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Mr Geoffrey Cox (Torridge and West Devon) (Con)
It is a great pleasure to see you preside over this debate, Mr Bone. I am pleased to have secured a debate on such a topical and important subject, and to be able to welcome the Under-Secretary of State for Justice, my hon. Friend the Member for Huntingdon (Mr Djanogly) to his position. It is my first opportunity to do so in this Chamber, and I hope that he is enjoying the multifarious complexities of the task with which he has been entrusted, because it is an unenviable one. In many respects, he inherits an unfortunate and complicated history, and it is one through which he will no doubt tread with a combination of charm, urbanity and skill. Certainly, he will need all three.
I should declare an interest here. For the last 28 years, I have made my living at the Bar, a large part of which has been at the criminal Bar. Therefore, it is right for me to declare at the outset of this debate a strong financial personal interest. It was that interest that has caused me, over the past few years, to hesitate long and hard before bringing to the Floor of the House any issue to do with the professional structure or remuneration of the profession of which I have been a member for so long. It is precisely because of the gravity of the current situation and the need for a voice to be raised in defence of what are often minority, quiet and civilised professional values—they lack a voice in the discussions of the House—that I decided to overcome my hesitation. Given that I have been contacted by many members of the Bar and that I head my own chambers in Lincoln’s Inn fields, I can say that I am conscious of the interests of many junior and young barristers who are affected by the current predicament with which the criminal Bar is faced, and with those qualifications and caveats, I felt that it was right to bring such issues to the House’s attention.
At the heart of the criminal justice system is the professional exercise of the art of advocacy. The efficient conduct of cases in the courts is the essential pivot around which revolves the entire administration of justice. Incompetence and poor quality in the representation of prosecution or defence will inevitably lead to the failure of justice, prolonged delays, aborted trials, appeals and much greater cost. I hope that the Minister and I will at least agree on that important statement. It goes without saying that the heart of the criminal courts in our system is the adversarial combat between advocates on either side. If that combat is conducted with expedition, skill, relevance and a strict fidelity to the relevant issues in a case, it assists the judiciary to make its decisions. The judiciary knows that, which is why it has a direct interest and a powerful voice on behalf of the quality of advocacy in our courts.
The criminal Bar is the profession of specialist advocates in the criminal courts. It has a long and proud tradition. Its codes and professional atmosphere are exacting and competitive. It upholds high standards, celebrates and seeks to emulate the examples of luminaries of the past and present. Those include names who have bestridden the parliamentary stage in ages gone by, including Carson, Smith, Hastings, Marshall Hall, Peter Rawlinson and—I dare to add a name of which I am particularly fond—Marshall-Andrews.
A strong emphasis on ethical conduct is instilled into the novice barrister from his earliest experience. On the consistent reliability of such standards of moral integrity and of skill in the efficient dispatch of cases rests the trust of the judiciary, which knows that the accuracy and justice of its decisions are substantially dependent on the quality of those who represent Crown and accused. It is largely from their senior ranks that the judiciary are drawn.
Furthermore, the availability of an independent, fearless and professional cadre of advocates, who are obliged under the rules of their profession to take up a case regardless of the unpopularity of the cause or the power of the opponent, is a vital constitutional protection of the individual. It is by the efforts of such men and women in seminal cases throughout the years that many of the rights that we take for granted today were first established. No dictatorship or tyranny can long tolerate the existence of such a profession. Therefore, the continuing vigorous existence of the criminal Bar is a potent public good. I am afraid to say that the previous Government in their language and conduct did not appear to recognise that. It is important to many in this House that this Government—I dare to say our Government—recognise the value to the public interest of the criminal Bar and its professional values.
If this debate—I look at the Minister directly here—could elicit from the Minister a firm statement in support of the value of the criminal Bar and its professional values, it would have done some good. It would give enormous encouragement to many hundreds of junior barristers and others to believe that this Government were going to restore to pride of place in their considerations of the criminal justice system a respect and understanding of professional values.
For 20 years now, the Bar has been joined in the practice of advocacy in the higher courts by solicitor-advocates. A previous Conservative Government accepted the argument that the public should have the choice not to be represented by a barrister. I do not believe that the criminal Bar as a whole was, at the time, particularly resistant to that innovation. The view was held, and I agreed with it, that provided the criminal Bar occupied a level playing field it would, by virtue of its specialisation and standards of training and skill, be able to hold its own. Few believed back then that many solicitors in busy litigation practices would have the time or the inclination to visit the courts, and for some time that is how it proved.
However, that is no longer the case. For good or ill, higher courts advocates are now established and increasingly a prevalent feature of the criminal courts. As pressure on the available rewards have increased in other areas, the lure of the advocacy fee has been impossible to resist. The solicitor occupies the shop window. He is also the contractor with the Legal Services Commission for the provision of legal services. If a barrister is to be engaged, it is he who must refer the case. Traditionally he has done so by seeking out barristers whose reputations and proven records have staked a claim to his attention.
