Pro bono publico: private conscience and public service

Posted on 8th Nov 2013 in Legal Profession

National Pro Bono Week and the Bar Conference 2013

At a time when public funding is being cut to the bone, the Bar is already going further and working pro bono.

But is it right for the government – with  all David Cameron’s talk of the Big Society stepping in where public spending fears to tread – to  take advantage of the natural instincts of most legal professionals, to give advice where it’s needed and to see the rule of law upheld?

Maura McGowan QC5Anticipating her widely-praised speech at last Saturday’s Bar Conference, Maura McGowan QC, Chairman of the Bar, in this month’s Counsel magazine pointed out that more than 42 per cent of the Bar carry out pro bono work. Around 500 silks and almost 3,000 juniors are registered to accept work from the Bar Pro Bono Unit, which is itself entirely funded by the profession.

“This is a remarkable testament to the social conscience of the profession,” writes McGowan. And it’s not just the Bar. “Most, of if not all, of the major law firms devote staff time and resources to [pro bono services] in ever-increasing amounts.”

The true picture this represents of the profession contrasts starkly with some of the recent government spin about “fat cat” lawyers earning six-figure sums from the hard-pressed Legal Aid Fund, who can well afford to stomach a cut in fees in these straitened times.

“At a time when all areas of the publicly-funded profession are under attack, and not just through fees, we should be educating the public to the realisation that we are not motivated by financial greed.”

An embattled Bar

The subject of how much the Bar already contributes to society, both at home and – with such things as educational initiatives in developing common law jurisdictions – internationally, was a major part of McGowan’s speech to this year’s Conference, where she highlighted the need for the Bar to publicise and defend its role at a time when its independence and professionalism are more threatened than ever before.

She also raised the question of the role of legal regulators, complaining of the cumbersome regulatory regime they had put in place, saying “despite the quality of training we provide both at the start and throughout barristers’ careers, which we continue to improve, we are watched over like naughty children”.

Perhaps in an effort to defend the regulators, Attorney General Dominic Grieve criticised the Bar’s opposition to QASA (the Quality Assurance Scheme for Advocates proposed by the various regulators), telling the conference it would be “counterproductive” for the Bar not to engage and that “Good advocates have noting to fear.” (This provoked the response by one criminal barrister on Twitter that “neither do poor advocates and that is but part of the many problems with QASA”.) That said, Grieve was praised for attending the conference in person (unlike Lord Chancellor and Secretary of State for Justice Chris Grayling).

The Bar certainly does seem, from the comments one sees on Twitter and elsewhere, to feel somewhat embattled. It’s a perfect storm combining oppressive regulation (possibly fomented by a turf war between the various regulators) with legal aid fee cuts and a war of words in the media.

In relation to this last point, Lord Pannick QC in his keynote address told the conference that there was too much “lazy fiction” from the government on the role of barristers and that a justice secretary “should not seek to demonise legal aid lawyers”.

Speaking of advocacy, he said it “exemplifies the valuable principle that there is always another point of view, a different perspective, an alternative explanation, of which account should be taken before judgment is delivered.” The present government, he said, “does not understand or appreciate the importance of advocacy to the rule of law”.

Nor did it value the importance of judicial review advocacy as a check on abuse of power. Mr Grayling, he said, “needs a lesson on the separation of powers”. His proposals to limit access to judicial review “are based on partisan and ill-informed slogans”.

The increasing need for Pro Bono support

Highlighting the need for pro bono work, Judith Marsh from the Personal Support Unit  (PSU) told the conference that the number of people seeking help had doubled in the last 12 months, mostly on family matters. And although the PSU was set up to deal with family and civil legal problems, it would not turn away people who come to it with criminal cases.

Rebecca Wilkie, chief executive of the Bar Pro Bono unit, also noted the surge in family law cases coming to them, adding: “we try to publicise what we do but we need help to highlight the Bar’s contribution.”

