I want to publicise the disastrous proposals to swipe legal aid in family cases. Not just because it will hurt my pocket, but because it is going to have long term and serious consequences for the families who most need the help of the family justice system, which I do not think government, the LSC, lawyers or the public at large fully appreciate. I cannot stress enough for the skeptics out there amongst you that this post is about access to justice and the promotion of family life, not just about fat cat lawyers. PLEASE read the whole of this post (sorry it is long) and let anyone you can know what you think. Please respond to the consultation even if you are not a lawyer.
The family justice system is already under considerable pressure (an understatement - it is already fraying at the edges if not coming apart at the seams):
- CAFCASS are underfunded and taking up to 8 months to prepare reports. They have inadequate resources to undertake their core work let alone to facilitate the newly implemented contact activities and enforcement orders.
- Court budgets are being cut. There are not enough judges to deal with cases promptly because they cannot be paid (e.g. 2 months to list an urgent contested interim residence hearing because the local court had overspent 44 judge days).
- Solicitors are demoralised as they have been absorbing cuts in their pay for years and for many this work is no longer viable and they are closing their doors to publicly funded clients.
- Public funding is more and more tightly controlled and there is already an increase in litigants in person which itself puts added strain on the system (more court time, less negotiation and consensual resolution)
- Social workers are demoralised and local authorities are fire fighting. Resource limitations mean they are often reluctant to provide support and assistance to families or the courts
The reason that the system still functions at all is that those who remain are extraordinarily committed and work really hard to find creative solutions to the difficulties in the system. We spend a considerable proprortion of our time finding the least unsatisfactory interim solutions to tide parties over until the court can actually deal with their urgent problem. It's prejudicial and unfair to parties and damaging for children.
It is still the general view that family barristers do ok and that - by virtue of the fact that we are barristers - we are paid very highly. This is not actually the case. In any event I don't want to complain about what we are paid - I want to let people know just how much our pay is going to be cut and what consequences will trickle through the system as a result of that and a thousand other tiny cuts.
Let me summarise the proposals contained in the consultation insofar as they are relevant for this post:
- Significant cuts to the amount spent on family cases overall
- Cuts to come from private law and financial cases only i.e. disputes between divorcing couples about finances and property and disputes between parents about children - care cases are not affected as this is too politically sensitive, therefore cuts which may otherwise have been spread across the board are being disproportionately made to these types of cases
- Real terms cuts to the amount paid for barristers' work of approximately 50% overall and as much as 75% in more complex disputes, equating to approximate hourly rates of £27 - £35 per hour before expenses, which as a rule of thumb are likely to amount to 30% and tax. And this for working long and antisocial hours in a highly skilled profession which requires us to undertake ongoing legal research and skill updating throughout the year.
- A 'flattening' of the payment system so that the scheme is less responsive to complexity - hence the disproportionately high cuts of c75% in the cases that require the most time, committment and expertise
- fixed fees for interim and final hearings, which make final hearings extremely unattractive as they require far more preparation and work but do not attract significantly more money
- even lower fees per hearing where there are more than 5 interim hearings, again reducing pay in complex cases
Why would anyone enter into this area of the profession at great expense (5 years training and £40,000 average debts by the end of pupillage) when it is clear that the levels of pay are going to be so low? If I was coming up now I'd go into another area of law and that is what I tell anyone in training to do when I meet them.
How can those of us who are already at the family bar absorb a pay cut of 50%? How do we pay our mortgages, how do we make an equitable contribution to the expenses of chambers? We might be committed to publicly funded work and to ensuring that clients in need are able to obtain quality representation but we cannot do it if we cannot make it pay.
Why does it matter? You might think I am taking a protectionist attitude, singing the praises of the bar's 'specialness' when in fact solicitors could simply absorb the work - and this is plainly the view of the LSC and to some extent solicitors. But if you took such a simplistic view of things you would be wrong. There is considerable overlap between the work that is and can be carried out by both solicitors and barristers in family work (and in appropriate cases legal execs). But the LSC can't have it both ways. Although they are pretty clear in expressing their view in the consultation document that there are more family barristers than are necessary and are prepared through these proposed changes to effectively 'cull' the family bar - they appear not to appreciate that if there is no work or insufficient work to make practice at the junior end of the profession viable then there will come a time when there is insufficient expertise in the system as a whole to ensure that counsel can be instructed in complex cases that require them. We won't be there. We won't be learning and developing our skills and acquiring the expertise that only comes through experience - because there won't be any viable way of doing so. And who then will represent the parents who desperately need a highly skilled and independent advocate?
