46% of Brits Don’t understand legal aid or how to get support

New research by specialist lawyers bolt burdon Kemp, has uncovered the key issues that are preventing people in the UK from getting proper access to legal services, with findings suggesting that: • Only 27% of the British population was eligible for legal aid in 2007. Further cuts since then have exacerbated that number. • the regions that have had the highest legal aid expenditure across the years include London,

Yorkshire and the Humber, North West England and

the West Midlands. • 72% of legal aid clients are from BAME backgrounds; they’ll be the worst affected if legal aid cuts continue. • 46% of the British public don’t understand the legal aid system or how to get support and 51% say there are too many barriers to legal aid funding.

A decade without review: Inequality in the legal aid system • Only 27% of the british population was eligible for legal aid in 2007. Further cuts since then have exacerbated that number. • the regions that have had the highest legal aid expenditure across the years include London, Yorkshire and the Humber, North West england and the West midlands. • 72% of legal aid clients are from bAme backgrounds; they’ll be the worst affected if legal aid cuts continue. • 46% of the british public don’t understand the legal aid system or how to get support. the legal aid system has been decimated over the past 10 years. And, the Legal Aid, sentencing and Punishment of Offenders Act (LAsPO) in 2013 meant vast swathes of people lost access to legal aid. the legal aid system needs urgent reassessment and reform. Otherwise, as new research from specialist lawyers bolt burdon Kemp makes clear, it will be the most vulnerable and disadvantaged groups in society that’ll be the hardest hit. review the findings below.

The most deprived areas of the UK need the most legal aid

In 1949, 80% of british people had access to free or affordable legal help. by 2007, this had reduced to only 27%, and in 2013, austerity measures cut this even further. Who is most likely to need legal aid? It’s probably no surprise that the regions in england with the highest legal aid expenditure are also the most deprived below is a table showing the english Indices of multiple Deprivation (ImD) 2019 rank scores across regions in england (the lower the score, the more deprived the region is deemed to be), and their legal aid expenditure in 2019/20.

Region

North East Yorkshire and the Humber East Midlands West Midlands South West North West East of England London South East

sum of IMD rank

21,451,474 47,622,872

47,662,971 50,202,889 59,490,696 60,694,509 68,181,747 73,480,048 110,593,358

Expenditure (£’000s)

45,008 88,459

57,915 83,443 66,812 87,954 50,505 231,784 40,451

One of the most deprived regions in England has the highest legal aid expenditure

Yorkshire and the Humber appears in the ImD rank as one of the most deprived areas in england. When compared to the other regions in england with a similar or lower ImD rank, Yorkshire and the Humber’s legal aid

expenditure is the highest. • £88,459,000 spent on legal aid in Yorkshire and the

Humber • £83,443,000 spent in the West midlands • £57,915,000 spent in the east midlands • £45,000,000 spent in the North east – the most deprived region in england • there are many explanations for high legal aid expenditure in a specific region: • the area has a lot of legal aid providers (such as law firms or not-for-profit organisations). • the cases in the area may be more likely to fall under the reduced scope for legal aid following LAsPO. Legal aid is now only available for the following types of cases unless under exceptional circumstances: environmental law, asylum, neonatal clinical negligence, mental health law, child welfare, eviction, most judicial reviews. • the area has a lot of disadvantaged people who qualify for legal aid based on the stringent eligibility criteria.

The number of legal aid providers overall has fallen over the years

In part due to LAsPO-related legal aid cuts, the number of legal aid providers across england and Wales has fallen over the years. In 2011-12 there were 4,257 solicitor firms and not-for-profit organisations providing legal aid work. this saw a rapid drop between 2013 and 2018, down to 2,818. the latest figures show this now stands at 2,900. the full breakdown is below:

Year

2011-12 2012-13 2013-14 2014-15

2015-16 2016-17 2017-18 2018-19

2019-20

Number of providers

4,257 4,178 4,282 3,783 3,359 2,985 2,818 2,947 2,900

Black, Asian and minority ethnic (BAME) clients make up the majority of legal aid claimants

