearings being dealt with as the case goes through, but I can’t off the top of my head think of an example where I would advocate positively a video hearing.

 

Questioned about the merits of the proposed investment of £700 million on technology for the courts

C-A D

I suppose if one moves slightly sideways into the civil area it gives rise to all sorts of questions in relation to some of the most vulnerable people and the extent to which they would have access to technology and/or be able to use it and/or the underlying assumption that legal representation is not something which is necessary to assist them in the process.  They’re certainly matters that I would think are a real concern…

I would caution that any decision or proposal needs to be based on proper evidence and on consultation such as this.  One of the concerns we have with the Briggs proposal specifically is the quite fantastic speed with which it’s been advanced.  Admittedly it is an interim report which is now being consulted upon, but we would caution a slower pace and proper evidence-gathering.  We have set up a Committee to look into it and to address some of the questions you have raised. Reading the report initially our concern is very much that which you touched upon, the fact that the report effectively assumes that legal representation is not something which people need.  The basis of the online court is that lawyers are not necessary.  One could understand that in certain cases individuals may not require lawyers, but to set up a system that effectively operates on the premise that you don’t need a lawyer to help you, while at the same time recognising that at the top end of our market our legal system is thought to be one of the best in the world, if not the best in the world: the Lord Chancellor and others have said this.  So in essence what you’re doing is creating or accepting a two-tier system for citizens right at the outset rather than even trying to create a system that allows for access across the board.

There are other avenues, I mean for example the Report spends very little time dealing with the Small Claims Court.  In some areas of work the Small Claims Court is a very efficient way, very effective way of dealing with claims.   I think to come back to your question in the round we would want further consideration as to which areas and where the use of I.T. can be effectively used without actually limiting the sort of access to justice that we are concerned will result from that.  I have to say my own practice has been an area where I.T. has played a role, but even there it’s recognised that there are limits and that I.T. systems cannot answer all of our problems.

 

Questioned about the best way to avoid problematic issues over the listing of criminal cases

C-A D

My understanding is that in many of the reforms that are being introduced under better case management – and our Criminal Bar Association has certainly promoted this – the aim is, among other things, to deal with precisely that issue so that there will be greater certainty as to hearing dates.  I think you’re right to flag that.   This certainly remains a problem both for defendants themselves and for the lawyers involved in the system.  The sort of uncertainty that exists around hearing dates is a problem and continues to be a problem, but we hope that better case management will begin to address that.  We’re obviously in quite an early stage at the moment, so that’s probably a matter for reporting back to you and seeing to what extent the changes there do have the intended effect.

 

Questioned about the effect of the cuts on the diversity of entrants to the Bar and the ways they are encouraged to have a legal aid practice

C-A D

Taking the first point which is to do with diversity.  I have no figures or statistics I can give you, but based on fairly constant anecdotal evidence that I have been given, it’s fairly clear to me that the cuts to legal aid have had an impact both in terms of intake and in terms of the ability of people to continue to progress once they have qualified.  If I can put it like this, I came to the Bar 25 years or so ago.  When I came, education was for free, my Bar course was relatively minor in cost, I think it was about £3,000, and the kids that we’re now trying to attract come with a huge burden of university debt.  They then come to the Bar vocational course that costs about £17,000.  Even with the £5 million that the Inns plough into scholarships it’s a very serious challenge.   So the first thing is to attract them and encourage them to take that risk.  It is a risk as we all know.  Once you’ve qualified you still need to get a tenancy, you then need to build a practice, so we are concerned about that.

Secondly, we are concerned about the impact of the cuts on the ability of barristers to continue to practise, and obviously particularly in relation to diversity where we’re trying to encourage social mobility and diversity, in particularly in terms of male and female and some of the challenges that come with taking career breaks, so I think there’s no doubt that it has had and will have an impact.   The greater challenge is what we can do about it.  I’ve mentioned the Inns and the scholarships that we make available.  There’s been much discussion – although this goes beyond my remit – about making some of the scholarships available for the early stages of practice: in other words, not just for qualification, so that you funnel some of the money towards the lower earning as is now the case through legal aid, to make it viable for youngsters to move in that direction and continue to practise.

