Legal aid news: April 2020

Welcome to our update of the latest legal aid and access to justice news from April 2020.

‘Millions in UK ‘could slip through virus wage safety net’’: On 2 April, the Guardian reported that 2 million self-employed people would not be protected as they do not earn enough from their self-employment to be eligible. This is because they do not earn more than £50,000, or have only just started being self-employed in the last year. According to Stuart Adam, senior research economist at the Institute of Fiscal Studies (IFS), ‘some will fall through the gaps completely… and others will see only part of their overall earnings covered’. This applies to self-employed junior barristers who started practising recently and do not have previous tax returns as a result.

‘City firms pledge £85,000 to save law centres from closure’: On 3 April, The Law Society Gazette reported that City firms had pledged £85,000 so far towards an emergency fund to save law centres from closure as a result of the COVID-19 crisis. The Law Centres Network has also established a Justice Fund to help law centres, which, Julie Bishop (director) described to be ‘operating on a knife edge financially’ even before the pandemic.

Bishop also noted that law centres have already seen a surge in domestic violence and employment matters, and that she ‘anticipate[s] that there will be unscrupulous evictions of tenants at this time. We anticipate debt and immigration problems. We need to be here to be able to support the community during this tough time so that, with an illness such as this, if they survive it physically, lives are not destroyed through a failure to get legal assistance when they need it. This is our very duty as law centres.’

The Law Centres Network estimated that it will need to raise at least £500,000 to sustain centres most in need of help.

YLAL survey results: On 7 April we published our COVID-19 report on the impact of COVID-19 on its members’ professional lives. The report analyses survey data collected from more than 300 YLAL members between 26 March- 03 April 2020.

YLAL Zoom meeting ‘Human Rights and Access to Justice during COVID-19’: On 8 April, we hosted our first ever Zoom meeting. The speakers were Steve Broach (39 Essex Chambers), Bella Sankey (Director of Detention Action), Jo Hynes (Public Law Project) and Steven Galliver-Andrew (Legal Sector Workers United). You can watch a recording and read a write-up of the meeting here.

‘Criminal barristers warn profession is on ‘knife edge’ as virus takes toll’: On 8 April the Financial Times reported that criminal barristers are struggling with the huge drop in income because of trials being postponed. The Bar Council has warned that half of chambers cannot survive without additional financial support. It surveyed 145 chambers; 55% said they could survive only 3 to 6 months without help, 81% warned that they would not last 12 months without additional financial support, and 60% of criminal chambers have already furloughed clerks or support staff.

Caroline Goodwin QC, chair of Criminal Bar Association, detailed that the publicly funded criminal bar ‘is literally on its knees and needs help’ and that the measures were ‘not enough’ and were ‘just not really working’ for criminal barristers. She noted that ‘criminal chambers are on life support and a business rate relief and quarterly rental holiday may just tide many over this critical three months until courts can reopen’.

Audrey Pinto QC, chair of the Bar Council described the measures as having ‘little impact’ on many barristers whose livelihood depends on conducting criminal trials. This is supported by Audrey Cherryl Mogan, barrister at Garden Court Chambers and YLAL committee member: ‘It’s really difficult. I have gone from being in court nearly every single day to having almost nothing in my diary and little income.’

‘Too scared to speak out: young legal aid layers highlight Covid-19 pressures’: On 9 April the Law Society Gazette reported that 1 in 10 respondents have been furloughed; working hours remain the same; practitioners are still required to attend police stations.

‘Vulnerable groups set to benefit from improved legal aid support’: On 21 April, the Ministry of Justice published a press release outlining their changes to legal aid access from 15 May 2020.

Key changes:

Immediate access to individual support for debt, discrimination and special educational needs cases to be restored
Greater access to legal aid for domestic abuse survivors
Government delivers on Legal Aid Support Action plan commitments
Expanding evidence requirements needed to qualify for legal aid for domestic abuse victims
Making the process easier
Reinstating immediate access to individual help for debt, discrimination and special educational needs (SEN) cases
LAA given power to backdate payments for applications of legal help for inquests to time at which application made, not when application granted

In the press release, the Justice Minister Alex Chalk MP announced that: ‘we are improving support for some of the most vulnerable people in the justice system – something that is extremely important during these challenging times.’ This press release also details the additional support available to victims of domestic abuse during the COVID-19 outbreak, such as referring to the government’s guidance on applying for domestic abuse injunction remotely and boosting domestic abuse helplines and online support with additional £2 million.

‘Remoteness of justice’: On 21 April the Legal Action Group published an article discussing what remote court hearings mean in practice.

