The Ministry of Justice (MoJ) is considering the idea of continuing to pay legal aid firms the average amount they claim each month to help them survive the coronavirus crisis, the Lord Chancellor said yesterday.
Robert Buckland said the government was also taking “seriously” the plight of junior barristers who do not qualify for government support.
Mr Buckland was giving evidence to the justice select committee remotely in a session that was not streamed publicly.
The committee said Parliament has “limited capacity to produce publicly available virtual committee evidence sessions in quality video or audio”, partly because of staff sickness or isolation.
Its meeting was one that had to rely on “variable quality” broadband connections, meaning an accurate, full transcription service would not be possible. It therefore produced a detailed summary instead.
Conservative James Daly, a former criminal defence solicitor, told Mr Buckland that former colleagues of his were concerned about finances as work had dropped off a cliff.
They suggested firms receiving average monthly payment of, say, £20,000 be paid at that average level from before the crisis, with provision for them to pay back money over a couple of years to the Legal Aid Agency (LAA).
The summary recorded: “Robert Buckland said that was a helpful suggestion, given Mr Daly’s direct experience of legal aid practice.
“He was looking for constructive suggestions from colleagues and legal professionals to help assist in understanding the challenges so that representations could be made to the Treasury.”
He referenced the initial support measures announced on Friday and said the LAA would facilitate and fast-track as many claims as possible to help with cash flow.
“But it was equally important to keep work going. The MoJ resisted calls to shut down courts entirely; that would have been wrong.
“Functioning magistrates’ and crown courts and more use of technology meant the system could keep cases going, and barristers and solicitors could bill for cases they were doing, which would go a long way to help deal with the problems practitioners face.
“The Law Society and Criminal Bar Association had made similar points. Officials were examining them so that they could be put to the Treasury.”
He stressed that the LAA had been given a “clear steer” about the importance of ensuring payments for work done were processed as quickly as possible.
“There was a real sense of urgency to speed payments and ensure cash flow so that the legal system survived the current emergency.”
Committee chair Sir Robert Neill raised last week’s Bar Council survey that showed 55% of chambers with five members or more would go out of business within six months if the current situation persisted.
Mr Buckland noted that the survey was based on an assumption that jury trials would remain halted. “If that were indeed so, chambers would hit many problems, which is why he was keen to see if jury trials could be kept going.”
Sir Robert also asked about the position of junior tenants or others who did not have three years of accounts to show average earnings and so qualify for government support for the self-employed.
Mr Buckland said he was “looking carefully” at Bar Council proposals to support them. “Some people had received awards from their chambers, but third year tenants do not have a cushion, and submissions on how to help were being taken seriously.”
Labour’s Andy Slaughter raised concerns about not-for-profit legal advice. Mr Buckland said he was aware of issue and “working with the sector to create more support”.
Separately, Young Legal Aid Lawyers (YLAL) – a group which encompasses anyone with up to 10 years’ post-qualification experience – backed the call for the LAA to make regular payments to providers based on their usual legal aid income.
It came after it published a survey of 309 members that found 46% of members were either ‘extremely’ or ‘quite’ worried about their job security.
Some 68% said their volume of work had ‘decreased’, ‘significantly decreased’ or been ‘decimated’ – with 80% of junior barristers going for the latter two options.
At the time of the survey, which closed on 3 April, 12% of employed respondents had been furloughed and 8% had been forced to take reduced working hours. Two respondents’ employment had been terminated.
Most of those furloughed said their firms were not making up the 20% of pay not covered by government funding.
YLAL said: “Young legal aid lawyers are already on low salaries, and many will not be able to afford basic living costs if they lose one fifth of their wages. YLAL’s 2018 social mobility report found that on average, 53% of respondents were earning less than £25,000, [while] 72% had or anticipated having debt over £15,000 as a result of their education; 26.5% expected over £35,000 debt.”
Nearly half (45%) of those still working said they were receiving less supervision and support as a result of Covid-19.
A quarter of members were required to put themselves at risk of infection because of their job, such as by attending police station interviews and having face-to-face meetings with clients.
YLAL also called on the Council of the Inns of Court to ensure a co-ordinated approach between the inns of court to ensure that the most junior legal aid barristers do not experience financial hardship; the Bar Standards Board to remove its agreement for chambers to vary pupillage awards that have already been advertised; and the Solicitors Regulation Authority to confirm that training contract periods would not be extended if a trainee has sufficient experience to qualify.
The report concluded: “Whilst some employers and chambers have done their utmost to support the junior members of the profession, there are observable examples of poor practice and there is significant scope for improvement across the legal aid profession.”