If the last four years of running the All-Party Parliamentary Group on Legal Aid and my work with MPs has taught me one thing, it’s that justice and access to it are never seen as vote winners.

MPs know that most people have a limited grasp of what these concepts mean, and perhaps even less interest in finding out. Children have an innate sense of fairness and wrongdoing, but few constituents will consider the law until they have occasion to use it – and, even then, this will likely be in relation to conveyancing, marriages, divorces, wills and probate. Most individuals will not encounter the legal aid system at all – even less so, since the reductions in its eligibility and scope of recent years.

And yet this past year, the law has been far more visible in all of our lives as a result of the COVID-19 Regulations and their enforcement. The term ‘fake law’ has been banded around, and Magna Carta has even been invoked for the first time in centuries by those claiming to believe it exempts them from the regulations. Before COVID, most people did not encounter the law unless they were in trouble or in crisis. Now, as human rights barrister Adam Wagner pointed out at the Westminster Commission’s oral hearing on the publicly funded Bar on 28 January, we have to consider the legality of going for a walk outside or meeting up with loved ones.

Adam was one of a host of barristers from all areas of practice appearing before the panel. Long active on social media and committed to demystifying the law, Adam has been performing a vital public service recently by explaining the COVID Regulations on Twitter (and raising money for the Law Centres Network in the process). During his evidence, he questioned whether having to navigate the law on a daily basis will change people’s understanding of and appreciation of its role in society. Does this then present us with an opportunity to educate the public about the law and the need for legal aid to help when people need it?

When Kenneth Clarke QC MP was Lord Chancellor, he declared to journalists that legal aid budget cuts were always easy to get through Parliament, because they could be presented as cutting the pay of fat cat lawyers. Sadly, this is a debate that has been successfully framed by government and the media over several decades. Headlines about convicted criminals being ‘given’ thousands of pounds of legal aid create the impression that the defendant or his lawyers will walk away pocketing that money. If the public don’t understand the justice system, they are unlikely to mourn or even notice its destruction, giving government a free hand to carry on dismantling it.

What steps do we need to take as a sector in order to engage with the public and to explain the vital role that we play? If you are in practice, I would put money on your having been asked at some point how you can ‘defend the guilty’? I’ve always found it telling that medics don’t face similar questions. Professor Jo Delahunty QC talked about the need for the public to understand how the fabric of society is underpinned by laws and rights that protect everyone. For the public to have trust in legal systems however, the law must be able to attract and retain people from all backgrounds.

Criminal barrister Joanna Hardy pointed out that for too long, the Bar remained the preserve of wealthy white men. For the law’s value to be understood and upheld, it needs to be seen to represent all members of society. This point was made again and again in our last session, with immigration barrister Dr S Chelvan highlighting that the majority of practitioners from Black and Minority Ethnic (BME) communities end up at the publicly funded Bar. This is no coincidence as many of these practitioners see themselves as advocates of those communities. However, there remain clear issues with lack of diversity in the profession and lack of progression.

Natasha Shotunde, Chair of the Black Barristers’ Network, cited the Diversity in the Bar report by the Bar Standards Board, which found that only 1% of QCs are Black. As of 1 December 2019, there were just over 1,000 QCs, of which only three were Black women, and 18 were Black men. She added that at the beginning of 2020, six Black females had taken silk, but this figure dropped again with only one QC out of 14 appointed last year being BME. Ms Shotunde also referred to a survey undertaken by the Black Barristers’ Network last year covering issues of racism within the legal system. Many of the respondents reported name calling, feeling patronised, being bullied and called names. Just over 50% felt that treatment by court staff had negatively been affected by race; 33 respondents had been assumed by court staff to be the defendants in a criminal trial; 23 respondents were assumed to be a social worker. If the law is to work for everyone it must surely represent the lived experiences of as many people in society as possible.

Marina Sergides (see below) also raised the deterrent effect of huge debt and static legal aid fees on those from non-traditional or BME backgrounds who may have less financial security in place. She added that the publicly funded Bar has a proud history of better representing BME communities than other parts of the Bar – although she worried that this, too, could be lost if no changes are made to make a career more sustainable.

