Are pro bono lawyers playing the Government’s game?

In 2013, as we all know, the Government abolished legal aid for many types of family law matters. Obviously, when they did so they were fully aware of the problems that this would cause, not just for those seeking justice in our courts but also for the courts themselves, which would have to deal with the huge upsurge in litigants in person.

Now, unlike most other professionals I can think of, lawyers have a long tradition of providing their services for free to those most in need. It’s called ‘pro bono’ or, to give it its full name, ‘pro bono publico’ which, as I’m sure you can guess, means ‘for the public good’, words to which I will return in a moment. In accordance with that tradition, many lawyers have stepped into the breach since legal aid was abolished, freely giving their services to those who would previously have been eligible for legal aid.

The latest reported example of this philanthropic behaviour occurred in the case Re JC (Discharge of Care Order : Legal Aid). As that title suggests, the case involved an application by a local authority for the discharge of a care order. That may sound relatively straightforward, but the problems arose when, midway through the proceedings, the local authority changed its position and sought permission to withdraw their application. The father of the child, who obviously wanted the care order discharged, then had to pursue his own application for the discharge of the order.

Now, most people would understand that, from the point of view of a parent, there is no material difference between a local authority seeking a care order and a local authority seeking permission to withdraw an application to discharge a care order. In both instances the outcome being sought by the local authority is the same, namely the removal of the child from the parent. However, the Government does not understand things that way, as they treat the two circumstances differently for the purposes of legal aid. On a care application the parent is entitled to legal aid irrespective of their means, whereas legal aid to cover an application for permission to withdraw an application to discharge a care order is means tested. In this case the father was not entitled to legal aid, as his financial position placed him outside the eligibility for public funding.

As the judge pointed out, the lack of legal aid put the father at a disadvantage. Happily for him, however, a barrister was prepared to represent him pro bono at the final hearing, for which the judge expressed her indebtedness. Indeed, she ended her judgment by saying: “It is gratifying that there continue to be members of the Bar who are prepared to give up their time to assist those who would otherwise be unrepresented. Their contribution is invaluable; indeed without their assistance, the court faces an almost impossible task.”

When I came across the case on Tuesday I tweeted about it, pointing out that it was another example of judicial criticism for the lack of legal aid. My tweet gave rise to an interesting discussion, when a QC responded by expressing the view that the Bar should not act for free to cover the lack of public funding. It’s a fair point: lawyers acting for free are helping to ameliorate some of the worst effects of the Government’s policy. Professionals are working for nothing in cases where they used to get paid, which is not only surely not right but is also playing into the Government’s hands by helping them ‘get away’ with a policy which is bad for people, bad for courts and bad for justice.

The Government, I’m quite certain, is perfectly happy for lawyers to act pro bono for those no longer entitled to legal aid and pro bono lawyers, working for the public good, obviously do not want to see those in need go unrepresented. The question, however, is: is the Government taking advantage of their good intentions, or to put it slightly differently, are pro bono lawyers unwittingly propping up government policy and making it less likely that the policy will be reconsidered, possibly even encouraging further cuts?

In order to provide an answer to the question one would have to consider just how many people who would previously have been entitled to legal aid are now being represented pro bono. In other words, are the pro bono lawyers making much difference? I’m afraid I don’t have any figures and cannot therefore answer the question. I suspect that pro bono only covers a small number of cases which would previously have been covered by legal aid, but on the other hand pro bono lawyers deal with some of the most important cases, as we have seen from recent law reports.

It’s a conundrum. Is the public good best served by representing those in need, or by withdrawing support for a policy which has clearly been shown not to be for the public good? I don’t think any lawyer would like to see the profession withdrawing from pro bono work, and frankly I can’t see it happening, but the mere fact that it has been suggested by a leading lawyer (and subsequently supported by others) indicates the gravity of the situation.