Will sets do away with physical chambers? Are virtual hearings working effectively? How will the publicly-funded Bar cope? We examine these questions and more in light of Covid-19 and the Bar Council’s concerning survey findings in 2020.
Joel Poultney, September 2020
How are sets considering their use of office space?
If you want a measure of how Covid-19 has changed life as we know it, consider that much of the London Bar has inhabited its chambers for centuries, but now they join the swathes of other businesses reconsidering their use of office space. Income at the Bar has been hit like the rest of our economy, and sets are looking to cut their wood-panelled overheads. Inner Temple has faced a backlash from sets of chambers for continuing with its annual rent increase of 1.3% in 2020 during the pandemic. A total of 29 sets addressed their concerns to the Inn, which agreed to waive, reduce or defer payment if the set could prove significant interruption or reduction in income.
Even before the outbreak, concerns around office space were already forming. Some sets had introduced cost-saving measures by leaving their associated Inn altogether, decreasing their space, or converting rooms occupied by members into hot-desking spaces. As several chambers are listed buildings, significant building works or adjustments to the space – like the installation of lifts – are not possible. And social distancing measures have caused some barristers to question whether listed buildings are actually fit for purpose.
However, working in a set with other members has been a crucial part of the social dynamic at the Bar, especially in London where chambers are clustered in associated Inns. The Bar being a ‘lonely profession’ had become a trope of the profession, but working in a set with other members provides the social outlet and a source of career development for junior barristers. If the Bar does imitate other inner-city businesses and scale back office space, what will substitute this centuries-long structure for social and career support?
How disruptive have court closures been and have virtual hearings kept cases moving?
As courtrooms across the nation closed, we witnessed the rise of virtual hearings in the business and property courts. According to the latest statistics from the Law Society, 85% of cases heard in these courts went ahead virtually after the lockdown measures were introduced. Figures reported in the legal press from the Rolls Building showed that 50% of cases in the Chancery Division lasted less than an hour, while 70% clocked in at under two. The speedy resolution of these cases led to praise being bestowed on virtual hearings as a way to increase efficiency and set up the commercial courts for the future. The Law Society subsequently reported that the commercial courts had almost no backlog of cases and that levels of activity were comparable to previous years. While it looks unlikely that virtual hearings will have the same dominance once the pandemic is over, you can confidently expect the business and property courts to make more use of them and incorporate them in a hybrid approach to processing cases in the future.
“With the second wave of Covid-19 breaking through, it looks like disruption to court proceedings will remain a fixture of barrister’s lives for the foreseeable future.”
This level of efficiency and optimism has not been replicated across the Bar, however. The impact of court closures was captured in the Bar Council’s recent survey findings, with 64% of all barristers surveyed highlighting disruption of court proceedings as their biggest problem with practising. Publicly-funded barristers have been hit the hardest (see below), but even those in the commercial and chancery areas were questioning whether they would be renewing their practising certificate in 2021 (9% and 10% respectively). Court closures and the resulting interruption to workflow led 80% of the barristers surveyed to state that they did not feel that people had been able to access justice at an acceptable level during Covid-19.
While the Bar Council’s findings show that barristers want to get back to court, how this will happen in a safe way is a still a key concern. With the second wave of Covid-19 breaking through, it looks like disruption to court proceedings will remain a fixture of barristers’ lives for the foreseeable future.
What is the impact on the publicly-funded areas of the Bar?
The Bar Council’s survey showed how publicly-funded barristers had been hit particularly hard during the pandemic so far, with these barristers seeing a 69% reduction in fee income. In addition, 29% of publicly-funded barristers recorded that they were uncertain whether they’d renew their practising certificate next year. However, criminal barristers have fared the worst according to the survey, with a 75% reduction in fee income recorded and 38% of criminal barristers questioning whether they will still be practising in 2021. As part of its commentary on these findings, the Bar Council issued a statement saying that the criminal Bar “needs urgent and immediate support if it is not to collapse entirely.” The Criminal Bar Association (CBA) has also stated that they’ve received little to no financial help from the government, contributing to the feeling among criminal barristers that their future in the profession is limited.
“A report from the Crown Prosecution Service Inspectorate suggests it will take up to ten years to clear the backlog of criminal cases.”
