24th Annual Bar Conference – 2009: Access to Justice – Justice for All?
Speech by
07 November 2009
Chairman’s Opening Speech: 9.30am, Saturday 7 November 2009
Fiona Jackson has given me 20 minutes to survey the state of access to justice in England and Wales in 2009. It is not long, but it is 5 minutes longer than Andy Warhol would have given me. In that time I want to touch on two themes, and finally say something about the future. My two main themes are:
(1) firstly, the state of our legal aid system in the sixtieth anniversary year of its creation; and
(2) secondly, the contribution which the current regulatory reforms of the profession should be making to maintaining and increasing public access to justice.
1. Legal Aid in 2009:
In the past few months the Legal Services Commission has been at great pains to have us “celebrate” legal aid’s sixtieth birthday. But once the candles on the cake had been blown out, it was clearer than ever that we had been left in the dark. In all the party euphoria the Commission generated, it overlooked those fundamental principles which govern a social democracy’s obligations for the welfare of its citizens. These principles were espoused especially strongly by refugees from fascism reaching our shores in the late 1930s. Today, more than ever, at a time of deep economic recession and confronted by laws of ever-increasing complexity, we need to remember those principles – and be sure that we apply them in practice.
The principles underlying the creation of the legal aid system:
Back in 1943 one of those refugees, the academic Dr E.J.Cohn, published a comparative study of legal aid in the Law Quarterly Review [59 LQR 250]. Its contents deserve to be remembered: determined that legal aid should never become the Cinderella in our society, he argued that “legal aid is a service which the modern State owes to its citizens as a matter of principle.” The principle, of course, was that for citizens precluded by circumstances from access to the courts, the rule of law was as good as non-existent. The state’s duty was therefore to make the machinery of the law work for rich and poor alike. Above all, Dr Cohn rejected the notion that legal aid should ever be “a favour bestowed upon a poor applicant by members of the Bar”.
Like Dr Cohn, Lord Simon, the Lord Chancellor who in May 1944 set up the seminal Rushcliffe Committee, saw legal aid as being as much a part of a just welfare state as health care and social insurance:
“If we make efforts to get a better medical service for people who are ill, had we better not see whether there is anything to be done about better legal advice and assistance for those who have the misfortune to be involved in a legal dispute”.
The genesis of the 1949 Act:
As the war ended in May 1945 and the nation celebrated VE Day, Lord Rushcliffe reported with the recommendations which eventually found their way into legislation. First, of course, the post-War Labour government set up the National Health Service whose 60th birthday we celebrated last year, and then a year later came the Legal Aid and Advice Act 1949. For Clement Attlee, the barrister son of a solicitor, the NHS and legal aid were twin pillars of the welfare state. But is that how we see them today, or has legal aid become the Cinderella Dr Cohn feared, and now been excluded from the Ball?
Family Legal Aid:
There is wide recognition that effective legal representation is particularly critical in family law cases. Indeed, over 20 years ago in Airey v. Ireland [1979] 2 EHRR 305 the European Court treated as a breach of article 6(1) the refusal of legal aid to a woman seeking judicial separation in the Irish High Court, because of the complexity of the proceedings, the need to examine experts and the emotional involvement of the parties. Obviously these factors will be present in many, many family cases, and they require experienced advocates to deal with them.
Yet it is these experienced family advocates who are being driven out of publicly funded work. This is not mere robing room anecdote: it has been statistically demonstrated in the study by King’s College’s Institute of Policy. Even before the current round of cuts one in four barristers had turned down at least one case in the preceding year because of the uneconomic fees, and over 80% indicated that in the event of further cuts they would limit their legal aid work.
To make matters worse, able entrants to the profession are being deterred by these serial cuts in fees from doing the publicly funded work their social consciences would wish them to undertake. In May this year Baroness Butler-Sloss told the House of Lords that she advised Bar students not to do family work. Coming from a former President of the Family Division, what would possibly be sadder – or more disturbing
More than ever today, with the number of care cases increasing and with the current chronic shortage of CAFCASS guardians, there needs to be available a corps of expert advocates to conduct these exceptionally challenging and demanding cases. Not only did the NSPCC throw their weight behind the Bar on this issue, but the President of the Division, Sir Mark Potter, warned in his Hershman/Levy lecture in July that already courts up and down the country were suffering the increased difficulties and delays inevitable when litigants act in person. These problems all cost incalculable sums of public money, which a proper system of legal aid can save.
