Legal Aid Cuts: The Diversity Argument

Hannah Evans moving, factual account of life on the bottom rung of the criminal advocacy ladder has received many plaudits as an attack on the Government’s legal aid cuts. Government cuts in legal aid are a significant and important driver of the precariousness of such work.  Yet it is important to acknowledge there are several factors behind the precariousness.

One is the Government cuts. Another is the reduction in the volume of criminal defence work. A third is the self-employed model which makes it harder and riskier for people to enter the profession. This was always true, and the Bar have sought to ameliorate this through minimum payments for pupillage but it is important to recognise that it is self-employment and it’s precarious entry route which is a significant part of the problem. The Bar can either do something about it (which would mean a radical change in its business model) or it can plead for government spending to increase (or not be cut as drastically). Neither approach is unreasonable, but only one approach has much chance of happening.

The three things combined mean a reduction in the size of the Bar, the number of criminal pupillages and (unless students wake up and smell the rather poor smelling BPTC coffee) an increase in the riskiness of entry. That increase in riskiness will probably put more working class/’poster girl’ candidates off but, I am afraid, the idea that public spending cuts are going to be successfully resisted on the basis that they are necessary to solve the Bar’s diversity problems is, to put it mildly, unlikely. Fusion will come quicker, if it comes at all; with a very small rump of heavyweight barrister advocates ultimately selected from solicitors firms (or ABS/Barrister hybrids) rather than through a pool of BPTC candidates fighting for diminishing pupillages.

Indeed, in terms of quality, the criminal defence system is more fairly described as precarious than world class and yet the government is showing little sign of listening to arguments that significant cuts in real and absolute cost will further damage quality (which they will). A government that does not care about basic criminal justice is unlikely to be swayed by social mobility arguments.  Only catastrophic failures, like serious trials not running, are likely to persuade them.  There are some signs such catastrophes may shortly be upon us  but the Bar will have to sort out its diversity problems on its own.

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About Richard Moorhead

Director of the Centre for Ethics and Law and Professor of Law and Professional Ethics at the Faculty of Laws, University College London with an interest in teaching and research on the legal ethics, the professions, legal aid, access to justice and the courts.
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12 Responses to Legal Aid Cuts: The Diversity Argument

  1. Pingback: Legal Cheek » Morning round-up: Tuesday 11 February

  2. Carita says:

    Hi Richard, the bar may be a precarious lifestyle for those in it but the service they provide is world class. I’m constantantly impressed by the barristers I instruct going far beyond what their fee should allow for my clients. And I think we should keep using the social mobility argument. Our deputy prime minister is the poster boy for social mobility – yet does nothing about these cuts. The more we can shout about how hollow their equality rhetoric is the better. We might reach a conscience one day. Also, diversity cannot be sourced from solicitors firms when new entrants to that profession also cannot find jobs (or ones that are let them pay off debts and live). I spoke to a student last night who would love to go into legal aid but paying off her GDL and LPC (plus uni) means 17k as a paralegal in central London (where most jobs are) waiting for a training contract for years just isn’t feasible so she is looking elsewhere.

  3. SM says:

    Richard – provocative as ever. Could I ask you to consider whether the issue of risk via self-employment is also part of the reason why the Bar is meritocratic?

    Interestingly, the poorest parts of the criminal justice system in terms of quality is not barristers’ advocacy. I hope that isn’t complacency: I think that we are not as good as we should be and that Judges are not as responsible for standards as they once were. The difficulty, incidentally, is that judicial standards control comes with allegations (and reality) of Judges screwing over advocates they dislike. Hence the problems with QASA – the Judges don’t want to do it and the poorer the advocate, the less they want judicial assessment.

    However, proportionately, the Bar are better advocates than anyone else. That is a pretty universal view and, although one can always name exceptions, it is accurate in my experience. I think that is because the bar is risky. That risk means that you have to be on top of your game and that the top of your game has to be good. It also means that the rewards for success are large and enticing – not just (or even primarily) in monetary terms, but in terms of job satisfaction, recognition, and opportunities for advancement. This is no bad thing if you want people motivated.

    Your implicit suggestion, unless I have misunderstood, is that the Bar can sort out its own access problems by eliminating that risk and ensuring employment for junior entrants. However, I am concerned that eliminating the risk also eliminates the edge. Otherwise, there would be a cohort of young, employed solicitors challenging the Bar. That is simply not happening. If the employment model were to be valid it would be happening – solicitor advocates have been a regular feature of the last 10 years, and good advocates start to show at between 5 and 7 years call.

    Of course, if everyone is compelled to be employed, the good advocates will be employed as well. But that will not prove that employment works best.

    Consequently, the proposal that the government takes access and mobility into account is not a request for help by a profession, but an integral part of ensuring that standards are maintained and improved.