Looking closely into the demographics of those who receive legal aid, black, Asian and minority ethnic (bAme) groups are featured far more than white groups. the government’s legal aid client diversity data from 2012 onwards shows that this has remained the case for the last 8 years. If further cuts are to be made to legal aid funding, it’ll likely disproportionately affect these minority groups:

minority practising barristers p.1 has almost doubled demonstrates progress on diversity and inclusion at today’s bar. Nonetheless, there is still work to do. While retention of women has improved, women still leave in greater proportions than men. Addressing factors behind this is a key part of the bar council’s current programme of work on modernising the bar. As well as this, our work with the young bar (including focus groups and the barristers’ Working Lives survey 2021) and our planned race summit this Autumn will – we hope – help us better understand why barristers from ethnic minority backgrounds spend longer periods out of practice in their early careers than white barristers.”

there are now many initiatives in place to support women at the bar. Forward thinking chambers have robust parental leave policies, return to work policies, and percentage based expenses schemes, rather than flat rates, which mean that expenses is only paid on money actually paid. there has undoubtedly been a greater emphasis in recent years on wellbeing and mental health at the bar, with for example the bar council’s “talk to spot” programme being made available to report bullying and harassing behaviour.

the bar council are currently engaged in the “Accelerator Programme” which incorporates nine projects focussed on increasing retention and progression of underrepresented groups at the bar. the programme has identified a number of interventions that are required to support retention and progression of under-represented groups, which they are currently taking forward.

Nonetheless, the trend for a lack of comparable retention still persists. the difficulties of practising at the bar while having childcaring responsibilities and balancing family life with a career at the bar was seen as hugely problematic when the bar council conducted research in 2014-152 , and the recent bsb figures suggest that the problem is a long way from being resolved. there are of course variables within practice areas. the criminal bar, with its unpredictable system for listing trials and requirement for last minute and out of hours preparation, has been warning of huge difficulties in retention for some time, well before the catastrophic impact of covid-19 on the profession. In 2019, chris Henley Qc, then chair of the criminal bar Association, writing in counsel magazine3 , ‘During my time as chair I have become completely convinced that nowhere near enough is being done on racism and sexism, right across the whole of the criminal justice system, not just at the bar but certainly including it. there is such an entrenched reluctance to do much if anything about it and not enough priority is being given to the profession’s wellbeing from the senior criminal judiciary. It is causing the haemorrhaging of talented women from the profession.’ more recently, the criminal bar has continued to suffer losses of young talented barristers, as highlighted by the secret barrister in the Guardian article, “Diversity of criminal bar at risk as junior barristers forced to quit,” (August 20204). research has also highlighted issues of work allocation and income disparity, with female barristers and barristers from minority ethnic backgrounds likely to earn less than male and white barristers respectively5 . that has led to recent initiatives for example on the North eastern circuit with additional training for clerks specifically looking at gender issues and the fair allocation of work.

Specific challenges

the bar now faces a significant problem for the retention of all those with caring responsibilities in the form of extended operating hours. Despite piloting the scheme in 2020, and then deciding not to continue with it in February 2021, in July 2021, the Lord chancellor robert buckland backed ministry of Justice proposals to introduce new “temporary operating hours”, with two models that will run alongside normal operating hours. this will involve jury trials running either from 9am to 1pm, or 2pm to 6pm, but the ultimate decision about whether or not the scheme

A previous survey conducted by Women in criminal Law highlighted the devastating impact that these extended hours will have on women6 . the impact on childcare or other caring arrangements, impact on mental and physical health and the impact on work/life balance were the most commonly relied on objections. critics have pointed out that the court estate has been diminished in recent years by substantial closures of courts, which could have instead been used to meet the demand and backlog. extended operating hours have also been seen on an unofficial basis in other areas of work, particularly in cases dealt with remotely. the advance of fully remote cases in the family court has led to an increasing number of case management hearings being dealt with from 9am onwards. that involves prehearing discussions and advocates’ meetings from 8am onwards, at a time when parents are juggling children and the school run. before remote hearings were commonplace, that time was commonly spent travelling, which ironically removed the likelihood of a busy working mother multi-tasking and feeling under pressure to do and be all things to everyone. However, a balance between remote and hybrid working, if approached with an awareness by the judiciary and colleagues that working from home does not equate to 24/7 availability, can provide a useful method to bring better balance to life and the profession.