Threatened cuts to legal aid:
Twice in the past year, the Family Law Bar has been confronted by the Legal Services Commission with proposals for fee-cuts, with a wholly inadequate assessment of the likely impact of those cuts both in terms of the willingness of practitioners to do the work and in terms of the effect on women and BME practitioners. No wonder that the LSC was so severely criticised for the flaws in its process by the Commons Justice Committee in its Report in July; and no wonder the Committee concluded that in the relations between the Government, the LSC and stakeholders, there needed to be “a fundamental change of attitude on the part of the Commission”. Would that there were any evidence of that taking place. Instead the Government has been reduced to commissioning an inquiry by Sir Ian Magee, a former official in the Ministry of Justice to examine, amongst other things, the way the LSC is administered and the nature of its relationship with the Ministry.
This has never been about church mice trying to turn themselves into fat cats. As we know from Baby P and earlier cases like Victoria Climbie, this is about children themselves, and the Chairman of the LSC, when he spoke to the Bar Council, was wrong to dismiss this as no more than an appeal to the emotions. In the words of the Chairman of the Commons Justice Committee, Sir Alan Beith:
“Family legal aid constitutes a children’s service, to which they have as much need and right as health, education or social services”
Criminal Legal Aid:
Turning from family legal aid to criminal legal aid, we can only conclude that this is a government which will never learn. As Disraeli once said: “you can tell a weak government by its willingness to resort to strong measures”. The very omissions for which the LSC was so harshly criticised in relation to family legal aid have been repeated all over again – this time by the Ministry of Justice in relation to the cuts in criminal defence fees proposed in their Consultation Paper of 20th August.
As I have repeatedly said, it is the very height of perversity on the part of government to think that the anomalous differential between prosecution and defence fees stemming from the fact that Lord Carter’s brief did not extend to prosecution fees should be eliminated by slashing the Carter-approved advocacy fees by as much as 23%, said to be the difference between the two. In the words used by Gillie Gray in 1986, the year the Bar took the Lord Chancellor to court, it is a proposal which has been met by the profession with “unanimosity” – not surprising, when you consider that the Carter fees were effectually taking the Bar back to the level of fees in 1996.
The Government has now torn up the Carter settlement, and most remarkably of all, suggests that this is “necessary”, and I quote, “regardless of economic circumstances”. In doing so, they have shamefully twisted the words of Peter Lodder to the Justice Select Committee, when he said in October 2008 that the Criminal Bar Association was “concerned at the marked discrepancy between the fees paid to prosecution advocates and defence advocates in the Crown Court”. They know perfectly well what he meant. In the months since Carter we had been negotiating to raise CPS fees, not cut those for the defence.
The betrayal of the ideals of 1949:
There is every reason for the profession to feel betrayed, but what matters is that the public has every right to feel betrayed too. We are now heading for precisely that which the midwives of legal aid wanted to avoid – two standards of access of justice dependent on the ability to pay. When the wolf is at the door, we can no longer be accused of crying wolf.
2. Reforms to Regulation and Access to Justice:
Less than a fortnight from today, on Thursday 19 November, the Bar Standards Board under the Chairmanship of Ruth Deech will be conducting their historic meeting to decide whether to lift the ban on partnership in rule 205 of the Code of Conduct so as to permit barristers to join barrister-only partnerships and legal disciplinary practices. They will also be considering whether the Board should go down the road of regulating not just individuals, but entities as well.
