A Response to Chapter 4 of the Government’s “consultation document” entitled TRANSFORMING LEGAL AID: NEXT STEPS
By Mark George Q.C., Garden Court North Chambers, Manchester
As a practitioner whose work has been mainly criminal legally aided defence work for more than 35 years this response is directed to Chapter 4 of the second consultation document. This is my personal response and not on behalf of chambers although I have no doubt there would be general agreement with these submissions.
I suspect there will be fewer responses to this second “consultation”. That should not be interpreted as a decline in interest on the part of the legal profession and certainly not as any indication that the anger in the profession has diminished. Rather it is likely to be attributable to the fact that as everyone can see this is not a “consultation” at all. We have a millionaire Secretary of State who shows not the slightest interest in the work that a large part of the legal profession undertakes on behalf of the public. He has failed to engage with the Bar at all and has taken little or no notice of submissions by the organisations that reflect the views of high street solicitors. It is clear to all that Mr Grayling just isn’t interested in a discussion or debate. He is simply going through the motions of a “consultation exercise” before going ahead with what he planned all along. He merely seeks to prove his credentials to his cabinet colleagues as a man who can deliver the cuts he promised, if necessary in the teeth of sustained opposition. Small wonder then that many in the profession will think they have better things to do with their time than waste it in trying to talk to someone who isn’t interested in listening.
I criticised the original process for being no more than a consultation in theory and the same can be said even more clearly of the “Next Steps”. Having decided not to proceed with PCT for the time being at least the MoJ has simply instituted Plan B which involves drastic cuts in defence fees. The only question posed in Chapter 4 asks respondents to choose between Option 1 designed to reduce fees by 20% and option 2 which is designed to reduce fees by 20%.
This is the Henry VIII option. The rotund 16th century monarch was known on occasions to agree to commute death by hanging drawing and quartering to mere beheading. Whilst the saving in pre-death pain and agony was not to be scoffed at and was no doubt welcomed by the victims the overall result remained the same. They still ended up dead. Since I am of the opinion that if the Criminal Bar chooses either of these options it too will end up dead you will permit me to answer “neither of the above” but thank you for asking.
You will have already received many responses both to the original consultation and to the “Next Steps” version pointing out the great financial peril of the junior
Bar. I have seen and would be happy to be associated with the views expressed by colleagues on the Western Circuit about the importance of the chambers system for training and sustaining barristers in practice. I agree that that system is in peril as a result of previous cuts and that those now proposed are likely to mean that more chambers become unsustainable and have to close. The loss not just to the profession but to those we serve is almost incalculable.
Despite having been in silk now for four years I do not think that in any way disqualifies me from commenting on the fees payable under the graduated fee scheme to junior members of the Bar and solicitor advocates. My criticisms have always been aimed at that part of the scheme since silks are obviously paid at a higher rate.
Many barristers who embarked on a career at the criminal Bar can simply no longer make a decent living from their chosen profession. Many it seems have already left. At a recent meeting Nigel Lithman Q.C., current chair of the Criminal Bar Association, said that he now regularly receives letters from members of the criminal Bar telling him they can no longer afford to continue in practice. Indeed in paragraph 4.2 of the introduction to the original consultation document the MoJ recognised that continued cuts to the present model of fees were “unsustainable”. It is interesting to note that that acknowledgment has now been quietly forgotten as we are expected to decide which of two options designed to reduce fees by a further 20% (to be added to the 131⁄2% cut we suffered in 2010-12).
There is no doubt that the MoJ is well aware of the modest level even current rates of pay produce for most juniors. At paragraph 5.34 the MoJ acknowledged that 65% of junior advocates earn under £50,000 p.a. and as the MoJ later admitted this includes VAT, this means that the figures immediately reduce to under £40,000p.a. even before major deductions such as chambers rent (often 20%) and travel costs are taken account of.
