65% of family law barristers said
they undertake less legal aid work since April last year, with only 17% stating
that the implementation of the Act had not affected their practice. 69%
reported a reduction in their fee income. The number of family practitioners
attesting to an increase in litigants in person exceeded even gloomy pre-LASPO
predictions at 88%, and 80% of responses indicated an increase of delay in the
The Child Arrangements Programme envisages a more ‘inquisitorial’ court process functioning effectively in the
post LASPO environment, and the Money Arrangements Programme may well follow
suit. However, the result may in fact be a costly fudge of inquisitorial and
adversarial systems: judges lengthily discharging their newly-expanded duties
with two litigants in person, while represented parties wait expensively
For those still radical enough to
suspect that wider legal representation could actually ease the strains on the
MOJ budget, here are five suggestions gleaned from the Bar Council’s
presentation of their preliminary findings on 12 July. All wording and
extrapolation is the author’s own, and does not necessarily represent any
(1) Share post-LASPO experiences
While the ‘quantitative’ element of the survey has now
concluded, the project is still keen to hear more ‘qualitative’ accounts of the
experiences of legal aid barristers since the implementation of LASPO.
For example, while the majority of respondents to the April
2014 survey said they had no immediate intention of leaving the Bar, many
commented that they were ‘actively considering’ whether they have a long-term future
in the profession. These statements give some weight to the argument that there
is a real threat to the long-term future of the legal aid Bar.
The final report, with a full analysis of the responses to
the April survey, will be published in September. However, further
contributions could add considerable value, particularly as regards volume of
work, level of fee income and the number of litigants in person encountered.
The claim that we have the most expensive legal system in Europe has already been countered within the mainstream
media. It was indicated at the presentation that the Office for National
Statistics will conduct an independent calculation of the cost of the civil
legal aid system.
This should, for example, exclude VAT, the inclusion of
which has (it was suggested) misleadingly inflated government figures. It was
also argued that the money recouped by the Legal Aid Agency via the statutory
charge has not been taken into account hitherto and should be.
Another suggestion mooted was that individual counsel could
consent to the disclosure of their anonymised income data from the LAA, giving
an objective picture of their year-on-year remuneration from legal aid work.
Anyone who supports this idea could contact the Bar Council on the address
given above. Article continues below...
The extent to which cuts to legal aid in fact represent
‘cost shifting’ onto other areas of the MOJ budget could be more fully explored
and widely publicised. How much, for example, does each minute of court time
cost? How many more of these minutes are being expended on litigants in person than would have been spent with
represented parties, and can we quantify the difference?
The economic cost of the wider social problems which legal
aid is geared to address should also be considered. The Home Office, for
example, has accepted in the context of their Call to end violence against women and girls policy that domestic
violence costs the UK
billions each year. A survey conducted by Rights of Women last year found that
half of the victims of domestic violence surveyed did not have the prescribed
forms of evidence to access legal aid. Practitioners who can shed further light
on this can contact Public Law Project.
The wider ‘contextual costs’ of legal aid cuts may be too
complex to quantify definitively, they should be borne in mind when the
financial case is made for legal aid.
The Chancery Bar has set a rather fine example in this
Under the Chancery Bar Litigant in Person Scheme (‘CLIPS’),
practitioners are acting as ‘duty barristers’ at the Royal Courts of Justice.
They commit for one day at a time, and are effectively instructed by the Bar
Pro Bono Unit. Some chambers have ‘rotas’ in which senior and more junior
members are paired up for the day to represent litigants who may require their
Whether a similar scheme could work in a family law context
is perhaps a conversation which needs to take place if 88% of us have noticed a
rise in the number of litigants in person. The obvious objection is that legal
aid family practitioners will not be as well remunerated as their chancery
peers and are less able to subsidise voluntary work. However, if the family Bar
is really in such a bad way that its members cannot spare one day per year of
their time, further action is clearly needed ...
With a general election in 2015, voluntary contributions to
the Bar Representation Fund come into their own. It was indicated at the
presentation of the preliminary findings that the final results will form part
of the Bar Council’s case when targeting party conferences. Sharing
experiences, income data, and time is valuable, but that cold hard cash has its
This is list is of course not
exhaustive, and has been confined to the potentially ‘useful’ to exclude more colourful, but
perhaps less practical, forms of lamentation.
In the author’s personal view, the post LASPO
landscape has significant scope for improvement. The evidence suggests that the
market is contracting, fees are being squeezed beyond the point of long-term
sustainability, talent will earn a living elsewhere and cynicism seeps in. Does
this really allow us to provide the best possible legal services to some of the
most vulnerable people in society? The views expressed by contributing authors are not necessarily those of Family Law or Jordan Publishing and should not be considered as legal advice.