    I also agree that the Bar could do more – my own view is that every commercial set paying more than £50k for pupillage should also sponsor one publicly funded pupillage at, say, £17k. That would demonstrate commitment to the publicly funded Bar and permit pupillages to be offered to far more people. They would not necessarily be taken on, but the internal competition would improve standards and people who don’t get a tenancy are likely to be in a better position subsequently than those who don’t get pupillage.

    • Richard Moorhead says:

      Simon – the risk, edge point is an interesting one and has some merit but I think it is overplayed and under-evidenced. I think the CPS Inspectorate report (as reported in Leveson at least) did not show up significant differences between in-house and private practice prosectutors (I confess I haven’t read it yet, so take this point under caution). Depending on the quality of their methods then it would put a significant empirical hole in your theory.

      People who like risk are a particular type: not inherently more competent and with some inherent downsides. I do think, all things being equal, that an element of risk may cause people to work harder to please clients. Equally, though, which barristers succeed from pupillage onwards has as much to do with Clerks as it does with inherent quality, spunk (I use the term advisedly), etcetera. Similarly, the Barristers are the best point is not supported by the evidence, such as it is. The Cardiff Study (which I helped on) found no significant difference between barristers and solicitors (and almost all of the respondents were, from memory, of the kind of call you talk about). TBH I’d be surprised if bigger, better studies did not show up some difference in advocacy quality in favour of the Bar after all there is significantly greater specialisation; but whether it could be put down to the Hunger Games ethic is I think is questionable. It is just as likely to be the victors writing history: we succeeded therefore we must be the best.

      Whether I am right or wrong about that, the legal aid budget is not going to support the kind of incentives that make the fight to be top dog feasible (aside from whether it is desirable). It’s a political reality. It’s not much fun saying it; but there it is.

      • SM says:

        The CPS Inspectorate Report shows – for both CPS advocates and independent barristers – a concentration in the middle bracket. That makes me think the criteria aren’t developed enough, but it may not matter. The independent Bar has a significantly greater percentage of practitioners in the top bracket.

        The Cardiff study was very small sample and the question was what method of assessment worked. If that’s the question then I’m not sure that the answers based on various assessment methods help – particularly as I’m not sure that any of the assessment methods were terribly helpful. Moreover, I wonder how seriously the participants took the study – we’ve all done demonstrations that carry no practical consequences and it isn’t like Court (a point the study acknowledges). My own experience supports what I have said above.

        I suspect that a study which included measuring speed of trial, disruption in terms of matters arising, ability to deal with issues quickly – all of which the government wants to encourage as being proportionate in overall terms – would show barristers contributing the most. That, of course, would suggest a correlation to self-employment. Risk isn’t just about working harder. It’s also about being able to deal with big issues.

        I don’t see the victors point: if self-employment correlates to performance then that’s it. Unless the performance criteria are skewed, which I agree needs some work, but doesn’t seem to be being asserted.

        I do agree with you about political reality. The reality is that Judges will be forced to accept less, thereby driving the standard down. It will also reduce the quality of the judiciary, first by eliminating outstanding candidates from the pool and secondly by eliminating those who just don’t want to spend 20 years dealing with mediocre advocacy. By then the system will be broke – with appalling consequences for public confidence and vigilante justice – but it will be too late. Either civil advocacy will swim on its own, or the big commercial international work will emigrate. The sad thing is that the debate about whether this is right, partly right, or wholly apocalyptic, isn’t happening. That is because the current LC and his ministry prefer ideology to research and debate.

      • Richard Moorhead says:

        I disagree about the Cardiff study: it certainly has its limitations but it is useful in the context we are debating nevertheless. I’ll look with interest at the CPS report. You may well have a point there, I smelt a hint of it in what Leveson said, but also that it wasn’t a strong effect.

        The basic point is this: for the benefits of specialisation; more highly qualified (generally, in terms of entry grades) recruits; having relatively informed purchasers (solicitors) choose advocates (barristers) who then survive in a competitive market (which should mean a better functioning market than for solicitors); and the claimed benefit of risk to motivation, you’d expect very strong and significant differences in quality to be showing up. And they do not. That has to be true before we even get close to saying whether it is the riskiness (or competitiveness) that makes the difference. You can point to studies which have not been conducted yet but which you already know the results of. I’d love to do those studies whether they suggest you are right or wrong. There needs to be more studies. They haven’t been done. One reason is that the professions have been content to rely on their own ideology and arguments to win the day. They too preferred ideology to research (for reasons which I can understand, btw, but I also think were probably short-sighted). I won’t say a plague on both your houses because the damage done by the cuts now is real and the LC needs to pay a political price (such as it will be) for doing what he is doing. But claiming a process as fraught as qualification to the Bar is the sine qua non of quality is not borne out by available evidence and clearly makes diversity harder. Your argument was: we need to keep the process risky for quality. I am still prepared to believe there may be something in it, just not that much, particularly not at the junior-junior end, and it is simply not a muscular argument in the legal aid debate. Diversity is a problem with or without legal aid cuts and the problem is partly the self-employment model.

