Τhree case studies:
- the Bar,
- the SRA
- the Courts system
Individual freedom is the absence of restraint on our ability to think and act for ourselves (Porter, 2011) – a liberty, that one can argue that over the last couple of months has been compromised for the common good. It has been a couple of relentless months where the UK Government has taken unprecedented measures to mitigate the impact of COVID-19, otherwise known as coronavirus. Whilst many of these measures protect businesses, employees and the most vulnerable in society, it could be argued that these measures have done little to protect individual liberty; rather, they have stripped it back significantly, this has not left out most of the self-employed professions including the legal profession. Such restrictive measures are alien to the British public of this generation, and nonetheless the legal profession. As a result of the aforementioned, the Law Society, SRA (Solicitors Regulation Authority), the Bar Council (United Kingdom Bar Association) and other legal professional membership bodies, are streamlining and implementing new measures and legal procedures to adhere to the unprecedent situation of COVID-19.
The legal profession in England and Wales is divided between two distinct branches under the legal system, those of solicitors and barristers. Other legal professions in England and Wales include acting as a judge, as the Attorney-General, as a Solicitor-General, or as the Director of Public Prosecutions. Hence, our approach in assessing the implications of the COVID-19 effect in the legal profession will be examined from the perspective of both the Bar Council, the SRA, and the law society, both in terms of the impact that this has on individual practitioners, and junior practitioners, i.e., the Young Bar and the Trainee Solicitors, and the running of the legal system, i.e., the judiciary, court system and legal aid.
The Bar’s Council’s message is clear:
“The effective administration of justice is fundamental to our society. It must be maintained, but its delivery must be consistent with the Government’s health advice and take account of valid concerns about the spread of the virus and the risk of infection.”
The Covid-19 pandemic has indeed, created an unprecedented time of global uncertainly. Its impact is all pervading, and its repercussions are being felt at every level in the society. There has never been a more acute imperative for justice to be upheld. In England and Wales, the Bar is essential to the delivery of justice not just in ordinary, but in extraordinary times and the Bar council has been centrally involved in responding to the daily challenges of making that happen. The government acknowledged the vital role of the Bar by designating many barristers as essential workers in March and reiterated its importance in successive announcements since. The Bar is working together with the Specialist Bar Associations, the Circuits, Ministry of Justice (MoJ), HMCTs, the Legal Aid Agency, the senior judiciary, the Bar Standards Board and the Inns of Court, in an effort to overcome the COVID-19 challenges for the legal profession. In a report published just earlier this month, by the Bar Council titled, “Concerns won’t just disappear: Barristers back Treasury on economic impact of coronavirus”, Amanda Pinto QC, Chair of the Bar Council, elaborates on the experience of thousands of barristers across England and Wales, being locked out of government support measures. “We are alive to the very real financial repercussions for barristers of the impact of Covid-19 on their practices and, as a result on chambers. We are pressing the government to include the Bar in any financial support package.” The Chair further adds, that “The Bar is doing everything possible to mitigate the impact of COVID-19 on our profession and the justice system generally. The situation is changing rapidly, as is the government advice too.”
The Criminal Bar
The coronavirus crisis could precipitate the collapse of criminal legal aid as we know it – the Law Society of England and Wales has warned a few days ago, as it submitted a supplemental response to a consultation on interim proposals of the criminal legal aid review. This week the Law Society warned that there were already 124 fewer criminal legal aid firms than in 2019 – a drop of 10%, and far fewer than the 1,861 firms that existed in 2010.
The Criminal Bar was already fragile, and the survival of the criminal bar for both chambers and individual practitioners, is now at stake. Unfortunately, financial relief from the Government seems to be almost out of reach. As per a CBA Survey, the impact of Covid-19 has caused a level of disruption unprecedent in recent history. 120 criminal firms have collapsed with more to follow, the Law Society demands more from government proposals.