What are we doing to encourage those qualified to consider legal aid?  Well, I suppose we’re promoting practice at the Bar at the heart of the profession.   I can say this not as a criminal practitioner nor a legal aid practitioner, although I have to say that 25 years ago there was, remarkably, legal aid in my area of work which is Construction Engineering: it is surprising how times have changed.   I can say this – that at the heart of the Bar is the independent criminal practitioner.  That is in a way the life blood of my profession.  That isn’t to say that the commercial Bar and the rest of the civil Bar aren’t incredibly important to the maintenance of a healthy justice system, but the independent criminal Bar is effectively what stands between the citizen and the state in very real terms.   From my point of view and from the Bar Council’s point of view we actively encourage young aspiring barristers to look for practice in that field, but it’s challenging, and the sort of stories I’ve heard are of practitioners going on secondments for six months in order to fund the six months of their practice that is legal aided.  So there are issues where people really are struggling to survive on the basis of current funding.

 

Questioned about the Bar’s approach to the need to provide minimum salaries for those who are going to do predominantly legal aid pupillages

C-A D

There’s obviously a compulsory obligation to pay pupillage which wasn’t historically the case…  There is a basic minimum.   Beyond that I think it’s challenging.  What I was talking about is really about petitioning the Inns. The chambers that do that type of work are probably not necessarily going to be best placed for that type of support.

One of the areas we’ve been looking at is the Inns’ funding: not taking it away from those who need it to qualify, but perhaps moving or redistributing some of it towards those early stages which I understand is how some of the scholarship money used to be spent.  I know this is something which Lord Judge talked about when he was Treasurer of Middle Temple.  You can then enable someone not just to qualify: you actually set them up for the first few years, and I can see a lot of purpose in that.

 

Questioned about the Bar’s views on the availability of legal aid for inquests

MH

I think the honest answer to your point is that we are operating in a contested space for spend on legal aid.  To be candid, the Bar Council’s priority has been to address the mainstream issues arising out of LASPO in the criminal legal aid environment.  That has been very much the focus of our attention, but behind your question is the complete imbalance in power between the respective sides: the Ministry of Defence can hire the best and the brightest at the Bar to advocate their cause, and that is not an option that is available to many families who find themselves in this sort of situation.  So I think that if it’s put to us that we should consider this again in the context of the priorities that we’ve got, it will be considered very carefully by the Bar Council in its Remuneration Committee in the first instance.

C-A D

If I can add to that, I was just going to say that I am also aware that this is an area where pro bono lawyers appear.  I’m certainly aware of colleagues, both barristers and solicitors, who act pro bono.  In fact, one was telling me recently that a solicitor and a barrister acted for over three weeks on an inquest in a Ministry of Defence case.  That’s a huge commitment to expect people to make…

MW

There is another aspect of that, of course.  There is also the availability of costs recovery in the event of a civil claim that follows on from an inquest or from other cases.  It would be good if that were strengthened.  At the moment it’s very much touch and go if you have a subsequent claim how much of the inquest costs you can then recover against the people who are responsible for the death.  It is always two sides of that coin with legally aided work: many practitioners can only carry on in business because of the cases where they recover in the event of success.  That needs to be thought through more rigorously as well, not just in inquest cases but more generally.

 

Questioned on whether the Bar Council has any concrete suggestions on ways to make the criminal justice system and/or the civil justice system more efficient, and on whether senior members of the Bar could do more to uphold the values mentioned in the Bar Council’s opening statement

C-A D

I would prefer to come back to you on the question about concrete recommendations in order to do justice to it.

Looking at the second question in terms of the legal profession sharing the pain, I think there’s a real perception issue here.  It’s something that’s really struck me in the last year or two coming into this job which is – and obviously I’m primarily interested in the Bar, but I would say the same about solicitors – quite how much the professions actually do on a pro bono basis.   You’re right to draw attention obviously to those who do legal aid and the low levels of pay, and to the areas from which legal aid has been withdrawn – for example family cases –  I have countless stories literally of young family barristers doing work pro bono, and the statistics I gave in opening really demonstrate that, but the story doesn’t stop there and what’s really struck me is quite how far that commitment goes.   I would suggest that the Lord Chancellor’s comments on this particular topic were perhaps made without the sort of evidence gathering that I was talking about beforehand.

One of the things I’ve done this year is to set up a Pro Bono Board at the Bar Council with the specific aim of collating information about the extent of our commitment, because I realise we have the Bar Pro Bono Unit and the solicitors have something similar, and we have the Free Representation Unit, but the schemes go way beyond that.  If I were to say to you that not a week passes in which someone doesn’t tell me about a scheme that has been set up somewhere in the country, I’m really not exaggerating.   Much of that growth is obviously driven by the severe cuts.