It is worth taking a few minutes to consider what a barrister does once a brief for a criminal trial has been delivered. Before the trial they are likely to have attended at least two and often three or more hearings in the Crown Court. Many of these are caused by for example the failings of the CPS in meeting court-set deadlines for the service of various papers. No fee is paid for such an appearance. At least one conference and quite possibly two will be required with the lay client. No fee is paid for a conference. Only if the client is in custody will the barrister will be paid a small amount towards travel expenses but not for the time spent at the prison. At the trial itself no fee is paid for the second day of the trial. If the defendant is convicted and the judge adjourns sentence, as usually happens particularly in less serious cases where the judge is considering a non-custodial sentence, no fee is paid for the sentencing hearing. It is clear therefore that the only part of the entire case for which the barrister will eventually be paid is the
trial itself (apart from Day 2). That is why junior barristers rely on reasonable fees for that work in order to subsidise all the days when they get no fee at all. So whilst daily fees may look reasonable when viewed on their own, once they are split to cover the other days they quickly reduce in their value. Small wonder then that many junior barristers are finding themselves in increasing precarious financial circumstances. None of this is of course news to the MoJ. As the passages from the original consultation document make quite clear, the MoJ is well aware that junior barristers are not paid huge sums in fees and will be equally aware that they cannot afford the further cuts in their already modest fees that are now envisaged.
Given this it is hard to understand why the Secretary of State continues to peddle in public statistics that are at the very least misleading. For a Secretary of State to keep making such blunders is very troubling. If he doesn’t now know what barristers are actually paid (and all the information is easily available online) then he is clearly incompetent. If he does know, then he should also know that the statistics he is using are misleading. In that case his motive for using false figures would appear to be to deliberately mislead the public into thinking fees are much higher than they actually are and that would be dishonest in anyone’s language.
At the outset of the consultation process the Secretary of State announced that QCs could earn as much as £1,300 to £2,000 per day doing criminal legal aid work. He gave no source for these figures and they were wrong. I do not believe that in the period since graduated fees were introduced in 1996 it has ever been possible for a Q.C. to earn as much as £2,000 per day from a graduated fee case and even the figure of £1,300 per day has not been achievable for a number of years. But the fact that the figures were wrong and liable to mislead the public of course didn’t really matter for Mr Grayling’s purposes.
Then in an article in the London Evening Standard on 4th June Mr Grayling claimed that “a single trial can cost more than £10 million in fees”. That claim may have alarmed many readers of the article and would have done much to confirm the suspicion that barristers are indeed a bunch of fat cats and that cuts to their fees were clearly long overdue and greatly to be welcomed by all right-thinking citizens and taxpayers. However Mr Grayling failed to specify whether this was a typical case or a real rarity. I made a request under the Freedom of Information Act to seek clarification of whether any non VHCC case could possibly have generated such high fees.
The MoJ of course will know the answer before I tell you because they replied to me dated 12th September 2013 under reference FOI/83299 but for the record let it be known that in fact in the four years 2008 to 2011 there were indeed five cases where the total in fees paid out exceeded £10 million. However none of these were graduated fee cases. As I had suspected each of the five cases was dealt
with under the VHCC scheme, so it can be seen immediately that such cases are indeed very rare and would never occur under the graduated fee scheme. The vast majority of barristers never do these cases. So again it can be seen that Mr Grayling was using figures relating to exceptional and rare cases to give a misleading impression that such cases are pretty much standard fare in criminal legal aid.
Finally only a couple of weeks ago Mr Grayling was at it again. This time he apparently told the Justice Select Committee that even after the proposed 30% cuts in VHCC cases, in what he described as a “typical” case that lasted just over 60 days and involving what he called “a shorter period of preparation” the “typical payment to a Q.C. would be around £135,000” adding for good measure and to ensure that supporters of his got the point “I still think that is fair reward for the job”. The clear inference of what Mr Grayling said was that a Q.C. would get paid £135,000 for about two months work. The Secretary of State has already been corrected on this matter by the Chairman of the Bar who pointed out that in order for a Q.C. to earn anything like £135,000 the QC would need to have done well over 1000 hours of preparation. In fact for a Category 2 VHCC (and there are no category 1 cases in preparation at the moment) the QC would need to do over 1,450 hours of preparation. Even if he or she managed to undertake 45 hours of work on that case alone each week that would take 32 weeks to prepare or about 7 1⁄2 months. Then you have to add 3 months for the trial. No one would suggest that £135,000 even for the best part of a year’s work amounted to poverty wages but these calculations show that the way Mr Garyling chose to make his point was yet again very misleading.
