The Bar Council has laid out the demoralised state of legal aid barristers as it urged the government to reverse key elements of the Legal Aid Sentencing and Punishment of Offenders Act 2012 (LASPO).
More than half (53%) of the 511 barristers who responded to an online survey said LASPO had detrimentally affected their careers.
“Our survey responses suggest that LASPO has been directly responsible for some young barristers leaving the profession,” the Bar Council said.
In its submission to the Ministry of Justice’s post-implementation review of LASPO, showed how the number of barristers who undertook 60% or more of their work in legal aid has halved to 21% since the Act’s introduction.
The number of barristers undertaking no legal aid work at all has also increased post-LASPO from 25% to 37%.
The research found that often fees went down much more substantially than workloads.
One survey respondent noted that, post-LASPO, the proportion of legal aid cases they undertook only fell from 72% to 65%, but the proportion of their income from legal aid cases fell from 64% to 30%
The survey showed falling levels of fee security among barristers, with respondents citing severe delays in legal aid fees being paid, particularly for family very high-cost cases, solicitors refusing to pay barristers’ fees when the solicitor fails to reclaim the sum from the defendant, and barristers taking on more privately funded work to have fee security.
The Bar Council told the government that while 41% of respondents had not changed their practice area or specialism, “many had changed aspects of their practice to address the reduction in legal aid” – so a housing barrister said they now more commonly represented the landlord.
It also undertook detailed interviews with a small number of practitioners, and on family law recorded: “The introduction of LASPO has had a significant impact upon the family Bar.
“There has been a decrease in the number of barristers seeking to specialise in family law and who are willing to do private law legal aid work, due to low legal aid rates.
“It is not uncommon for counsel to be asked by the judge to draft complex and detailed orders (for which they will not be paid, as fees are fixed) when they are not the applicant, but the applicant is a litigant in person.
“It is also not uncommon for counsel or solicitors to be asked (again, without payment) to prepare witness and/or trial bundles, finalise indices, or photocopy documents for the court, in cases where all the other parties are litigants in person.”
The Bar Council said the evidence also pointed to an increase in the number of working hours among practitioners, “which poses a significant challenge to work-life balance and is leading to a risk of long-term damage to the profession”.
On the substance of the Act, the body said LASPO has delivered promised savings only at the cost of deluging the courts with litigants-in-person.
If the review did not result in change, the Bar Council argued that the future was “bleak” and the ministry would have to demand more public money to cover for the absence of publicly funded lawyers.
In the short term, the Bar called for people acquitted of a criminal offence to be reimbursed their defence costs; for legal aid to be reintroduced for a range of family proceedings; legal help to be brought back in welfare benefit cases; funding criteria to be relaxed in some inquests; and eligibility to be widened.
Bar Council chairman Andrew Walker QC said: “LASPO has failed. Whilst savings have been made to the Ministry of Justice’s budget spreadsheets, the government is still unable to show that those savings have not been diminished or extinguished, or even outweighed, by knock-on costs to other government departments, local authorities, the NHS and other publicly funded organisations.
“Nor do we accept that the reforms have discouraged unnecessary or adversarial litigation, or ensured that legal aid is targeted at those who need it, both of which the Act was billed as seeking to achieve. If anything, LASPO has had the opposite effect…
“LASPO has not just failed: it has caused untold damage to our justice system and to access to justice.
“The ministry and the government cannot and must not hide from this. The review itself cannot and must not gloss over what barristers and other legal professionals, the judiciary and the public are seeing happening in our courts.”