However, the solicitor’s position in the high street and in the police station means that he is able if he wishes to do so—and why should he not wish to do so?—to represent his firm’s client from the inception of criminal proceedings through to their end. If he is unable to manage all the case load that his practice brings him, he is now able to return some of it to another solicitor-advocate, who, as I understand it, can often be expected to split the fee and to return the favour some time later. In an age of decreasing margins, these are attractive options. Thus, the criminal Bar is being gradually stranded by a steadily withdrawing tide of work.
At the same time, the criminal Bar has sustained a consistent and dramatic reduction in the rates of legal aid for advocacy in criminal cases. Very few citizens are able to bear the cost of a serious criminal trial. However, the last Government made legal aid available without means-testing to anyone charged with a sufficiently serious offence. That was no doubt an attempt to control the costs recovered by a defendant in the event of acquittal and the costs of the bureaucracy associated with the assessment of means. However, it brought about some startling results, such as the sight of MPs being granted legal aid for expenses abuse cases and the sight of millionaires being represented on public funds. It also meant that the last Government in effect took predominant control of the market, making individuals less likely to pay for their own representation while simultaneously taking an axe to the remuneration.
I ask the Minister if he accepts that the rates of remuneration of the criminal Bar have been severely reduced; I hope that he does. In the course of my speech, I intend to ask him a number of questions, to which the answers would be welcome.
Let me give some examples of how the rates of remuneration of the criminal Bar have been severely reduced. For the most complex very-high-costs cases that are more than 60 days in length, the rates of remuneration have been actually reduced—not in real terms, but in actual terms, in the sense that these are headline figures and, therefore, have been cut by up to 20% since 2004. This year, according to the Ministry of Justice’s own figures, remuneration for cases of between 40 and 60 days has been reduced by 39.5%. On any view, those are extraordinary reductions. A barrister in a complex case can now be working for between 20% and 39.5% less than he was either in 2004 or in 2009.
Finally, on the very day that the House dissolved, 6 April, the statutory instrument was laid, amid rumours that civil servants were being bussed in at weekends to complete the processes, that enacted a further cut of 13.5% across the board in remuneration over the next three years. Another 13.5% was simply wiped out from the margins that criminal barristers are able to earn.
On any view, those examples, which are typical of the general trend of the last seven years, represent a severe contraction of public funding for the criminal Bar. The combined effect of all these developments has been to cause a crisis of confidence in the profession; I do not believe it to be an exaggeration to describe it as that.
The criminal Bar knows that it cannot expect special treatment and in the current financial climate it knows that it has no right to ask for such treatment. However, I believe that the present Government must take into account this recent history in responding to the imperative need to curtail public expenditure in the next few years. If the criminal Bar is to survive, with the powerful public interest that it represents, the Bar, the Law Society and the Government must be prepared to work together to rectify some of the competitive disadvantages, imbalances and unintended consequences that have resulted from recent changes.
My hon. Friend the Minister will know that the leadership of the Bar has been active in promoting imaginative—even radical—ideas to help to resolve these problems. For example, it has set up a working group to find and suggest to the Government savings in the criminal legal aid budget. These savings include those that would accrue from the lifting of the present rule that prevents the use of funds restrained pending trial, under the Proceeds of Crime Act 2002, from being used to finance the legal costs of a trial. I strongly commend to the Minister that modest proposal.
However, by far the most significant proposal is for members of the Bar to form companies, which would be given the unwieldy working title of Procure Cos. Those companies would become direct contractors with the Legal Services Commission for the commissioning of legal services. This idea does not meet with universal accord within the profession. It is revolutionary in its ramifications. These new entities, which would be controlled by barristers, would commission solicitors to carry out legal work for the first time, thus standing on its head the traditional, centuries-old arrangement.
It is not at all clear how such a system would operate. At the moment, an advocate at the criminal Bar is retained in a competitive market, in which professional ability is at least a factor in his selection. Even where the barrister is unknown to the solicitor, the latter will have received an account from the barrister’s clerk of the barrister’s strengths and recent experience and he will have been given a choice, perhaps, of one or two other barristers. The solicitor, with his professional knowledge of the case, will choose the barrister who he thinks will best suit his client.
Under the new proposal, however, the clerk in the barrister’s chambers—the chambers from which the Procure Co that is run by the same barristers has agreed to commission services—will have only the accused to consult. There will be no professional intermediary. That is difficult, for all kinds of reasons, for many within the profession to contemplate.
There are further major reservations. How will the new entities set up in sufficient time the administrative and commercial infrastructure required to manage all the complex considerations that are involved both in commissioning services from other lawyers, experts and others, and in competing in a tender exercise for contracts, given that they have no established trading history on which to assess the viability of their bid, particularly if the contract is awarded on price?