The criminal Bar was already embattled by a crippling shortage of defence lawyers and years of cuts to legal aid, but with the furlough scheme due to end and the postponement of the majority of trials causing an immense backlog of cases, the sense of urgency to take action to save this part of the Bar has only increased. A report from the Crown Prosecution Service Inspectorate suggests it will take up to ten years to clear the backlog of criminal cases. The report estimates that the backlog in magistrates’ courts had increased by 41% between early March and the end of May, alongside a 53% estimated increase in Crown Court cases waiting to be heard. Data released from HM Courts and Tribunal Service in September 2020 showed that over 500,000 cases were outstanding in the magistrates’ court, with 46,467 in the Crown Court.
The proposal from Justice Secretary Robert Buckland to temporarily do away with juries to allow for social distancing measures and ease the excesses of unheard cases was met with staunch opposition. Accordingly, the Criminal Bar Association found that more than 90% of practising criminal barristers opposed the scrapping of juries for middle-ranking offences.
However, the introduction of ‘Nightingale Courts’ across the country was met more favourably. The ten sites were set up to alleviate the backlog burden built up over the summer. Yet by September 2020, one court in Hertfordshire had been closed by the Ministry of Justice just one month after its opening. According to justice minister Chris Philp, it was only “hired for a specific period to meet a targeted operational need.” Among other steps, remote hearings and the extension of opening hours continue to be trialled as means of easing the backlog.
With the pandemic exacerbating existing problems at the publicly-funded Bar, the words spoken by incoming Bar Council chair Peter Lodder QC at his inaugural 2010 speech resonate even louder a decade later: “The message is not that barristers must leave publicly-funded work, but that in order to sustain that type of practice, they will almost certainly need to develop a mixed practice, incorporating privately as well as publicly-funded work.”
Will diversity at the Bar suffer as a result of the pandemic?
The publicly-funded areas of the Bar have a higher proportion of diverse barristers compared to the privately-funded sections. Without the size, scope and financial resources of private-focused sets at their disposal, these diverse publicly-funded barristers may opt to stop practising altogether – their departures will be of little benefit to a profession historically known for its underrepresentation. The Bar Council also highlighted the increased likelihood of diverse barristers being primary caregivers for young children and facing greater financial pressures as reasons for the Bar being at risk of seeing a drop in diversity and social mobility.
“…the way in which virtual mentoring, mini-pupillages and pupillage interviews could promote social mobility by increasing access.”
Elsewhere, the Open University recently hosted a panel event with barristers who discussed the impact Covid-19 on diversity and inclusion at the Bar. The full rundown can be found here, but some of the most pertinent points included the way in which virtual mentoring, mini-pupillages and pupillage interviews could promote social mobility by increasing access. In addition, the need to cultivate and protect the junior end of the Bar (as it accounts for the biggest representation of gender and ethnic diversity) was deemed vital. The junior end of the Bar is the most vulnerable to the impact of the pandemic, with the Bar Council’s survey showing that the earlier barristers are in their career, the higher their drop in fee income is due to the effects of Covid-19 – at the worst end, 46% of those who have less than two years’ experience in practice have suffered a 70% drop in earnings.
What work streams are appearing due to Covid-19?
While financial hardship is expected to hit the majority of barristers (the Bar Council survey recorded that 74% were already suffering or expecting to suffer financial hardship), there are some areas that will see new avenues of work appear.
On the employment side, ‘furlough fraud’ has emerged as an issue for lawyers to deal with. HMRC is currently investigating a significant number of companies for fraudulent furlough claims following tip-offs that certain businesses were claiming government support while illegally asking staff to work. As of August 2020, almost 8,000 reports of furlough fraud had been recorded. Going forward, the courts will play a pivotal role in deciding whether fraudulent claims warrant criminal proceedings.
The commercial courts recorded a drop in cases being in heard in 2019 compared to 2018, but with the perceived success of virtual hearings in this arena and the expected surge in insolvency matters as companies suffer the economic fallout, barristers in this section of the Bar are looking at potentially higher numbers of cases going through the courts in 2020, which is a trend we’re already seeing in law firms in their commercial litigation departments.