And it is foolish to assume that solicitors can pick up the slack - 'juslikethat'. In many cases they already undertake their own advocacy and do a fine job of it too. But not only do many solicitors not want to undertake their own advocacy, some are unsuited to it (great solicitors are not necessarily great advocates), and most are too busy managing a case load of clients to attend all or any hearings, and in fact there are business reasons why it would not be cost effective.
Solicitors will always need to have access to a pool of independent advocates to undertake work they are unable to deal with themselves either because of other commitments or because they are not advocates. And they will always need to have access to a pool of independent specialist advocates to deal with the most difficult or sensitive of cases - some cases require people skilled in family advocacy rather than family law as a whole.
The LSC appears to think that solicitors should simply bring all their advocacy in house. But this would require the recruitment of numerous additional employees, with all the associated on-costs (tax, NI etc), and other expenses currently paid for by counsel out of their legal aid remuneration (training costs, legal library / resources, travel costs, office overheads, indemnity insurance...). And of course associated with bringing advocacy in house is the inevitable bringing in-house of risk - currently contracted out to the independent bar through their indemnity insurance. Although firms may be able to absorb a proportion of the advocacy work with existing staff they would undoubtedly need to employ specialist qualified advocates at appropriate salaries - for larger firms I should think the additional costs and risk would be unattractive, for smaller firms this would simply be untenable.
Of course the LSC view is also that there should be less, bigger solicitors firms and so in their view of the future the economies of scale would allow for the employment of specialist advocates in house. But there are many reasons why the legal aid landscape needs a diverse spread and range of solicitors able to take on family work, including a number of firms in any one geographical area. Particularly in family cases where there can be as many as half a dozen parties all requiring representation independent of one another it is essential in order to ensure access to justice that there are enough legal aid firms to take on the work. Five solicitors firms in one area (this is what is proposed by the LSC although I have no idea what an area is) is NOT ENOUGH to ensure that all parties are represented, not least because a solicitor would have a conflict if they had previously represented a family member in another family dispute. In care cases this is particularly likely.
So what do I think will happen if these cuts are implemented?
People will leave the family bar. I may well leave. I love my job, and I am committed to helping people get through their family problems. Children, parents, grandparents deserve and need skilled and committed representatives regardless of their means. I will stay if I can, but if I cannot pay my mortgage I will find something else to do. Like others, if I can find enough other work (i.e. privately paying work) to offset the cuts I will, but realistically this will be very difficult - particularly for children work specialists. There are only so many hearings that can be packed into one week.
The people who stay may not be the best. The quality of representation may well go down. The selection of advocates will be more limited. Healthy competition will be reduced.
The people who stay will be demoralised. They will stop giving that little bit extra. The drafting of case summaries, chronologies or other documents prior to heairng, the making of enquiries or telephone calls at court, the calls to our solicitors suggesting this or that, the staying at court until whatever time is necessary to finish the case, the typing up of orders for the court (a professional courtesy we don't get paid for), the provision of thorough attendance notes for solicitors, the provision of free lectures and seminars for solicitors...More importantly the thoroughness of preparation, the level of thought that goes into finding creative solutions. I hate to suggest that anyone at the bar would get sloppy or provide anything less than an excellent service but I think in reality something has to give at some point. We are professionals but I think that the more that the world at large forgets that the more individual members of that profession are likely to forget it too.
It will probably be harder to find representation for final hearings, since they are far less well paid - everyone will want to fill their diary with interim hearings and we will be entitled to refuse to undertake the most unattractive cases (i.e. the complex ones or the ones with a lot of paperwork to read) because the cab rank rule does not apply. There will be a disincentive to bring matters to a final resolution. People will go unrepresented or will have inadequate representation and individual hearings will run longer...and cases will run longer...and the system will slow down even more...and people will get more demoralised...and more people will leave...and - you get the picture.
So who will suffer? Not just my family (although I'm surely concerned to make sure I can provide for them), but families up and down the country. And at some stage when it's all unravelled and there has been an exodus of expertise from the family bar, the government / the LSC will realise its mistake. I don't hold out much hope in the current economic climate that the LSC / the government will see the long term folly of its proposals, but I damn well want to make sure that they cannot say they were not told.
Please comment on this post if you have any useful contribution to make. Please respond to the consultation before 13 March 2009. If you are a lawyer please attend one of the consultation meetings and tell the LSC direct what you think. Please tell as many people as you can about the cuts. This is not just a 'save the barrister' campaign - it runs deeper than that.