        Let me end though with the story. It’s a true story and it was repeated several times. When we started looking at QASA I would say, privately, I could not believe they were thinking of doing QCs. Politically it seemed a needlessly inflammatory. Non-QC barristers tended to say, with a vehemence that rather took me aback, that QASA absolutely had to deal with the senior bar. There were problems there. These are people who have survived the dog eat dog world that you say promotes quality. Their peers think some of them nowhere near good enough. What should one make of that?

        Incidentally, you’re only partly right to say if self-employment correlates to performance then that’s it. Problem 1: there is no established correlation. Saying it is so, does not make it so. Problem 2: even if there is a correlation there is a sensible balance to be struck between the benefits of any effect, the size of that effect and its drawbacks.

  4. Zone2 says:

    1. How important is this, really? The ‘Fair access to the professions’ study* was back in 2009, i.e. it was conceived, and largely completed, in an entirely different economic climate. Public focus is now on essentials such as a) cutting the deficit, and b) mitigating life-changing events such as floods afflicting Somerset and the Thames. (i.e. not only won’t the public/government fund this, but I suspect they will be disinterested even about what the bar is/isn’t doing).

    * 2012 update: https://www.gov.uk/government/publications/fair-access-to-professional-careers-a-progress-report

    2. Doesn’t the problem belong to those with control over children’s early years – parents and government, *not* the professions? Most life chances are set early. Also, successful programmes to get ‘youth with limited opportunities’ in to public schools on scholarships and in to Oxbridge then have the counterproductive effect of rendering them as ‘public school/Oxbridge’ on subsequent professional recruitment statistics, with the consequence that figures look worse than if the such programmes didn’t exist in the first place. A set which recruited 100% of its pupils from those who grew up on deprived council estates, but who earned public school scholarships and Oxbridge places, would still be perceived as elitist as the set’s recruitment figures would merely show ‘100% public school/Oxbridge’. If Oxbridge colleges are doing its job, they *will* be getting the best candidates, from the broadest spectrum of society

    3. Surely all that the professions can strive for is equality of opportunity (e.g. transparent recruitment systems, open and objective ‘assessment centre-style’ selection, et al), rather than equality of outcome? Is it not a Sisyphean task to attempt to neutralise – at 18 years of age or later – the likely (likely, not inevitable) inherent differences in potential and employability between:

    a) a child with unemployed and unsupportive parents lacking even any GCSEs themselves, or any interest in education, who attends school in a rough area plagued with delinquency and violence, whose peers include many clients of the criminal justice system, in an area in which A levels, let alone university attendance, is unusual.

    b) a child with well-educated, supportive professional parents who set boundaries, ensure that he/she eats healthily, has sensible bedtimes, reads to them as they are growing up, make sacrifices to pay for public school, encourage them to explore developmental opportunities (from overseas charity expeditions and fundraising to school ski trips), in an area surrounded by similarly-minded families, for whom university attendance is baseline standard of achievement expected of their peer group.

    Child (a)’s trajectory is set before they even leave primary school – while there are arguments that ‘something should be done’ about societal inequality per se (cf Wilkinson & Pickett, The Spirit Level), arguably the burden rests almost exclusively on those who can materially influence early life development – i.e. parents and government, not employers, and certainly not the self-employed, i.e. barristers.

    In other words, society is always going to stratified and perhaps governments should focus on using carrots and sticks to coerce parents to bring up their children better, rather than criticising the bar for the disparity in quality of raw material from at aged 18 and onwards which they have to select, at which point, for most people, the die has been cast?

    (minor corrections)

  5. SM says:

    Hi Richard,
    Your last comment didn’t have a reply button – I think because we’ve had too many exchanges.
    I’m not sure you would expect discrepancy at the very bottom. If the risk improves performance and the Bar generates quality, it would take some time for that to become apparent.
    Studies may assist but they have to be quite large and tightly defined. QASA (if it happens) will be interesting. The QC issue is as likely to be “if I’m suffering they should suffer” as anything else. But every profession has some people who have an issue with the older generation staying too long. It may be occasionally accurate, but that doesn’t mean it is generally accurate…

    • Richard Moorhead says:

      Thanks Simon. Are you know saying risk is a recent phenomenon which has not had time to show its benefits?

      Studies don’t have to be large if you are looking for big effects; but it is always better for them to large (putting aside the issues of cost and disruption).

      You might be right about the QC thing; though that’s genuinely not how it came across.

      • SM says:

        Not quite – more that the benefits will emerge after a few years of practice, rather than at the very start. That’s because the benefits grow as people settle into the job.

  6. Hello Richard and SM
    The need for more rigorous study of the issues you are exchanging on is serious and vitally important for the future of the justice system. So how about we get round a table and design and commission that research?
    You both know where to find me and we should make this happen.

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