The way ahead

What then can be done in terms of solutions? there is increasing awareness of the need to support women at the bar, as shown by the popularity of groups such as Women In Family Law, the Association for Women barristers, Women in criminal Law, the Western circuit Women’s Forum, and the North eastern circuit Women’s Forum, to name a few in an ever growing list. senior female members of the bar continue to mentor, to lead by example, in order to demonstrate that this is a profession in which women can succeed, with the right support. that support has to come from our clerks and senior colleagues, as shown by the Western circuit Women’s Forum October 2019 report entitled, “Back

to the Bar: Best Practice Guide Retention and Progression after

Parental Leave”.

If chambers want to retain the talented female youngsters that start life with them as pupils, and support them as they grow into senior juniors and Qc’s, they need to have transparent policies in place to promote a return to work after parental leave, flexible working, and anti-bullying. Issues such as support through the menopause, and an openness about symptoms and the need for support are vital to the mental and physical health of women who are juggling the demands of a family, career and ever evolving hormones. A vital part of the support is the management team within chambers including the senior clerk, which must actively expect work to be fairly allocated, and promote good communication with the clerking team. All of these are key to retaining women at the bar, and encouraging them to grow their practices towards judicial appointment and silk applications. It cannot and should not take another 100 years7 to make further progress towards equality at the bar.

1trends in demographics and retention at the bar 1990 – 2020 (bsb July 2021) 2bar council – experience of self-employed women at the bar 2014-15. 3https://www.counselmagazine.co.uk/ articles/in-the-thick-of-it-chris-henley-qc 4https://www.theguardian.com/law/2020/ aug/31/diversity-of-criminal-bar-at-risk-asjunior-barristers-forced-to-quit 5bsb (2020) Income at the bar by Gender and ethnicity. 6https://www.criminalbar.com/wp-content/ uploads/2020/09/WIcL-eOH-reportresults1.pdf 7https://first100years.org.uk/

d. the ever-growing migrant and refugee issues that are everywhere in the world,

Afghanistan being the most recent but sadly not the only such crisis.

What is certain though is that all these issues carry with them the inevitability of increased conflict across the plant. If we are willing to die for our ideologies, imagine what we will do for drinking water? the covid-19 crisis will continue to see insurance claims for loss of revenue, force majeure arguments in commercial contracts, increased investor-state arbitration, airlines suing governments for imposing quarantine regulations restricting travel, and more. there are literally billions of pounds of unpaid commercial rent arising from the various lockdowns in the UK alone that needs to be addressed. Following the death of George Floyd, we saw increased tension with law enforcement in some areas, curfews in U.s. cities and the army on their streets, attacks on public monuments, and a ground swell of people of all nationalities and ethnicities saying enough is enough. the same following the capitol Hill riots. by any reasonable measure of public sentiment, it seems clear this movement is not going to fade away. then there is the issue of water shortages in the middle east, Africa and now America where the federal government has declared a water shortage on the colorado river and the Las Vegas reservoir, fed by the Hoover Dam, is at its lowest level since the Dam was built in the 1930s (35% and falling). While the issue has been around for centuries it may soon be the biggest source of conflict on the planet. supply chain and other resource issues will follow but not to the same magnitude and not with the same catastrophic effect. there is significant change everywhere we look. most humans do not deal well with change. We are creatures of habit and fearful of what we do not know nor understand. this fear and uncertainty lead to increased conflict. People, tribes, and societies will feel the need to protect themselves, their way of life and their identity. the dominant culture will resist change and ceding power, the discriminated and dehumanized will insist upon it. Around the world the courts will see

a sharp increase in litigation because p.1 of economic pressure, challenges to the status quo and the testing of unchartered waters as we navigate our way through change and the “new normal”. so too will the arbitration market. Already strained court systems will come under increasing pressure. In the UK, all of this before we even discuss the high likelihood of increased disputes and litigation arising from brexit.

Legal Profession’s Role

so where do we - the legal profession - sit in all of this? What is our role moving forward? to make hay while the sun shines?

Do the barristers among us rub our hands with glee and make plans for a second holiday home (perhaps in spain – I hear their holiday spots are in trouble)? this is the silver lining embedded in the current crises we face, is it not?

maybe not. Now might be the perfect time to remind ourselves why we are truly here and what we lawyers can contribute to the world. scratch around in our past and it turns out that our

In 1983 at the American bar Association midyear meeting, thenchief Justice Warren burger told the audience that the original role of lawyers was to heal social conflict and that it was time to embrace that role again. He asked: “should lawyers not be healers? Healers, not warriors? Healers, not procurers? Healers, not hired guns?”

chief Justice burger was not the first legally trained public figure to make that point.

mahatma Gandhi put it this way “I understood that the true function of a lawyer was to unite parties riven asunder.”