“As a result of the pandemic, work for criminal legal aid firms has fallen through the floor – leaving many hanging on for survival,” said Simon Davis, Law Society president. “Without urgent intervention, there is danger that many more duty solicitor schemes will face imminent collapse”. Simon Davis continued: “There are a growing number of areas of the country which do not have any defence solicitors. This puts the very notion of British justice in jeopardy – with victims left in limbo and the accused potentially deprived of a fair trial.” Clearly the above, may be compromising both the access of the accused to legal representation and the individual’s right to a fair hearing. It is indeed pertinent, that the preservation of the access to justice and the rule of law is maintained, especially for the ones without the means to provide for it.
The Young Bar
Now, turning to the Young Bar, there has been a grey area/gap in the financial support regulation in regards to particularly vulnerable people, such as the Young Bar, whom the Treasury Committee report identified; those newly self-employed, who through no fault of their own, don’t have a 2018-19 tax return – 71% of barristers in their first seven years of practice, won’t be able to survive past October, and over half of all self-employed barristers will have left the profession by then. This is already a trying period, for both the new pupils and the ones recently completing pupillage; acquiring or even maintaining their tenancy in chambers.
The responses to the most recent survey this week of the Junior Chancery Bar make for a painful reading.[i]
It suggests that while a small few have been largely unimpacted, most have been significantly affected and some junior barristers have had drops in work and income of 90% or more – with a lot of them not being able to pay their bills whilst at the same time be excluded from the PD51Z[ii]; they are found not to be eligible for any government grants due to the fact of having average earnings marginally higher than the threshold of the bill which is held on £50k per annum.
According to the Bar Association’s calculation is that many junior barristers will now have exhausted their aged debts, and so will not start to come under increased financial stress. With the government launching the Bounce-Back loan scheme (BBLS) to support businesses that are losing revenue and seeing the cashflow disrupted as a result of the Covid-19 outbreak up to £50,000 (depending on turnover). Many self-employed barristers were likely to be found eligible to apply for a loan, however, this was not the case for the young Bar.
The SRA – Compliance culture/ Professional Services: Regulatory challenges during the pandemic
The pandemic is likely to have long lasting impact on firms in relation to where and how legal services (and support services) are delivered. As well as considering the consequent risk management and regulatory implication, it will be even more important for firms to consider a restatement of their culture, ethical values and purpose. The SRA has declared that it is taking a proportionate approach during the coronavirus outbreak, including in relation to enforcement. The briefing looks at what this means in practice and at key areas of regulatory risk in the current circumstances. It will be important for firms to promote and provide learning and development on compliance as well as regulatory and risk issues during this period. Whilst compliance officers and their teams will often be a visible presence around the office when offices are open, it is important to replicate the visibility whilst people are working from their homes.
The SRA expects firms to continue to self-report and maintain risk registers to ensure that it is able to do so. It goes on to state that Compliance teams may need to adapt to reach out on different platforms, whether by phone, email, joining virtual team meetings, employee forums and/or training. It will also be important to engage not only with practice leaders and partners, but also business operations and employees at different levels across the firm.
Remote working will undoubtedly be with us for some time to come and we anticipate that many people will continue to work from home much more regularly even when the pandemic is over. Good working practices, systems and policies introduced now will stand firms in good stead for the future in managing risk and in meeting their regulatory obligations.
Immediate action to save the Justice System
Solicitors’ leaders are warning that immediate action is needed to save the justice system as criminal legal aid law firms continue to go under at an alarming rate. The criminal legal aid system is reaching breaking point, even before the impact of Covid-19 hits home, says the Law Society of England and Wales, with government figures showing that as of 3rd June 2020, there are 1,147 firms now holding a criminal legal aid contract. Worryingly that means there are already 124 fewer criminal legal aid firms than the 1, 271 in 2019, a drop of 10%, and far fewer than the 1,891 firms that existed in 2010, as per the Figures from Justice on Trial 2019 report.