Baroness Deech has rightly emphasised that in coming to a decision on these issues, her Board needs to consider what (if any) new models of practice the public interest demands. As she has said, “the Board’s first consideration must be the client”, so it is heartening for the profession to learn that the Board believes that the preservation of a distinct profession of referral barrister is in the interests of the public. As those of us here know, barristers come to the aid of those who might otherwise be ignored by large commercial firms, and the access of smaller or regional firms of solicitors to the Bar needs to be preserved from what Lady Deech has called “the corralling of barristers in large firms”. That could only reduce their availability to the public at large. But in all of this we must not lose sight of the relationship between new models of practice and the economic pressures on the publicly funded Bar. To quote Lady Deech again: “The tail of legal aid cuts is wagging the dog of British justice”.
The proper role of the Legal Services Board:
I support the BSB in its belief that if models of practice are to be reformed, there must first be evidence that any new model is compatible with the regulatory objectives of the 2007 Act and with the interests of our clients (or what the LSB calls “consumers”). It was quite wrong of the LSB to use an unidentified spokeswoman to criticise the BSB in September’s Law Society Gazette for indulging in what was termed a “sterile” debate. In all of this the sole concern of both representative and regulatory sides of the profession is with nothing more than what the Bar has always sought to provide the public – a high-quality service at the lowest possible cost. In the past this has been possible precisely because barristers offered their services without the overheads which inevitably tend to accompany partnership.
The LSB is at fault if it thinks that just because something is possible under the Act, it should therefore be permitted. The decision is that of the approved regulator, and the approved regulator is the Bar Council, not the LSB. First Clementi and then Parliament rejected the so-called Model A, under which a Legal Services Authority would have regulated the profession direct. Both the Parliamentary debates and the scheme of the Act make it clear that the LSB cannot impose policy on approved regulators or intervene save in circumstances of Wednesbury irrationality. Approved regulators have been given a wide margin of appreciation.
3. Conclusions: the view of the future:
Someone said that this was my swansong, so even if I still feel in the ugly-duckling rather than lame duck stage of my Chairmanship, let me say something about the path ahead. A week ago I returned from a trip to Zimbabwe organised by the Bar Human Rights Committee. Such trips should be compulsory for all those who have ever doubted the importance of universal access to justice in a society governed by the rule of law. Zimbabwe demonstrates par excellence that once inroads start to be made into the rule of law, it becomes progressively harder and harder to make good the defects.
Access to justice has, and always will, depend for its efficacy on high-quality advocacy by fearlessly independent-minded professionals. It is that on which the English Bar has always thrived, and in providing those services the Bar has never sought to differentiate between the quality provided to private clients and that to those who are publicly funded. Access to justice depends on equality of arms, not depth of pocket.
Of course, that is not to say that we as a profession should not continue our massive, and invariably unsung efforts to promote pro bono work. Pro Bono Week starts on Monday and the Bar will be playing its usual stalwart part. But as the leaders of legal professions from 35 jurisdictions said in their London Resolution at the start of the legal year, such work “can never operate as a substitute for properly funded legal aid by the state”.
In looking for ways to increase access to justice in civil work, we must look again at such topics covered by this year’s Workshops as mediation and direct access, now widened by the BSB. We must also throw ourselves into the debate on costs initiated by Lord Justice Jackson. If conditional fee agreements are on their way out, what should replace them? Could a Contingent Legal Aid Fund do the job, or would it deprive claimants of compensation to which they are justly entitled?
In ending, I inevitably return to criminal defence fees. Swingeing cuts can have only one result -- quality will be driven down as experienced advocates are driven out, Poor quality advocacy increases the chances of acquittal of the guilty, and (worse to my mind) conviction of the innocent. As the Lord Chief Justice said in his recent Kalisher lecture, “it really is as stark and simple as that.”
The way the Bar dealt with Carter graduated fees and VHCCs demonstrates our realism about fees, and our commitment to effective cost-control over public funds. We know that we cannot ask for a bigger budget. Instead, we ask for the budget to be effectively administered, and fairly apportioned to incentivise the efficient and expeditious. That is the message we shall be communicating to Sir Ian Magee in the remaining months of 2009, and that is the message we shall be plugging to our new government in 2010, whatever its hue may be. It is in the public interest that, at this time of all times, the Bar’s voice is heard.
