Legal Personnel and Access to Justice

Legal Personnel and Access to Justice

The legal profession in England and Wales is divided into two main branches: barristers and solicitors. Access to justice depends not only on the availability of legal professionals but also on the ability to fund legal representation.

Barristers

Role and Training

There are approximately 17,000 practising barristers in England and Wales (regulated by the Bar Standards Board).

Training route:

1. Qualifying law degree (or non-law degree + GDL/conversion course)

2. Bar training course (formerly the BPTC, now the vocational component varies by provider following BSB reforms)

3. Pupillage — 12 months of supervised training in chambers (6 months non-practising + 6 months practising)

4. Tenancy — a permanent position in chambers

Key roles:

• Advocacy — barristers are specialist advocates and have full rights of audience in all courts, including the higher courts
• Drafting legal documents — opinions, pleadings, skeleton arguments
• Specialist legal advice — barristers are typically instructed by solicitors on behalf of clients (the "cab rank rule" means a barrister must accept any case within their expertise and availability)
• Queen's Counsel (KC) — senior barristers appointed by the King ("taking silk") based on excellence in advocacy

Barristers are traditionally self-employed and work from chambers (a set of barristers sharing premises and administrative support). They were historically unable to form partnerships or be employed directly by clients, but the Legal Services Act 2007 introduced alternative business structures (ABS), and the Public Access scheme allows barristers to be instructed directly by members of the public.

The Cab Rank Rule

The cab rank rule requires barristers to accept any case within their field of competence and availability, provided proper fees are offered. This ensures that even unpopular defendants or causes receive legal representation. Breaching the rule is a disciplinary offence.

Solicitors

Role and Training

There are approximately 200,000 practising solicitors in England and Wales (regulated by the Solicitors Regulation Authority under the Law Society).

Training route:

1. Qualifying law degree (or non-law degree + GDL)

2. Solicitors Qualifying Examination (SQE) — since September 2021, the SQE replaced the LPC. SQE1 tests legal knowledge; SQE2 tests practical skills

3. Qualifying work experience (QWE) — 2 years of supervised experience (no longer required to be in a single training contract)

Key roles:

• Client contact — solicitors are typically the first point of contact for anyone needing legal advice
• Conveyancing — buying and selling property
• Probate — administering estates and wills
• Commercial and corporate work — company law, mergers, contracts
• Litigation — preparing cases for court; solicitors have limited rights of audience in lower courts but can gain higher rights through additional qualifications
• Advocacy — in Magistrates' Courts and County Courts; solicitor-advocates may appear in higher courts

Solicitors can be employed by law firms, companies, government, or other organisations, and can form partnerships or limited liability partnerships (LLPs).

Fusion of the Profession

The traditional division between barristers and solicitors has been gradually eroding:

• The Courts and Legal Services Act 1990 allowed solicitors to obtain higher rights of audience
• The Access to Justice Act 1999 extended rights of audience further
• The Legal Services Act 2007 created the Legal Services Board as a super-regulator and introduced alternative business structures (e.g. Tesco Law — allowing non-lawyers to own and invest in law firms)
• Direct public access to barristers (since 2004)

Arguments for fusion:

• Reduces duplication and cost
• Simplifies the process for clients
• Other jurisdictions (e.g. USA, Australia in some states) have a fused profession

Arguments against fusion:

• Loss of specialist advocacy skills
• The cab rank rule protects access to representation
• The independent Bar provides specialist, independent advice
• Risk of large firms monopolising all legal work

Access to Justice

Access to justice means that individuals should be able to enforce their legal rights regardless of their financial means. This is a fundamental constitutional principle, recognised in Article 6 ECHR (right to a fair trial).

Legal Aid

Legal aid is government-funded assistance to pay for legal advice and representation. It is administered by the Legal Aid Agency (LAA) under the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO).

Criminal legal aid:

• Duty solicitor schemes — free legal advice at police stations and Magistrates' Courts (means-tested for Magistrates' Court representation)
• Representation orders — for Crown Court cases, subject to a means test and interests of justice test
• Criminal legal aid has been relatively protected from cuts

Civil legal aid:

• LASPO 2012 dramatically reduced the scope of civil legal aid, removing entire categories of law from scope, including:
• Most private family cases (except domestic violence)
• Housing (except homelessness and disrepair)
• Welfare benefits
• Employment
• Immigration (except asylum and detention)
• Clinical negligence (except very serious cases)
• Remaining areas include: family cases involving domestic violence or child protection, asylum, mental health, community care, and debt (where the home is at risk)

Impact of LASPO 2012:

• The number of civil legal aid cases fell by approximately 80% between 2012 and 2020
• A significant increase in litigants in person (LiPs) — unrepresented parties in court
• The Bach Commission (2017) concluded that LASPO had created "advice deserts" and recommended a Right to Justice Act
• In R (on the application of UNISON) v Lord Chancellor [2017], the Supreme Court struck down employment tribunal fees, with Lord Reed affirming that "courts exist to ensure that the laws made by Parliament... are applied and enforced" and that access to the courts is not a privilege but a right

Conditional Fee Agreements (CFAs)

CFAs ("no win, no fee") allow a client to agree with their solicitor that no fee will be charged if the case is lost. If the case is won, the solicitor receives the normal fee plus a success fee (capped at 100% of the base fee for general cases, 25% of damages in personal injury cases).

• After-the-event (ATE) insurance covers the risk of paying the other side's costs if the case is lost
• Since the Jackson reforms (Legal Aid, Sentencing and Punishment of Offenders Act 2012, Part 2), success fees and ATE premiums are no longer recoverable from the losing party — the client must pay them from their damages

Other Funding Methods

• Damages-based agreements (DBAs) — the lawyer receives a percentage of the damages recovered (capped at 25% in personal injury, 50% in other cases)
• Pro bono — free legal work by solicitors and barristers (e.g. through the Advocate charity)
• Citizens Advice — free advice on a wide range of legal and practical issues
• Law centres — community-based organisations providing free legal advice, often in areas of social welfare law
• Trade union funding — unions may fund members' employment or personal injury claims

Evaluation

Issue	Assessment
LASPO impact	Devastating for access to civil justice; "advice deserts"
CFAs	Useful but risk shifts to the client post-Jackson
Criminal legal aid	Better protected but still under pressure
Legal profession diversity	Improving but significant barriers remain
Litigants in person	Increasing; causes delays and potential injustice

Key exam points:

• Evaluate whether LASPO 2012 has undermined the right of access to justice
• Discuss whether the traditional division between barristers and solicitors serves the public interest
• Consider the effectiveness of CFAs as an alternative to legal aid
• Assess whether the cab rank rule remains justified
• Apply Article 6 ECHR and UNISON to arguments about access to justice