On 6 April Judge Itis (@ItisJudge) tweeted that ‘many of us are getting into the swing of remote hearings. Warning. They take longer as we are having to set them up. The list capacities are greatly reduced. This cannot ever be the modern way of working. It is inefficient. It may be necessary now (deb
atable) but not long term.’

On 7 April an anonymous family court circuit judge wrote on their blog that: ‘there is no question that remote hearings are a good means of ensuring the continued delivery of the decision-making element of the family justice system. It is amazing that we can do it at all and it is great that we can. But doing so in this way is at the cost of our ability properly to connect to one another, and judges like me are compromised in their ability to conduct hearings with the empathy, fairness, understanding and compassion that is rightly valued as an essential element of the Family Court.’

Law commentator Joshua Rozenberg wrote that ‘[A]s recent events have shown, remote working can be a much more efficient way of delivering justice.’ This was contradicted by Mary-Rachel McCabe, barrister at Doughty Street Chambers, who stated that ‘the hearing took much longer than it would have done in person. As an advocate, I wasn’t able to “read the room” and the judge was not able to signal to me when she wanted me to move on, so my submissions were longer than they might have been in person.’

McCabe’s view was supported by Jo Hynes (Public Law Project) and Stephen Davies (criminal defence trainee solicitor). Hynes’ findings demonstrate that ‘remote hearings can exacerbate existing barriers to accessing justice, such as being unrepresented or needing an interpreter. Not only this, but new barriers are created and the ability of applicants to engage with the hearing is consequently reduced. In the process, something fundamental is lost. Atmosphere, non-verbal communication and participation are all reduced or lost entirely across a video link. We need to pause and recognise that remote hearings are not just different but involve a loss of co-presence which may not be appropriate for all legal proceedings.’ Davies’ noted that ‘client rapport is important in jury trials and that requires being present,’ and he is concerned about jury engagement if they were moved to remote hearings.

Karl Turner MP – Letter to Minister for Legal Aid: On 24 April Karl Turner wrote a letter to Alex Chalk, Minister for Legal Aid. His main points were concerning:

Eligibility for criminal lawyers for COVID-19 testing
Lack of financial support for legal aid practitioners
Urgent need for clarity from Ministry of Justice on its plans for legal aid and practitioners

‘The Infrastructure of the Criminal Bar at Immediate Mortal Risk – Chambers: A Strategy for Survival’: On 28 April the Criminal Bar Association of England and Wales published an update and proposed a ‘Chambers relief package’ funded by a levy on the existing legal aid budget.

The main changes that they are trying to enact:

Amendment to provisions concerning hardship, and those working at the criminal bar would now be able to claim to advance payments in cases commensurate with the stage that they have reached.
Threshold reduced from £1000 to £450
Time reduced from six months to one month post-instruction
Presumption of hardship put in place which should assist in the administration of claims
Intended that amendment to the SI will be laid on Thursday and come into force on Friday
Payment of fees immediately post main hearing, payment for hearings conducted administratively, travel expenses
Courts need to be sitting to their maximum capacity and those buildings need to be clean and safe
Invest and return the system to one that is funded
Actively seeking expansion of the Government’s Self Employment Scheme (SEISS) to cover those falling outside the current provisions focusing on the most junior and to increase trading profits threshold
Propose creation of Chambers relief package – funded by a levy on the existing legal aid budget with the intention that Chambers should be granted relief proportionately, based on average monthly LAA and CPS income and expenses

In this publication, Caroline Goodwin QC also drew attention to the fact that their requests for immediate implementation of the accelerated asks (PPE, Cracks, Unused), have, at this stage, been rejected.

‘COVID-19 testing extended to certain solicitors’: On 30 April the Law Society Gazette reported that ‘solicitors helping to keep the justice system running will be able to get tested for COVID-19’. It reads that the government had previously already prioritised courts and tribunals staff and the judiciary for testing, but that this was now being extended to legal practitioners deemed ‘essential to the running of the justice system.’

Criteria of eligibility for this ‘key worker’ category:

Advocates (including solicitor advocates) required to appear before a court or tribunal (remotely or in person), including prosecutors;
Other legal practitioners required to support the administration of justice including solicitors (police station and court) and barristers, solicitors, legal executives, paralegals and others who work on imminent or ongoing court or tribunal hearings
Solicitors acting in connection with execution of wills; and
Solicitors and barristers advising people living in institutions or deprived of their liberty.

We are very grateful for YLAL member Lucie Betts for this month’s legal aid news bulletin.