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Clarke reforms lead to ‘financial hardship’ for barristers

Lawyers complain of severe payment delays after minister’s shake-up of legal aid

Criminal barristers are blaming an overhaul of legal aid for causing them severe financial hardship as a result of lengthy delays to payments.

The Legal Services Commission (LSC), which runs legal aid in England and Wales, took over processing the payments from the courts in April. The change was an initial step in a wide range of reforms to legal aid overseen by Kenneth Clarke, the Conservative justice secretary.

The government has gone back on a deal that it made made with lawyers

Michael Turner, vice-chairman, Criminal Bar Association

The LSC admitted to Exaro that there are delays, but says that these are minor and that it has recruited extra staff to deal with the backlog.

However, barristers say that they are being kept waiting at least two months for payments – instead of a maximum of one month – leaving them unable to pay their chambers’ and clerks’ fees.

Michael Turner, vice-chairman of the Criminal Bar Association, which represents criminal barristers, told Exaro: “This has affected the entire criminal Bar. Lawyers are unable to pay their mortgages, their tax, their children’s school fees, to get to court. You can imagine, if you are not being paid at all, it causes all manner of financial hardship.”

He continued: “It is part of a cost-cutting agenda, which is destroying the legal-aid system. The government will miss it when it is gone because it will cost the taxpayer more money in the long run.”

“The government has gone back on a deal that it made with lawyers to process legal-aid payments within 7 to 14 days. It has introduced a system that, in its teething process, has caused huge amounts of hardship, with no consultation.”

A spokeswoman for the Bar Council, which represents all barristers in England and Wales, said: “Criminal barristers have gone from receiving payment in two-to-three weeks to eight weeks minimum.” The Bar Council has been working with the LSC to identify outstanding claims for fees that have gone unpaid.

One criminal barrister, speaking on condition of anonymity, told Exaro that she waited up to four months for payment and was driven to the brink of bankruptcy. She said that she was owed £50,000 and was even unable to pay the bill for her mobile telephone. She had to borrow cash from relatives to pay household bills.

Clarke’s department, the Ministry of Justice, cut the role of courts in processing payments, centralising it in the LSC. This was an initial step before the department takes over the administration of the system itself.

The LSC is due to be scrapped under Clarke’s, Legal Aid, Sentencing and Punishment of Offenders Bill  which has also triggered a clash in Parliament over limiting people’s right to a lawyer when they are accused of a crime. The bill is being considered in the House of Lords, where it had its first reading just over a week ago.

Exaro highlighted the little-noticed clause in the bill that would allow the government to carry out ‘merit-testing’ to decide whether a person arrested and taken into police custody should have access to a lawyer on legal aid. Civil-rights groups and lawyers have told Exaro that they are alarmed by the government’s intentions.

The LSC says that it recruited 38 staff to deal with backlogs and has set an eight-week target for processing barristers’ payments. A spokesman said: “We’ve made real progress actually in getting within that target.”

“We are a couple of days outside our target at the moment. Thanks to the efforts of our staff, we have done a hell of a lot. We are no longer focussing on non-urgent matters, and we just want to make sure that they are paid as soon as possible. It is not an easy process, but we are definitely making progress towards our target.”

Barristers accuse the government of hypocrisy because ministers often tell businesses that they should settle invoices within 30 days.

The payment delays come on top of cuts to legal aid last month that mean lawyers could earn nothing when they defend clients who enter guilty pleas late in the court process.

Criminal barristers say that it could result in defendants facing undue pressure to plead guilty.

Exaro has established that the Council of Her Majesty’s Circuit Judges, which represent members of the judiciary, told the government that it too was alarmed by the proposal. The council formally wrote to the Ministry of Justice to say: “It is unacceptable to link [lawyers’ pay] to an early resolution of the case. We express concern that this may lead to undue pressure being placed on an accused person, especially the more vulnerable defendants, to plead guilty.”

It continued: “The role of the lawyer is to advise. That advice may be given in strong terms but the decision [on how to plead] must be that of the accused. That is the accused’s constitutional right.”

The government introduced the change despite the judges’ concern.

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