I take the point and I think it is a very valid one that there is a real issue with how much of that we can do before we start to mask the real challenge here or the consequences.  Having said that, I think the profession has always had a commitment to pro bono and that is to be commended.  What I would like to do is to be able to come back to you in the future – and that’s what this Board is doing-  and tell you how much we actually do, how much the commercial Bar contributes, what a set of construction law chambers is doing, so as to give you a real sense.  In the inquest I was telling you about, just by way of example, the barrister who did that was a QC in a construction and professional negligence chambers and the solicitor who was doing it comes from one of the top City law firms.   Not their daily work but they chose to give up 3 weeks to do that type of work.  So the first thing is collating the information, and the second thing – and you’ll forgive me if I wear my so-called trade union hat – is that I want to talk about it more because I think the profession understandably is really bad about talking about what we do.  There are all sorts of very good reasons for that, but we need to get an understanding into society more broadly as to what our commitment is to justice and how it goes beyond money.  One of the things that troubles me is that we are seen increasingly not as lawyers who operate within the justice system performing something important for society but actually as businesses, not even as professionals.  So that shift I think is a fundamental one because if we don’t achieve that, society, I think, will have little sympathy and understanding for the importance of actually what we’re talking about here.

MW

I was going to answer the first question about concrete proposals until the rider “that would make things more efficient” was added, because you can’t look at legal aid and you can’t look at access to justice and costs without looking at costs liability and costs recovery.  So the single biggest suggestion I would have, and it steps outside legal aid, would be to revisit Sir Rupert Jackson’s proposals about one-way cost shifting, so that people are less terrified about incurring the other side’s liabilities in the costs jurisdiction.  That to my mind was a great missed chance.  I’m not surprised the chance was missed but the suggestions that he made were ones that ought to have been taken further forward, particularly in the area around public law for example.   That would be my main concrete proposal.   I’m afraid I can’t make any promises about its efficiency savings.

 

Questioned about the best way to reframe the public debate so that those who are not rich or very poor may be able to obtain access to justice

C-A D

I think the first way – and perhaps it’s the easiest one to identify and maybe it’s actually the hardest one to fulfil – is education.  I fundamentally believe that we have failed to educate our society and by that I mean us as lawyers, if you excuse me those of you who are politicians, to educate our society as to why a justice system matters.   In other words, there is an understanding about health and education but there should also be an understanding about the justice system.  It’s not just understanding that any of us may need representation and may be in the courts one day, but it’s also about understanding why having an effective justice system matters for those who aren’t actually in it, and who maybe will have the good fortune to be born and pass away without ever having darkened the door of a court…

It should be done through schools and universities. fundamentally educating people about what justice is, why it matters, how our system functions, taking them into court.   I was involved in a Bar placement programme which we run, which is primarily for social mobility purposes so as to encourage a wider access to the profession.  I was speaking to kids who are 16/17 from schools who perhaps wouldn’t traditionally have had that opportunity.  We give them 3 days’ training in advocacy, they sit in chambers, they go into courts, and the feedback you get from those children is fantastic, not just in terms of opening their eyes but actually in beginning to get them to understand what the justice system is and why it matters…

The Bar Council has limited means, but we’re always willing to do more on that front and that is something we fundamentally believe in, but I think actually that’s a matter for the state, for Government.

 

Questioned about the possibility of making education about the justice system a compulsory school course for 15-16 year olds

 MH

You may be thinking of the public legal education responsibility that the Legal Services Act refers to amongst the objectives that the approved regulators (of whom the Bar Council is one) might be addressing more than they are at the moment.  That’s one approach.   We do make a significant contribution each year to the work of the Citizenship Foundation in the national mock trial initiative that we run.  This is a fantastic way of communicating the experience of being before a court and advocating a cause and contemplating the issues at stake.

Going back to the challenging question about PR, I think too often the case for valuing justice is put by members of the legal profession whose comments are very often discounted because “they would say that wouldn’t they?”   The challenge, I think, for the representative bodies in our profession is to broaden the debate out and to encourage those who are the recipients of the services that we provide to speak of their experience and the benefit they have had.