Data about legal aid lawyers’ earnings is also scant, especially compared with the wealthier commercial sector. This was just one of the reasons why the Westminster Commission was originally established. In terms of the justice system itself, however, this shouldn’t be seen as a discussion about ‘paying lawyers more’. We need to ensure that the brightest and the best are attracted to publicly funded work and act in these cases that establish principles of law. They have ramifications for us all. It is about putting resources into a system to ensure that we have the right lawyers in place; the right access to justice; and a system that works for everyone.

Both Shadow Chancellor David Lammy (see below) and panel member Baroness Helena Kennedy made the point that we have perhaps lost sight of how a properly funded legal aid system is one that works in the public interest. It is a fundamental pillar of society. Not as a principle but as a living, breathing, working organism. There is a comparison to be drawn with how our perception of the NHS has changed since COVID-19. While embedded in the public psyche, in a way that legal aid is simply not, the NHS suffered chronic underfunding for years. We have begun to understand its importance, not just in providing high-quality healthcare when people are unwell, but because it protects everyone. LASPO and decades of cuts have pared legal aid back to be available only for cases with the most egregious of potential outcomes: loss of home, loss of children, loss of liberty, or loss of life. These services maintain society’s safety net. As with public health, there is an intrinsic value to society of a high-quality justice system. As a society we are richer for the certainty that whichever side we find ourselves on, we are well represented and our rights are protected. 

Marina Sergides writes:

On 28 January 2021 I gave evidence to the Westminster Commission on Legal Aid and I was fortunate to do so alongside some exceptional legal aid practitioners. I addressed three main areas:

Access to the legal aid Bar for the most unprivileged

Historically, it was thought that certain more traditional sections of the Bar, in particular the commercial Bar, were lagging behind in diversity (both socio-economic and racial). However, in recent years there has been a concerted effort by the leading commercial chambers to rectify that diversity deficit; not perfect, by any means, but at least some movement. By contrast, the legal aid Bar has long been a part of the profession which has always welcome and attracted diversity.

It would be a great irony if the erosion of legal aid were to lead to a role reversal, whereby the legal aid Bar sees a steady decline in the diversity of its new entrants as candidates from less affluent backgrounds start to view it financially unviable – namely, a career path that would exacerbate rather than alleviate the debt issues they come into the profession with. I now have to think twice before recommending a career at the legal aid Bar to aspiring barristers.

The culture of refusal at the LAA

Lawyers spend a disproportionate amount of time, unpaid time, persuading, chasing and challenging the Legal Aid Agency to fund cases that are clearly meritorious. For instance, legal aid practitioners understand and expect that nearly all applications to the Exceptional and Complex Cases Team will initially be rejected and have to be challenged. This is often despite counsel’s opinion being provided, sometimes on more than one occasion. There is then the inevitable reduction of legal aid bills being reduced on assessment; work that must be done yet will not be remunerated.

Low morale at the legal aid Bar

Few, if any, legal aid barristers enter the field believing it to be a lucrative career and that has been the position for many years. Notwithstanding, the cuts to legal aid introduced in 2013, combined with the culture of refusal and sustained government attacks on ‘do-gooder’ lawyers, have left barristers feeling unvalued, demoralised and, quite frankly, tired.

Many of us see ourselves, to an extent, as public servants, performing a quasi-public function and paid from public funds. Like other public sector workers, there is a feeling that government takes advantage of our ‘goodwill’ and our commitment to the work, such that we choose to do it over other, better remunerated, areas of work. Yet, unlike many other public sector workers, our incomes have been reduced (not only in real terms, but also in actual numerical terms) and the effort which has to be expended just to get paid can often become a job in itself. And most depressingly of all, we work in an environment where we are attacked by our own government, which is seeking to propagate an inaccurate and damaging narrative about legal aid lawyers. 

Marina Sergides is a barrister at Garden Court Chambers specialising in housing, social security, prison law and inquests.

Shadow Justice Minister David Lammy MP told Counsel: ‘Going forward, we have to have a justice system that serves us all. We do not just need to revisit rates of pay and terms of schemes. We also have to look at scope. For example, look at families who are in crisis, particularly in domestic violence claims where scope has massively decreased and victims, in this case particularly men, are unable to access legal aid to uphold their rights. Scope for housing and homelessness is another area that is vital and has been lost.

'I welcome the work being done by the APPG and note that the inquiry is hugely important work. I hope that we can work in a cross-party way to reimagine and recreate a system that is as comprehensive as the architects of the system envisaged in the first place.'