Chairman's Update - 19 February 2015

19 February 2015

Although I have set out my aims for this year in the course of an interview with Counsel Magazine, I wanted to make it clear what they were to those who had not seen it.  In addition, there are a couple of issues that have arisen since the publication of the interview and I thought I should bring those to your attention.

My initial aims remain the same:  we simply must sort out criminal legal aid funding so that we are not driven to a repeat of last year's strife.  As I have repeatedly emphasised to Government ministers and officials, all that barristers want to do is to get on with their jobs and to be paid a fair fee for the effort, responsibility and time involved in providing top quality representation for their clients.  Anything else just gets in the way of that objective, which should surely be one shared by the profession and the Government alike.

Second, I am committed to doing everything I can to bring home to the Government, the disastrous effects on access to civil justice caused by LASPO.  There have now been two hard- hitting reports about its effects.  The first was published by the National Audit Office on 20th November 2014.  The second was that of the Public Accounts Committee, one of the most important and powerful of the Commons Select Committees, whose report was published on 19th January 2015.  We await the publication of the report of the Justice Committee, which is imminent.

I can do no better than quote the summary at the head of the Public Accounts Committee report.  This is what they say:

"The Ministry of Justice (the Ministry) is on track to make a significant and rapid reduction to the amount that it spends on civil legal aid.  However, it introduced major changes on the basis of no evidence in many areas, and without making good use of the evidence that it did have in other areas.  It has been slow to fill the considerable gaps in its understanding and has not properly assessed the full impact of the reforms.  Almost two years after the reforms, the Ministry is still playing catch-up: it does not know if those still eligible are still able to access legal aid; and it does not understand the link between the price it pays for legal aid and the quality of the advice being given.  Perhaps most worrying of all, it does not understand, and shows little interest in, the knock-on costs of its reforms across the public sector.  It therefore does not know whether the projected £300 million spending reduction in its own budget is outweighed by additional costs elsewhere.  The Department therefore does not know whether the savings in the civil legal aid budget represent value for money."

It is a truly lamentable situation that the well-being of some of the most vulnerable people in society is being affected in this way.  To those of us whose whole career has been spent in analysing evidence and planning a case based upon it, it is inconceivable that such large decisions could be taken without evidence and, where it was available, in wilful ignorance of it.

But there is another worrying aspect of all this.  The Ministry is embroiled in further changes to the contracts of solicitors in criminal work and, of course it proposed substantial cuts to advocacy fees. We have long believed, and we have told ministers and officials as much, that they simply do not understand the effects of their changes to the system.  This report lends added weight to that proposition.

Looking to the future, we can only hope that the Government learns from its mistakes and that it does not repeat the errors of the past.  We make it clear, every time we speak to them, that the system of justice we have is the envy of the world.  That is not an idle boast.  It underpins the primacy of our jurisdiction astheplace in which to resolve trans-national disputes.  Access to justice and the maintenance of a thriving, independent Bar are essential elements of adherence to the Rule of Law.  It is part of our core mission to bring this reality home to the Government.

The shadow Lord Chancellor, Sadiq Khan recently announced that, should a Labour Government be elected, they would review the dual contracting arrangements for solicitors.   That is, of course, very welcome.  However, there was nothing in the statement about the preservation of fees for the Bar.  We are seeking to understand what, if any, proposals he has on this issue. 

I now turn to the final issue I want to deal with in this Newsletter and it is the Global Law Summit.  When this event was announced, we already knew that some people would feel unable to support it.  The very fact that there was a link to Magna Carta caused problems, which we fully appreciated.

However, the Bar does not merely comprise publicly funded practitioners.  We represent many practitioners who carry out international commercial, chancery and arbitration work together with many other areas of law.

Given the breadth of nations represented at the Summit together with the importance of many of the delegates, it was inconceivable that the Bar should not be represented.  There is an afternoon of high quality events at the Rolls Building put on by COMBAR, Tecbar and the Chancery Bar Association.  We surely must support our colleagues in relation to those events.  In addition, there is a session on whose responsibility it is to ensure the Rule of Law.  Tony Cross QC, the Chairman of the CBA is speaking in that session.  Knowing Tony as I do, he will not be pulling his punches.

I wish that more sessions discussing accessibility issues, for example, had been scheduled.  But it is a great opportunity for Tony to put the case for the publicly funded Bar before an audience of delegates from all round the world.  Put simply, if no-one is there to put that case, it goes unheard.  No-one who has followed events over the past year could possibly think that we agree with the changes brought about by LASPO and other legislation whose effect is to reduce access to justice.  The fact that we are attending the event does not signify a U-turn on our principled stand against these changes.  Still less does any participation in the event connote any sort of endorsement of them.

To summarise, we are there to lend support to a section of the Bar for whom this event may well provide links to new work and, whilst we are there, we are using the Summit to deploy our arguments for opposing any fetter on access to justice and thereby, the Rule of Law.

 

Alistair MacDonald QC
Chairman of the Bar