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Plans for more cuts to legal aid put families ‘at risk’

posted 13 Mar 2009, 15:44 by Dilwoar Hussain
Frances Gibb, Legal Editor
From Times Online
March 12, 2009

Several hundred angry barristers met in London last weekend and another 250 joined the meeting by video link from throughout England and Wales. They endorsed a resolution warning that “the public interest demands that family legal aid is funded at a level which ensures quality advocacy for all clients; further cuts to the fund will put families (particularly vulnerable families) and children at grave risk”.

The event demonstrates the high levels of emotion over ministers’ plans for further inroads into the annual £2 billion legal aid budget — plans that come, ironically, in the 60th anniversary year of the legal aid scheme.

“Up and down the country barristers have made it clear that they are being prevented, by cut after cut to the legal aid budget, from providing the service their clients need and which they came into the profession to give,” said Desmond Browne, QC, the Bar Council chairman.

Similarly, Lucy Theis, chairman of the Family Law Bar Association, said the meeting reflected the depth of concern. “There is abundant evidence of legal aid deserts developing just as there are deserts for NHS dentistry,” she said.

Their message is that the family system is at breaking point . Their claims were compellingly reinforced by The Work of the Family Bar, a study published last week into the impact of the cuts on the family justice system. The report, by Debora Price and Anne Laybourne, of the King’s Institute for the Study of Public Policy, concluded that experienced advocates are being driven out of family work, leaving the most vulnerable people exposed to miscarriages of family justice.

It also showed that barristers were working long and anti-social hours (two in three worked for an average of five hours on Sundays) and that the pay levels created “significant inequalities in representation in divorce cases between those who can afford to pay for a barrister themselves and those who can’t”.

The report sought to puncture the myth of a top-earning legal aid barrister, with taxable profits of about £66,000, and noted that as more women and ethnic minority barristers turned to family work, the budget cuts would hit the diversity of the profession — and the judiciary.

The latest £6.5 million cut, it said, would result in fees chopped by more than half in some cases and, in general, by one third. So is the protest about earnings? At one level, yes. Barristers earn a reasonable but not exceptional living, the research found. But the current crude system is a blunt instrument that does not adequately reward more complex work. Median gross hourly rates of pay are about £70 an hour before deductions for tax, expenses or national insurance. By contrast, the rate for private work is £113 an hour.

Barristers are not asking for more money, however. They accept that there must be cuts, Browne says; it is just that the latest proposals are a cut too far. They also want a fairer fee system that rewards work done, while giving the taxpayer value for money.

Whingeing lawyers are unlikely to cut much public ice. But if the changes go ahead, barristers can vote with their feet and simply opt to do other and private work. Meanwhile, the public may lose out. Advice deserts are already appearing: one barrister recently was instructed by a mother alleging serious domestic violence. The court case was in Hertfordshire but the woman had to instruct a solicitor (by e-mail and phone) in Norwich.

The argument is not all one way. Legal aid costs have risen inexorably and inefficiencies allowed to flourish, Lax controls have allowed some to egg the pudding. Average fees for child contact and residence disputes have risen from £800 to £1,450 in five years — an unsustainable rise, says Lord Bach, the legal aid minister. The changes will cut those average fees by £110.

Meanwhile, the average case fee in divorce finance disputes has risen from £600 to £1,100 in five years. The changes will cut those rates by just £165. In all, fees have risen by 134 per cent over five years, while the number of cases taken on has gone up by only 36 per cent.

Lord Bach also points out that child protection work — involving removing children into care — will receive an extra £4.4 million. But that is at the expense of divorce finance or child contact cases, which, the research found, increasingly involve allegations of child or domestic abuse.

Baroness Deech, the new chairman of the Bar Standards Board, told Saturday’s meeting that the relative smallness of the sums to be saved angered her. But ministers have a duty to ensure value for money. And they believe that even with the cuts, plenty of lawyers, many of them solicitors, will do the work.

Yet if the Bar is right, and 40 per cent of senior barristers leave, what quality of service remains for the public? It happened, after all, with the dentists — but children at risk are not quite the same as teeth.