Simon Davis, the Law Society president said: “The Ministry of Justice must take action to address this extremely disturbing fall in the number of criminal legal aid law firms – a situation which is only likely to spiral in the current circumstances – “if the criminal defence sector collapses, the government will be forced to rebuild it via a public defence service, which would cost the taxpayer far more and is not what a proper system of justice deserves”
There are increasingly large areas of the country where there are no defence solicitors available. While those facing domestic abuse and homelessness or who need legal support around mental health issues all face being left without the advice and representation they need. When he outlined the proposed changes in 2015, Justice Briggs explained how reforming the courts would demand behaviour changes from those in the judicial system, as well as a ‘willing suspension of disbelief’. Unprecedented times can be a huge motivator for change; which is why the past few weeks have led to a rapid surge in the digitisation of the courts. As companies around the world move to working online due to Covid-19, the question of whether the courts can stay open in an online format has been widely debated. Those who argue that a functioning justice system is crucial to society, especially in uncertain times, prevailed. However, the question of how to keep the courts open without compromising the justice system, or the health of practitioners, is a tricky one. According to an article by the Law Gazette, on the 19th March the Lord Chief Justice announced that civil and family courts are to take place via video, and that ‘any legal impediments will be dealt with.’ The first fully ‘virtual’ hearings are now being undertaken – whereby judges, practitioners, and witnesses attend court not in person, but via video link.
As per the SRA’s guidance, titled “Response from the So Regulations Authority (SRA)”, a few key areas where firms should have contingency plans include:
The event that the firm’s COLP, COFA or money laundering compliance officer are unable to meet their duties whilst short term illness of a week or two may be covered by a deputy, control of client money, especially the completion of five-weekly client money recon finance personnel become unavailable. The challenges of remote working and social distancing may also introduce delay in the Accountant’s Reports. The SRA currently acknowledges that these are exceptional circumstances.
Young Solicitors and SRA’s approach
The SRA has announced changes to its rules on testing requirement for the Legal Practice Course (LPC), which is a pre-step to the 24 months qualifying vocational period, to reflect the government and NHS guidelines on coronavirus COVID-19 pandemic protection. Traditionally, the LPC has required face to face assessments particularly on subjects that are by their nature interactive, such as client interviewing and other elements of its “skills assessment” and “elective subject” sections.
Courts and digitalisation in the Covid-19 Era
On the 24th of March, Fowler v Commissioners for Her Majesty’s Revenue and Customsmade history as the first Supreme Court case to be held entirely virtually. This promising start to video judgments has left lawyers scrambling to adapt quickly to the new digitised formats – but has shown courts adopting an optimistic approach to maintaining a fair justice system using technology. Firms and chambers have already started to publish guidelines on how they will approach fully virtual trials whilst social distancing restrictions are in place.
Although temporary, these changes may allow some proceedings – ones which may be better suited to digital hearings – to be heard more easily and cost effectively via video in future. For example, beyond the Covid-19 crisis, virtual hearings may actually be more suitable than face-to-face hearings in some cases – where it is damaging for parties to meet in person, or where it is costly for parties to join proceedings in person, for instance. In future, therefore, digital proceedings may allow for a more tailored and accessible justice system generally. Perhaps Covid-19 has been the catalyst needed for courts to make changes – but it remains to be seen whether any of the positive outcomes of a temporary virtual judicial system will be extended beyond the Covid-19 crisis.
The future of the barristers’ profession, like others, hinges on such small changes to government support. The Western Circuit has carried out a survey which reveals that civil hearings are down 75% over the Easter period this year, but also reflected the disproportionate impact Covid-19 is having on the young Bar.
Eason Rajah, the Chair of the Chancery Bar Association, in a recent e-bulletin, comments on the position of those with County Court or FTT practices, “work has fallen off a cliff”; apart from the High Court, most courts have struggled to continue business as usual and few hearings are going ahead remotely.[iii]
HMCTS has publicised a risk assessment which allows regular review of safety of building which can be found here.