And perhaps most famously of all:

“Discourage litigation. Persuade your neighbours to compromise whenever you can. Point out to them how the nominal winner is often a real loser - in fees, expenses, and waste of time. As a peacemaker the lawyer has a superior opportunity of being a good man. there will still be business enough.” Abraham Lincoln

those observations do not sit comfortably in our identity politics blame based culture, which is heavy on self-righteous anger and low on compassion, high on individualism and low on genuine connection. the practice of law has modelled itself on this cultural attitude. Of course, that is not true of all lawyers and all aspects of legal practice – I am generalising to make a point. but it is a fair point.

Are we using the best tools available?

Litigation remains our predominant response to dealing with significant conflict. mediation, which promised so much 30 years ago (and still does) has not got the traction it deserves. While the sophisticated users of mediation know it and use it well (insurance companies, large corporates, multinationals, franchisors), the uptake amongst the majority of those in conflict has been poor. mediation in many respects has stalled in its development. Why is that?

In part this is because of the way we mediate which is limited in scope – most mediations are still run on the traditional one-day model. that model has not changed since mediation was first introduced into the dispute resolution market. the model works very well for litigated disputes but what of the conflicts arising from the issues discussed in this article, many of which have significant social and political components but are not suited to a litigated process?

While it is encouraging to see the master of the rolls so active in dispute resolution and its integration with the court system, and the civil Justice council’s recent report on compulsory ADr, these global issues are not going to be resolved for the benefit of all humankind by litigation. Of course, some aspects of these conflicts will go to the courts or into the international arbitration process for determination, but those will be for remedies specific to the litigating parties, not resolution of the whole.

What do we do about the resolution of the increasing number of long-term resource issues that are now cropping up and will be here to stay (drinking water, access to healthcare, and food supply)?

What about the crisis to end all (literally) – climate control? Our approach to that cannot simply be litigation (aspects of it of course can be litigated –esG is an example). but as Ken cloke said: when you are all in the same boat and that boat is sinking there are no winners, only losers.

Litigation or even the mediation of litigated disputes that deal with parts of the whole is not the answer. but an expanded view of mediation as a collaborative, facilitated discussion that takes place over days, months or even years may be a huge step in the right direction and one that lawyers as the healers of social conflict can take. call it a facilitated, interest-based conversation if it needs a name.

Why has the early resolution of disputes using a multi-day facilitated negotiation model not gained traction? It has found a home in peace negotiations. so why are we not facilitating more debates involving all the stakeholders that have an interest in issues of significant public policy? Like systemic discrimination, water shortages, refugee, and migration issues?

Is self-interest the answer? If something is happening to “them” (you can interchange who “they” are depending on the crisis you are looking at) is it all too easy, even in this age of awareness and enlightenment, to simply say: not my problem? shortage of water in ethiopia – not my problem. Afghan citizens so desperate to escape they cling to the undercarriage of aircraft that are getting airborne – not Litigation is well suited to our identitybased approach to conflict – making conflict an argument resembling a war to be won or lost at all costs. but is that the right approach? the three quotes refered to above suggest not.

Looking Forward

Global issues of the magnitude we are discussing here cannot be allowed to go unresolved or to result in armed conflict and must be resolved for the benefit of humankind. If that does not happen there will be no winners, only losers. For example, while armed conflict may “settle” a water dispute in the short term it will not address the underlying issues of scarcity and an ever-growing population that needs access to drinking water and water for crops. meaningful dialogue and collaboration are the only way to address issues on this scale to find viable solutions to the problem, which are not regional but global. they are not us and them based but “we”.

With all that has happened in recent months around the world, and all that is yet to unfold, now is the perfect time to look for opportunities, new beginings and to revisit the origins of what it means to be a lawyer.

We need to embrace the role we lawyers can play as the healers of social conflict. We are in the dark and we need a torch.

by Paul sills, Arbitrator, mediator, barrister

The barrister magazine

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