Copied below is the full text of a letter to all members of the Bar of England and Wales, from the Chair, Maura McGowan QC.
The CBA would very much like to hear the views of individual members of the Criminal Bar.
Please do post them on this blog.
In the absence of a Bar Council meeting this month, I hope a letter to the profession is a good way of letting people know what is happening.
Last week I met the Lord Chancellor and Lord McNally. It was a constructive and cordial but business-like meeting.
The proposed review of legal aid in criminal cases will begin with a public consultation. Nothing has been decided yet, everything will be reviewed. The process affords us an opportunity to contribute to and influence the resulting decisions. We will be actively involved in the discussions at every stage. It is vital that we contribute ideas for consultation and do not just respond to a consultation paper after the event. By then the proposals will have begun to crystallise. That is why I am determined that we should be constructively involved from the start.
We expect to begin meetings with officials at the Ministry of Justice (MoJ) very shortly. I have set up a policy group to deal with this. It will include representation from the Criminal Bar Association and the Circuits. I want to be able to go to the MoJ proactively with workable proposals. Simply reacting can achieve nothing.
This is going to be a fundamental review. Contracting will be one of the options under consideration. This is the most important challenge to the structure and future of the referral Bar in criminal work. We have to be ready for it.
I have already seen a number of Parliamentarians. We have made clear to them what is really happening at the Bar and we shall continue to do so. I can report that there is genuinely a good understanding of the value and importance of the independent referral Bar in all aspects of the legal system and there is no little sympathy for the plight of publicly funded practitioners. That, of course, sits against a backdrop of the current financial crisis.
The family and civil Bar knows what effect LASPO will have on their practices when it comes into force in April. Large areas will come out of scope and large numbers of particularly vulnerable individuals will be left without any form of legal representation. We need to monitor the effects very carefully. If, as we have always warned, the courts begin to slow down under the extra pressure, we need to be ready to make this known.
The dates for registration under the proposed QASA scheme were published on 31 January:
· Western and Midlands circuits: 30/9/13 to 10/01/14
· South Eastern circuit: 10/03/14 to 13/06/14
· Northern, North East and Wales: 30/06/14 to 3/10/14
There are still areas of real contention within the scheme. The first two years of operation is a review period and we will open a dedicated mailbox to coincide with the first period of registration. We need to know all about the problems, weaknesses and successes of the scheme as it happens. That is the only way to report back to the BSB and not simply by responding to another consultation paper. We will continue to push for revisions and improvements in the scheme. One suggested improvement would be to prevent Plea Only Advocates from being able to act up by taking pleas in category three. We have not and will not stop seeking to ensure that any scheme which is in place works in the public interest.
I entirely recognise that recent years have been a period of disillusionment, frustration and anxiety for the publicly-funded Bar. There is understandably a sense and fear that all developments will be detrimental to those practising in such areas and that nothing is being done or achieved to their advantage.
The mood is such that statements alone will provide neither answers nor reassurance. Only achievements will suffice. On that basis let me mention two matters that are of fundamental importance in reorganising those areas of the profession and in preparing for a positive future.
First, the application for the rule change to permit the acceptance of direct instructions in cases otherwise eligible for legal aid has been submitted to the LSB. This represents considerable progress towards implementation. We know from consumer groups that there is a real public interest, in both senses, in the extension of this scheme. The proposal has been considered in great detail, it includes provision for ’top-up’ training and protection for the very junior. There is no reason to think that it will not succeed.
Second, there is an acknowledgement in Whitehall and Westminster that the current rules on restrained funds are not working in the public interest. The Government has listened to our representations and we are confident an announcement will be made in the near future.
The LSB has commissioned a ’report’ on the cab rank rule, it seems a bizarre thing to have done and it is now being described as a ‘discussion document’. There doesn’t seem to be much to discuss, the rule operates in the public interest. I have submitted a Freedom of Information request to find how much the report cost. Sir Sydney Kentridge QC is drafting the Bar’s response. We think he might know a little bit more about the subject than the LSB’s hand-picked academics, Professors Flood and Hvvid, who were the authors of the report. The BSB is equally concerned and has also commissioned a response. The Senior Judiciary will also express a strong view.
The problem of giving clients information about complaints has been around for a long time now. The BSB is proposing to undertake research to gather evidence of whether the current requirements are practicable. The BSB is aware of concerns expressed about the arrangements but it needs substantive evidence if it is to put forward a strong case for change. Chambers are encouraged to participate and should contact Jenny Hart at JHart@barstandardsboard.org.uk if they are willing to do so. It’s in our own best interest to contribute to this research.
We all know the myth surrounding the fat cat label and many of us are all too aware of the real difficulties faced by some of our colleagues. The Barristers’ Benevolent Association (BBA) does fantastic work on behalf of those of us going through very hard times. Almost all of us can probably afford to make some small contribution, please do so if you can. The BBA’s annual report and more information about the valuable work they do can be found here.
Maura McGowan QC
Chairman of the Bar