A reader is therefore left to ponder why the Secretary of State should prefer to indulge in false statistics about exceptionally rare cases rather than address the real problems facing the vast majority of junior members of the Bar who never do a VHCC case from one year’s end to the other, which is that rates for the junior Bar are ALREADY unsustainable even on the MoJ’s on figures and yet are apparently ripe for another slashing cut of 20%.
No one could seriously contend other than that this whole exercise is part of an ideological assault by this government on all aspects of the welfare state, of which legal aid is an important part. The government has taken the opportunity provided by the economic crisis caused by their chums in the banking industry to blame the poor and to wreak havoc on the welfare system on which many of our fellow citizens depend. To a cabinet stuffed full of millionaires the loss of high street solicitors and barristers who do mainly legal aid work will be a matter of no concern. When would any of them ever need a legal aid lawyer? But to millions in this country who cannot afford to pay for a lawyer any more than they can afford
to pay for expensive medical treatment the legal aid system is not a luxury, it is a necessity.
How else than by judicial review are people supposed to obtain redress from government at local or national level when officials seek unlawfully to close hospitals or imposed new benefit regimes that have not been properly thought through? How are those without means suppose to seek redress against slum landlords, overcharging on rent and housing them in appalling conditions? How are they supposed to defend themselves against an unlawful eviction? And what of those accused of crime? The wealthy can no doubt afford the best and when MPs, newspaper executives and celebrities find themselves in trouble with the law they go off to expensive lawyers who charge far above the legal aid rate for their services. But what of the poor? Does the government not care if the result is that more innocent people are found guilty not because of the strength of the evidence but because their lawyer was sub-standard because they could not afford a better one? Are they to have a second rate service provided by increasingly less well qualified lawyers paid at increasingly low rates of pay? That is already happening of course. Solicitors rarely attend court these days with their client, because the government stopped paying them to do so, leaving only the barrister, whose attention also has to be on what is happening in court, to provide any sort of support and reassurance for a bewildered and frightened lay client and no one to help find a document in the file or locate a witness who has failed to turn up to court.
And since barristers in criminal cases also prosecute, the damage being done to the legal profession and the exit of able barristers from the profession will affect the conduct of prosecutions as well. Many barristers could tell you stories of cases being handled by CPS in-house advocates who were clearly not up to the job and were out of their depth in trying to deal with particularly serious cases which ought to have been handled by a suitably experienced barrister. As a result decisions get taken to drop cases or accept a plea bargain that, from the viewpoint of the public interest, should not have been agreed, except that the in-house advocate was glad to get rid of the case and was prepared to do whatever it took to achieve that result. So the victims of crime and society as a whole lose out. And all this to save £15 million from the graduated fees bill, according to the briefing note SN/HA/6628 of 13th May 2013 in the House of Commons Library. The Bar and solicitors organisations have already made plenty of proposals for ways in which the MoJ could save far more than that and all such suggestions have been batted away.
At several points in this submission I have paused and wondered whether to continue or just delete the whole thing and get in with some other work. In the end I decided that despite the fact I am fully aware that this document will have
absolutely no impact on the Secretary of State’s plans to slash funding for legal aid, it was important that someone like me who has spent a whole career working in publicly funded law should record these views if only so that sometime in the future when people are surveying the wreckage of our criminal justice system someone may come upon this submission and find in it a key to understanding what has happened. It is said that for evil to triumph it merely requires that good men do nothing. That may seem over-dramatic for what is currently under consideration but let it not be said that when this government decided to impose cuts on legal services that ended up destroying the system there were no dissenting voices.
What the MoJ is planning now will lead to the destruction of the legal aid system and people generally should know that that is what this government is prepared to do. Many people in this country need access to justice and they need the assistance of legal aid lawyers to help them. The result of these cuts will be fewer lawyers available both on the high street and in chambers. Those who cannot afford to pay will lose their rights and have their very liberty put in serious jeopardy. That is a terrible indictment of the current proposals and I urge that they be dropped.
Mark George Q.C. 31st October 2013