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Cat and Mouse: The consultation over the future of family legal aid

The consultation on the future of family legal aid ends at midnight today (3 April 2009). In a special feature for Family Law Week, Chris McWatters, from 5 Kings Bench Walk, speaks to some of the leading players in the debate, including the LSC, Lord Bach the legal aid minister and Dominic Grieve, the Conservative Party spokesman.

iamge of Chris McWatter, barrister, 5KBW
Chris McWatters, 5 Kings Bench Walk

After more than three months of consultation with family lawyers, the government ends the talking today and retreats to ponder what solicitors and barristers think of its plans to reform the pay structure for advocacy in family law. As anyone who has followed the often stormy consultations will know, legal professionals have been alarmed by the possible shape of things to come and are mounting opposition to a reform many consider hasty and ill-considered.

The government’s aim is  to iron out differences between barristers and solicitors by transferring £15 million of the legal aid funding in family cases from the self-employed family Bar to solicitors’ firms, who would be able to use the funds to pay in-house advocates. It also intends to cut funding for barristers working on complex cases.

The government insists the planned reform is no more than necessary housekeeping to keep things fair between barristers and solicitors doing the same job, as well as to cut rising costs.”We can’t go on spending at that level,” said Lord Bach, the legal aid minister.

However, lurking in every family lawyer’s subconscious is the worry that the government sees all lawyers as “fat cats” and wants to slim them down – a fear fed by the government’s regular publication of legal “rich lists” naming the highest earners in the profession. Said Dominic Grieve, the Conservative opposition’s justice secretary, family lawyers, already “as poor as church mice,” are about to see their incomes dwindle further if the reform goes through. He said: “They [the government] are asking the family bar to take very substantial cuts to reduce their earnings in some cases which actually appear to be insulting for the work that’s being done”.

With only five months to go before an official final policy is to be announced, there isn’t much time for opponents of the planned changes to put their case to colleagues and the public. Grieve is concerned that the government will try to rush the reform through before Parliament returns in the autumn. “The publication of a consultation paper in August is undesirable because Parliament isn’t sitting. Therefore there is less opportunity to challenge decisions or initiate debate. My impression as to the way this consultation has been carried out is that it’s been pretty cack-handed”.

Feelings are running especially high over any attempt to slim down family justice in the wake of Baby P’s death in Haringey last year. This planned reform is the first real test of how a government that pledged then to improve the lot of children at risk intends to actually go about it. For campaigners, it is a shabby disappointment. Caroline Little, co-chair of the Association for Lawyers for Children, said: “They [the government] want the lowest common denominator. [The reform implies that] poor people in the dock should have poor representation, and this  [comes] from a government that highlights child protection as one of its great aims.”

But Lord Bach shrugged off any linkage between pay cuts for legal justice professionals and the government’s pledges on child protection after Baby P. “Now I can understand that when you’re discussing your pay, like in any pay dispute, wherever it is, any argument will [get] use [d], even ones such as the Baby P one, which I have to say I think is completely over the top.”

Not so, parries Grieve:  it’s quite legitimate to remind the government of its obligations.  “It is rather extraordinary for a government minister to be criticising a professional body for using a particular case (Baby P) as an example to explain why the proper funding is necessary.”

Much of what the government has proposed does not constitute proper funding, lawyers’ organisations allege.

The idea that has drawn most fire is that the fee for a given case should be fixed – however long the case lasts, and however complex it is. Such a reform, abolishing almost all graduated uplifts for all aspects of complexity, would introduce an Alice in Wonderland feeling to legal charging. It would transform the simplest, shortest cases – the kind done by the most junior advocates at present, and resolved in a morning – into the most economically advantageous for senior barristers to take on. Long cases requiring years of expertise and elaborate preparation – precisely the cases which have serious issues of child protection - would, by contrast, go to the bottom of the heap.

Likewise, interim hearings, which can last anything from five minutes to five days, will, if the LSC gets its way, attract a fixed fee of just £198. Lucy Theis, QC, chair of the Family Law Bar Association (FLBA) said: “I don’t think anyone will take on the work.”

“The government’s justification is that this is a reasonable level for a one-day hearing, which it isn’t. You just have to hope you get lots of very short hearings. It’s an inappropriate way to run a family justice system.”

The Legal Services Commission is now going to re-examine this aspect of the plan, according to Sara Kovach-Clark, head of family policy at the Legal Services Commission, who admitted there’d been “overwhelming feedback” and accepted  that the provisions - for interim hearings at least - were  “too simple.” On final hearings, she said, she was also considering criticism. “There does have to be an element of swings and roundabouts... But we are willing to accept that we need to work to make sure it’s a bit more sophisticated than the scheme that we’ve got at the moment,” she said.

Another problem area is the plan’s reliance on in-house advocates employed by solicitors. Most solicitors’ firms don’t have sufficient advocacy work to employ a full-time advocate. Most solicitors, when they employ an advocate for a particular case, prefer to choose one on the basis of his or her appropriate expertise.

