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Five things we can (usefully) do about LASPO

Date:21 JUL 2014
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Healthcare Law Associate
No-one expected it to be good news. Even so, the preliminary findings of the Bar Council’s survey on the impact of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) make for demoralising reading.

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 family courts.

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 outside court.

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 official attitude.

(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.

Anyone willing to contribute can contact the project at: Remuneration@BarCouncil.org.uk.

(2) Calculate the net cost of legal aid

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.
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(3) Calculate the net savings of legal aid cuts

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.

(4) FLIPS?

The Chancery Bar has set a rather fine example in this respect.

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 services.

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 ...

(5) Lobby

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 uses.

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.