It’s not easy, but the best advocate in a way in this case would be the third party advocate who is endorsing, hopefully, the quality of service that they’ve received from their advocate at their time of need.   That is something that I think we could all do more to address as national bodies in terms of understanding the consumer experience and getting that represented, because there are some very powerful stories we know about where we’ve made a real difference.  We hear that from our pro bono colleagues:

 “But for the intervention of the law at this particular stage, my life would have been in complete pieces”

That kind of narrative.  Speaking personally, I’m sure we could do much more of this.

C-A D

One of the things we’ve been trying to do over the last year is to meet some of those people who have made use of the Pro Bono Unit.  What has really struck me is (1) the very clear understanding as to the benefit that they have derived from representation and (2) (and this was an interesting one, from the cases that went to trial and costs budgets were nonetheless prepared), what was interesting was often the feedback I was given was that they were surprised how reasonable the fee was of the barrister who was representing them on a pro bono basis.  I thought that was quite surprising because I think one of the challenges we have is that there are definitely issues in terms of affordability of justice, but there is an also an issue of perception.  I think more people could afford legal representation through solicitors and barristers than they do because they don’t think they could afford it.   So it’s a sort of double PR issue: both the importance of justice but also realising – and I think particularly following the LASPO cuts that’s certainly something that’s come back to me quite often – that even people who are still in scope assume they’re not because there was quite a lot of publicity surrounding the LASPO cuts.   So I think it’s education as to what is available as much as anything.

 

Questioned as to whether there are areas of work in which the specialist advocacy skills of the Bar are not needed

C-A D

My instinctive reaction to that, and I’d want to think about it, is that they are needed across the board, because I think one of the challenges is to generalise.  Whether a case before a tribunal or before a court is suitable would depend on the facts and the legal argument in the particular case.  I think it’s quite dangerous to say “well over here you don’t really need the full package and over here you do.”  We’ve seen that to some extent in other debates surrounding legal funding and the funding of the courts, so I think if you recognise the value of proper representation, then it should be available across the board.

MW

In one sense you’re drawing the wrong lesson aren’t you?  If you say, “well, for tribunal cases often you don’t need representation therefore you may not need it elsewhere”, it goes the other way, I think.  You may need to re-think which are the areas of tribunal cases where representation should be more prevalent.   I can’t put my finger on it at the moment, but certainly there was some research – it’s quite old now – about relative success rates in employment tribunals whether you were represented or were not represented, and the difference in outcome was enormous.   If you look at the work of the Social Security Chamber and the complexity of benefits law, then at least when you get to the Upper Tribunal when you’re arguing about pure points of law there should be representation there, for example.   So even if it doesn’t go the whole way, I think you need to look more carefully at which tribunal areas need to have representation.  And advice [by way of legal help] prior to representation.  That is the great gap now.

 

Questioned whether lawyers’ clients would be better advocates for justice if lawyers treated them as participants in the process, rather than as subjects of the process

C-A D

I suppose I’m bound to say there’s always room for improvement [in the way lawyers act towards their clients].  I’d be foolish if I didn’t say that.   I don’t personally share the experience that you’re describing but it’s certainly something I can go back and speak to my members about.  Generally, I think that the profession is a very modern profession.   It’s a profession that has moved with the times, and certainly my experience isn’t – and not just my personal experience but I’ve been visiting Crown Courts and other civil courts and certainly my experience is not of the client, if I can put it that way, being treated as anything than really as the focal point because at the end of the day that’s what we’re there for.

But if you’re suggesting there are problems it is always something we could look at by way of education.  My feeling is that the profession has moved in that regard quite substantially, and actually my experience is that generally speaking if you speak to people who have been through the process, particularly the trial process, they advocate the benefit of what they’ve seen certainly in the civil area.   One of the interesting things – and it’s anecdotal but I’ve certainly seen it several times – is that clients who don’t see the full process (and many choose not to) are more likely to complain even though they’ve had a good settlement than clients who have actually seen justice in action and had their day in court.   In some ways I find that quite comforting because I think that when people get as far as the door of the court the experience is not always but is often a positive one within the remit of the fact that they are in court in the first place.

