The civil law legal aid system in England and Wales is “running on empty” because of cuts imposed eight years ago that are having a “damaging effect” on barristers, a study has found
The Bar Council, which represents 17,000 barristers, questioned advocates and clerks working in areas such as housing, immigration and family law that were hit by the Legal Aid, Sentencing and Punishment of Offenders Act, which came into force in April 2013 and removed huge swaths of disputes from being eligible for legal aid funding.
Many barristers said that compared with 2013, they were now earning a considerably lower hourly rate in cash terms, the study published on Thursday found.
Derek Sweeting QC, chair of the Bar Council, said the consequences of underfunding of the civil legal aid system would continue to snowball if action was not taken. “Our report finds a civil legal aid system running on an empty tank, kept going by nothing more than the goodwill of the legal profession. This is not a sustainable way to guarantee the future of such an essential service for the public.” he said.
The report highlighted the difficulties the legal aid system was having on grieving families seeking representation at inquests. This area has never been part of the legal aid system and anyone who wants representation has to apply for “exceptional case funding”, for example on public interest grounds.
However the Bar Council study found that many barristers believed the fixed fee for inquests was too low to prepare properly a complex case such as the death of a prison inmate — where a junior lawyer representing the family might well face more senior barristers representing state agencies such as the police or Ministry of Justice.
“This means that, in practice, a bereaved family is likely to be represented by one junior barrister who, despite best efforts, has not had the time or resource to fully familiarise themselves with the background,” the Bar Council report said.
The study also found that senior barristers said they were being forced to turn away from legal aid work in favour of better-paid private sector work or to take on more cases to stay afloat financially. The report said this was leading to legal aid barristers “having to work all-nighters, weekends and 60 or 70 hour working weeks”.
Emma Manning, a senior clerk at Garden Court chambers, is quoted in the report as saying: “During my career I think the main thing that has happened is that barristers and solicitors are working harder for less money. For barristers, cuts to funding have come in and reduced the hourly rates or taken funding away completely.”
The study also highlighted concerns from barristers about recent government attacks on “activist lawyers”.
Stephanie Harrison QC, a human rights lawyer quoted in the study, said: “I think they, the government, does literally see those who practise in legal aid as just a thorn in their side, and they even seek to undermine them by calling them ‘activist’ lawyers, the lawyers who are representing people and defending their rights in a politically sensitive area.”