“It’s a flawed economic model,” said Theis.

Legal aid cuts were made to solicitors’ budgets in 2005. Those cuts have reduced the number of solicitor- advocates from 3,000 to 2,400 or so, according to Little, and the advocates’ average age is growing. She says she knows of individuals who’ve given up – gone into the judiciary, or become tourist guides.

As a result, there are concerns that “legal aid deserts” are opening up. According to the Legal Services Commission, you should always be within a 45-minute journey by public transport to a legal aid provider for family law.  The LSC does not accept that legal aid deserts exist. But leading lawyers have plenty of anecdotal evidence that in rural counties such as East Anglia, Cornwall, Cumbria, Devon – and also in more highly-populated Kent and Reading - there are so few firms providing publicly funded representation in these cases that sometimes vulnerable clients are hard pressed to find a lawyer less than a couple of hours’ trek away.

“The LSC fails to take into account the social profile of the client, who could be a vulnerable woman in an extremely abusive situation and with no economic independence at all, and the expectation is that she has to go shopping round to try and find a lawyer. The chances are if she has the courage to ring a firm of solicitors and they say ‘I can’t see you for another five weeks’ she will think ‘oh well I may as well go back to where I am’,” added Theis.

If the changes proposed now come into force, there will be more pressure on more family barristers to quit. According to an FLBA briefing paper, some of the legal aid practitioners most likely to be affected are Black Minority Ethnic women. “The current fixed fee proposals, if implemented, will have a disproportionate impact on women barristers, in particular BME ones who have a high dependence on publicly funded family work,” the paper says.

"If the consequence of these changes is that lawyers are driven out of this area altogether, then I think we will be faced with a situation when the quality of justice in the family courts will be diminished,” said Grieve.

A report by Deborah Price, Kings College London says that if these cuts come in, then 80% or more of the self-employed Bar will go out of their way to avoid doing legal aid work.

Price’s study – commissioned by the Family Law Bar Association, as part of the fight-back against the government proposals – looks at the economic reality of the family bar.

Theis hopes that the publication of the Price report last month (March) will allow for more informed debate. She believes the report brings accurate statistics to the argument – unlike the LSC’s consultation paper, which is based on anecdotal evidence that she suggests doesn’t stand up to much examination.

For instance, she points to the LSC paper’s use of what she calls “flawed  data” in its analysis of why advocacy costs have increased. Representing the government, Kovach-Clark says the LSC has settled the data issue after discussing it with FLBA statistician Professor Martin Chalkely.  The FLBA begs to differ. “It is not correct ... that Martin Chalkely is happy with the data,” Theis said. “This corrupt data underpins the structure of their proposals.”

The LSC has also decided – at the very end of the consultation process – to commission its own glossy report into the economics of the family advocacy market and its impact on their proposals. The LSC report will be compiled by Ernst & Young.

“It seems to me it’s something they should have done as a preliminary,” said Grieve.

What is of great concern to the FLBA now is that it won’t have an opportunity to respond to the Ernst & Young  report, since the government-commissioned offering will only come out at around the same time as the government publishes its final proposals in August. The FLBA says this places the government in breach of the cabinet office code of conduct on consultations.

The LSC, however, says firmly that the report is not part of the consultation. “This is one of a number of reports and pieces of research which we commission all the time, in order to inform some general policy development,” said Kovach-Clark.

With every aspect of the proposed reform apparently being disputed, it may be no surprise that even the level of current practitioners’ pay is open to argument. 

Lord Bach says family barristers currently get an average of £93,000 gross.  “Family barristers are well paid.”

Grieve, noting that after average business expenses at the Bar (30%), what a barrister actually gets out of that before paying tax today is about £60,000, said: “Whilst I accept that everything is relative, it remains the case that for a highly skilled professional, because that is what they (family barristers) are, working in a challenging area of law, £60,000 net earnings before tax is in relative terms low”. He then added: “the government have now proposed a change which will undoubtedly have the effect of payments being made to advocates for doing court work which many would regard as being almost derisory”.

“That figure (£60,000) is less the more your practice is dependent on legal aid,” Theis said. “And for the vast majority of practitioners, the proposed changes will mean a reduction of 50%”. The word at the Bar is that average pay may dwindle to less than £30,000.

The Conservative party’s Grieve suggests that hostility between Prime Minister Gordon Brown and Lord Falconer has been one cause of a decade of low funding for the department of justice and its predecessors: “It’s been progressively starved of cash.”

He believes, too, that the Labour government has “not shown by its track record a huge enthusiasm for the justice system. The justice system is perceived as being archaic, old-fashioned, and too expensive. Most of the major spats I’ve had with government have been over efforts by the government to curtail the principles of civil and criminal justice in this country because it is seen as being expedient administratively to do so.”

But, he added: “If you do not have an adequate justice system, then one of the pillars or props that holds a civilised society up gets taken away.”


 


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