This message chimed with what McGowan had said earlier. A number of organisations exist to provide or coordinate free support for those in need (see list with links below), and all of them have noted the greater need for their services and the greater pressures under which the system is now operating. As she put it in her Counsel piece:

“As cuts in funding have greater and deeper effects, and the consequences of taking who areas of work out of the scope of legal aid are felt, it must be more widely recognised just how large the profession’s contributions are to keeping the show on the road. The Bar Pro Bono Unit has seen its caseload increase by 45 per cent in some months compared to pre-LASPO [the Legal Aid, Sentencing and Punishment of Offenders Act 2012], the Personal Support Unit [which helps litigants in person] is now dealing with more than 1,200 litigants each month, the Citizens Advice Bureau in the Royal Courts of Justice saw an increase of 94 per cent of litigants in 2011/12 compared to the previous year, and there are numerous advice centres and clinics throughout the country. All of these agencies, and many more are propping up the entire system. The Bar props up these agencies. These are the groups which struggle to maintain every citizen’s right to have access to justice, which is a fundamental part of the Rule of Law in our jurisdiction.”

Cohesion and quality

In his speech to the conference, the new Lord Chief Justice, Lord Thomas of Cwmgiedd, praised McGowan’s stewardship of the Bar, and welcomed her successor as chairman, Nicholas Lavender QC. He spoke of the need for cohesion of the Bar, whether based in London or the provinces, as a profession, regardless of specialism; and of the need for a quality of service that was uniformly good, regardless of funding.

In relation to pro bono work, he mentioned the Interim Applications Court, aka “Court 37”, where a scheme led by Robin Knowles QC, of Matrix Chambers, and Mr Justice Foskett, together with two partners from City firms, keeps a young member of the Bar and a young solicitor on standby to help any unrepresented litigant to appear at short notice before a judge (for example if suddenly faced by the prospect of committal for contempt of court).

The English legal system was “much admired throughout the world”, he said. It should provide justice “irrespective of whether the client is privately or publicly-funded”.

But  what if they aren’t funded at all? It’s to fill that widening  gap that pro bono work is needed now, more than ever.

Awards

The following awards were made at the Bar Conference on Saturday, 2 November.

This year’s Sydney Elland Goldsmith Bar Pro Bono Award, went to Sarah Hannett of Matrix Chambers.

This year’s Legal Reporting Award went to Brian King, in the broadcast category, as producer of BBC Radio 4’s Unreliable Evidence, and in the written category to Owen Bowcott and Maya Wolfe-Robinson, both Legal Affairs reporters for The Guardian.

For more information on pro bono organisations and schemes:

The ICLR and public benefit

The Incorporated Council of Law Reporting for England and Wales was established in 1865 by members of the legal profession with the object of “preparation and publication, in a convenient form, at a moderate price, and under gratuitous professional control, of Reports of Judicial Decisions of the Superior and Appellate Courts in England and Wales”
(Memorandum and Articles of Association, 1870)

Our Vision

“To support the legal profession and the administration of justice by providing the official law reporting service in a convenient form and at a moderate price”

Our Values

  • Public benefit – we support the proper administration of justice
  • Commitment – we are committed to serving the legal profession and fostering the education and training of lawyers
  • Accessibility – we are your primary source for leading case law, delivered electronically and in print
  • Trust – we are trusted to deliver the highest standards of accurate and authoritative law reporting
  • Independence – we are a not for profit organisation free of state or commercial control

Free law reports

One of the ways in which ICLR provides public benefit as a charity is through the provision of free law reports.

The WLR Daily case summary service publishes on our website a summary, within about 48 hours of judgment, of any new case which we plan to report in full in The Weekly Law Reports or one of our other full text subscriber series. These case summaries are free, and an archive of them can be searched going back to 2009 on the Case Search page of our website. No subscription is needed. The reports can be printed out and may be used, if no full report of the case has been published, in court. Moreover, the full judgment is almost always available, using the Neutral Citation, on BAILII (the British and Irish Legal Information Institute).

Any judgment on BAILII for which one of these reports is available, will itself contain a link to that report on the ICLR’s website. Moreover, if a full report is available, there will be a link on BAILII enabling a reader to purchase a single case PDF at the modest price of £12.

In this way, the ICLR provides students, litigants in person and cash-strapped public benefit advice services with an archive, updated daily, of free case law materials.