In picking up the point that we need to reach out to those people and to try and encourage them to tell their story, if I could just anecdotally come back to the Bar placement schemes we are running, one of the things that struck me – and it isn’t a direct answer to your question – was that one of the students who won the essay (we were requiring them to write an essay about things they had learned) told me, or her essay told us, how what she had learned in those three days was not just about the justice system, but that she had also learned another lesson: that you could disagree with another person without shouting at them.   It really struck me because she had not only learned what our system is about and that you can take your dispute to court and have it adjudicated upon, but she had also learned another lesson.  That sort of comes full circle in terms of the importance of the PR exercise that we have and how effectively it could go beyond simply explaining our justice system.

 

Questioned about the Bar Council’s present stance on the desirability of creating a Contingency Legal Aid Fund (CLAF)

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As you rightly say it’s been a topic which we’ve supported for many years going back, I think, way back when Heather Hallett was Chairman of the Bar.   Guy Mansfield has definitely been a mover in that.  We welcomed the speech and we’re sitting down with the Law Society and CILEx and putting together a working group.  We are going to look into it.   The fundamental question is: is it financially viable? will it work?   The concept is one we certainly commend, but the real question – and it is that which has stopped us in the past –  is: will the market sustain a CLAF?  We’re hoping to work together with some of the funders in the market as well to get some hands on experience if I can put it that way, beyond lawyers…

I think the challenge, I’m bound to say, is the seed corn funding and then whether it will continue – whether it would be viable financially after that.  Those are the two main areas.

It has worked in some jurisdictions so we’ve always been a supporter of it.   I’m only being cautious because there have been issues with it in the past, but in principle we’re enthusiastic if we can make it work.

MH

Just to add a footnote if I may on the CLAF point.   At the Bar Council we did invest a significant amount of resource, both time and money and interest in the concept.    We engaged specialist economic consultants to look at the financial liability of a CLAF scheme and the preliminary results were encouraging.   We pressed the pause button in 2012 when the LASPO Bill was going through Parliament for tactical reasons.  We didn’t want to let the Government off the hook and to look towards a CLAF as the solution to all our problems, but the time is right for all sorts of reasons – and Rupert Jackson articulates them very well in his speech the other week.  As Chantelle has indicated it is an idea whose time has come round again.  So we are actively engaged with the Law Society and CILEx and we hope to produce some results by the end of the year.

 

Bill Waddington:

I am going back to this PR point, because I do think this is important.  I think you hit the nail on the head when you said that as a profession we are very good communicators in the job that we do, but when it comes to communicating to people outside the profession at what we do, we’re terribly bad.  There are two reasons for that, (1) because we’re bad and (2) because the media who we actually need to promulgate the good stories about justice are generally speaking not very interested when lawyers are talking to them.   That said, my experience in the three years before this last General Election when what we were trying to do was to make justice an election issue – a basic human right as important as education and health – I have to say that no politicians were interested.  The Guardian, as you might expect, kicked it around a bit, and we did run a ballot through a PR campaign.  Much to our surprise something like 67 or 71% of those who answered the questions felt that justice was as important, if not more important than the National Health Service.  So the public, certainly in that particular ballot, did think that it is extremely important, but it is up to the profession to get the message out there not just by the educating of children and taking them to court and showing them mock trials and so on, but getting the general public to realise that actually justice is an extraordinarily important concept.  There isn’t any question there, but I just wondered if anybody has got any better ideas as to how we go about educating the media that this is actually quite an important topic.

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I will think about this and write back to you, if I may, but if you’ll excuse me this is a very quick response and not as fulsome as it probably should be.  There are plenty of stories out there today, some further away from home, some closer to home, that really highlight the importance of a justice system.   If we look beyond our own borders and look at what’s been going in China and Hong Kong recently in relation to some of the arrests of some of the human rights lawyers and some of the booksellers in Hong Kong, these stories are ones that I sometimes feel are reported across the Press widely but not always necessarily in recognition as to what we have here.  I do think that sometimes we should focus value on what we have, perhaps by context of real life stories, rather than taking for granted that certain things would not happen closer to home.  That’s a loose answer but we’ll certainly take that away and come back to you.

 

[1] It was believed that there are about 230 – 240 barristers across the whole profession with a litigation extension to their practising certificate.

2 thoughts on “The new Access to Justice Commission: Update 7 (The Bar Council)

  1. Pingback: The Bach Report: (2A) Two speeches at the launch of the report – Henry Brooke

  2. Pingback: The LASPO Review: (1) My recent talk about the Bach Commission’s report on the Right to Justice – Henry Brooke

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