The current status of courts and tribunals building as of 10 June 2020 is as follows:
- 188 open courts – open to the public for essential face to face hearings;
- 92 staffed courts – staff and judges working from these buildings but are not open to the public.
All other parties involved will be via video or telephone hearings;
- 61 suspended courts – there are temporarily closed;
All the efforts of the UK Government to respond to the pandemic, have been introduced with the adoption of the Coronavirus Act 2020, which, regarding the delivery of justice, expands the availability of video and audio link in court proceedings. In particular, specific civil applications in the magistrates’ court are now allowed to take place by phone or by video. Furthermore, the use of video and audio link is now allowed in criminal proceedings, including fully video and audio hearings in certain circumstances. Finally, and in line with the principle of transparency of court proceedings which is a fundamental element of the Rule of Law, the public can now participate in court and tribunal proceedings through audio and video.
Jury Trial Re-Start Working Group
Whilst many of the Bar Associations work closely with the Law Society and specialists to find practical solutions for the resumption of the hearings across the country, the CBA (Criminal Bar Association) along with specialist court use representatives and now the input from circuit leaders which reports to the Lord Chief Justice, is looking into realistic solutions for the resumption of jury trials as quickly and safely as possible. Among other ideas being considered, is the use of more than one court room per jury trial.
None of us know for how long the coronavirus pandemic will last or what the long terms effects will be, but it is clear that the way we work and operate will have changed forever. Looking to the future, the hope is that as people settle into their “new normal” that life begins to re-start and as such, so does business and legal services. Looking at the wider legal services market place, we are likely to see the loss of some firms that don’t make it through this period, we are also likely to see consolidation in the market place as well as diversification from firms looking to reduce their reliance on work-types and reduce their future work.
Things are changing fast and as the Chair of the Bar Council, Amanda Pinto QC, has reiterated on various occasions, the Bar is in daily discussions with the Ministry of Justice and the Judiciary. The Bar profession has an impressive record of adapting to change. In these extraordinary circumstances, there is no doubt, that the Bar will adapt, but it is pertinent that the government must play its part in ensuring the sustainability of a strong, diverse and vibrant Bar to safeguard access to justice for all in the future. The same stands for the law firms, as it looks at the moment, for the ones that will manage to survive the recession, we will be looking to the rise of new partnerships and the possibly the merging of old firms that their current structure will not be able to adjust to the new circumstances post the COVID-19 era. However, these circumstances are unprecedent, hence we should be having an open mind as to the new legal market form and structure post COVID-19.
Finishing on a positive note, there has been
an unprecedent rise of pro bono work undertaken during the COVID-19 era.
According to Rebecca Wikie, Advocates’ CEO, (the Bar’s charity), that provides
free legal assistance, barristers have been incredibly generous with their time
whilst at home. Barristers from a variety of sets, volunteer their time to
support members of the public who need free legal help and for those who are unable to
obtain legal aid and cannot afford to pay. The charity will soon hit 500 pieces of work
placed this year, which is a huge record for recent times and a reflection of
the immense commitment of the Bar to ensuring justice is available to all.
[i] E-bulletin – Chancery Bar Association, Newsletter – 18 June 2020, “Message from the Chair of the Association, Eason Rajah QC”
[ii] This practice direction is made under rule 51.2 of the [CPR]. It is intended to assess modifications to the rules and [PDs] that may be necessary during the Coronavirus pandemic and the need to ensure that the administration of justice, including the enforcement of orders, is carried out so as not to endanger public health. As such it makes provision to stay proceedings for, and to enforce, possession. It ceases to have effect on 30 October 2020.
[iii] E-bulletin – Chancery Bar Association, Newsletter – 18 June 2020, “Message from the Chair of the Association, Eason Rajah QC”