Family Affair

Do you remember legal aid? The question isn’t meant to be facetious. No doubt, there’s a small but committed section of the NLJ readership resolutely dedicated to publicly-funded law (and a rather larger section that used to be). New figures published in last month’s Legal Action indicate that, whilst legal aid might still be an income stream for practitioners, it is increasingly an irrelevance as far as many of their clients are concerned.

Our current legal aid system was, as readers well know, conceived as part of the welfare state in 1949 at a time when free access to justice was viewed as no less a fundamental right than free education or healthcare. The legal aid scheme then covered eight out of ten people and cover remained at two thirds into the mid-1980s.

New Labour came into power in 1997 promising a new Community Legal Service and eligibility levels were down to 52%. The government currently spends £2 billion of taxpayers’ money a year on publicly-funded legal advice – barely enough to keep the NHS going for a couple of weeks – however ministers insist that such a level of commitment is ‘non-sustainable’. Now we learn from the Ministry of Justice that less than one in three of clients are eligible - just 29% of the population.

That sobering statistic puts the legal aid reform programme into context, not least the current dispute over the family bar scheme. The Legal Services Commission is currently working on its proposals for the graduated fee scheme ‘harmonising’ (or scrapping) the difference in rates between ‘self employed family advocates’ and ‘solicitor-owned businesses but often employing barristers as well’. The LSC appears to be bending over backwards not to antagonise the Bar (perhaps, mindful of the VHCCs fiasco), but the Law Society has no such qualms. The Family Law Bar Association (FLBA) purports to advocate ‘equal pay for equal work’ but is concerned that the LSC proposals do not ‘appreciate the distinction between simple and complex hearings’.

‘Shameless self-interest’ reckons Chancery Lane which argues convincingly for parity between the two sides of the profession. ‘We agree that any new scheme should reflect differing degrees of complexity of hearings, but the suggestion that solicitors only perform more simple advocacy whilst barristers only perform more complex work is untenable,’ says Law Society president Paul Marsh.

If the proposals are implemented, the LSC reckons they will save ‘as much £56m over the three years’. This is bad news for the QC who sends a crate of champagne to the family lawyer every time he receives an instruction for a complex child law. The solicitor assures LAG that he is prepared to make his own sacrifices in the name of equality.

The Legal Action Group speaks for the clients and not for the providers. We have no interest in dumbing down a service as essential as this but we expect a transparent and rational basis on which lawyers are paid especially when pressures on the fund are as acute as they are now.

The inequality between the pay schemes is not easy to justify however what is more difficult is the absence of a clear rationale between the two schemes. The LSC offers LAG two fully-costed (and heavily caveat-ed) examples of how the pay schemes might typically operate. In an interim hearing in a public law case, the barrister cost £446 and the solicitor £228; and the final hearing in private law child case the costs were £692 and £508 respectively. Perhaps the most sensible observation from this exercise is the arbitrary way that these figures appear to be arrived. It is neither sensible nor clear and, frankly, neither is the discrepancy between Bar and solicitors. Message to Bar: perhaps don’t put that champagne on ice.

(A version of this article appears in the New Law Journal October 24^th)

Jon Robins is director of campaigns and communications with LAG