However, I say to the Minister that, if these problems can be surmounted, there are clear public gains from allowing the Bar to have access to the commissioning of legal services. First, the Bar is the specialist advocacy profession. The preparation and presentation of a case in court is the major part of the legal services that are provided in criminal litigation and yet the profession that specialises in that core service has until now been unable to participate in managing the delivery of that service. If the Bar is widely acknowledged—as it is—to be a driver of quality and exacting professional standards, there can be nothing but good in allowing it to compete. Secondly, since the cost base of the Bar is low, that will help to keep down costs.
Nevertheless, I say to the Minister that it is plain that, if the Government are interested in this idea, it is essential that the entry of the Bar into commissioning legal services is facilitated by rules that it will be able to adhere to and conditions that it will be able to fulfil from a standing start. The criteria for the awarding of contracts must attach an appropriately high priority to the quality of advocacy and the depth and range of experience in specific areas that are offered by the potential bid. To that end, the promotion of a system of quality-assured advocacy standards, with defined levels of competence, is not only inherently desirable in itself but a necessary element. Similarly the Bar must be given adequate time to prepare for such massive and fundamental change to its structure.
If the Government believe that there is merit in this idea, the Minister must soon indicate so and begin to consider a timetable for change. We know that there will be a legal Green Paper this year. Will it contain the Government’s preliminary view of these proposals for new structures? What view do the Government take of the proposal to pay a single fee for a case without the ring-fencing of the advocacy element within it? As the Minister knows, that alone could dramatically increase the competitive imbalance that I have described.
When will the criteria for the new tender for contracts be set out? What will the Government learn from the recent civil family tender? I understand that a serious problem has arisen from exaggerated overbidding. Some solicitors have applied for contracts far beyond their capacity to cope with; others have been careful to apply only for what they do well. The Ministry scaled down the bids across the board, leaving some well-established firms of good reputation in the field with nothing. How will the Minister prevent such mischief from happening again?
The last Government proposed a draconian reduction in the number of solicitors’ firms able to offer legal services in the criminal courts. I do not hesitate to say to the Minister that although I understand the advantage of having fewer contractors, those considerations must be tempered by a realistic awareness of the damage such an unmitigated approach will do. I hope that the new Government, whom I am proud to support, will measure the impact of their reforms carefully and calibrate them according to clear and transparent principles and criteria. Those must include, above all, a high if not decisive regard for professional quality and skill in both sides of the profession and a clear commitment to entities with proven merit and track records in the provision of legal services in the criminal courts.
I conclude with four critical questions. First, will the Minister assert the Government’s belief in the value of the independent referral criminal Bar as a professional source of essential expertise and quality in the provision of advocacy in the criminal courts? Secondly, will he accept that the criminal Bar has already sustained recent, substantial and even severe cuts in remuneration and that it should not, as a result, have to sustain a disproportionate burden as a result of additional measures of that kind? Thirdly, will he accept that the Bar must be afforded adequate time to adapt its systems and administration before the introduction of the new round of tendering for legal aid contracts?
Mr David Hanson (Delyn) (Lab)
The hon. and learned Gentleman says that he wishes funding for the profession to be safeguarded. Given that the comprehensive spending review for the Ministry of Justice proposes a £2 billion cut in its £9 billion budget, where does he think that should fall—prisons, probation, sentencing or other issues? Or does he oppose the Government’s CSR proposals for the Ministry of Justice?
Mr Cox
I recognise that the Government must find £2 billion out of a budget of £9 billion, but I ask them to recognise that the Labour Government imposed 13.5% in cuts over the next three years, against a background of consistent reductions in remuneration over the previous seven years.
I say to the Government—I was careful to word my question as accurately as I could—that any burden sustained by the criminal Bar should be proportionate and take into account the measures already passed. I have not asked for the Bar to be excluded from the exercise of necessary retrenchment, nor does the Bar ask it. It asks for fairness and proportionality. It asks for what has gone before—recently, and as a result of the Government to which the right hon. Member for Delyn (Mr Hanson) belonged; the statutory instrument was laid on 6 April—to be taken properly into account.
Thirdly, will the Minister accept that the Bar must be afforded adequate time to adapt its systems? That is crucial, as I said, if the Bar is to enter the commissioning process. It is also important that the means of entry should be facilitated so that it can do so from a standing start.
Finally, will the Minister accept that it is fundamentally in the public interest that the Bar should be able to enter the competitive market for legal aid contracts? If so, although the profession is deeply uneasy about the revolutionary changes that it would impose, as I think he knows, the Bar and its leadership are prepared to work with him and this Government to find new structures and new savings in the criminal legal aid budget. That answers the question asked by the right hon. Member for Delyn.
I hope and believe that in partnership and amity, and above all with a respect for the professional skill, expertise, quality and values represented by the criminal Bar—a novel departure from the attitude of the past decade—solutions can be found, and the vital public interest represented by the criminal Bar can be preserved in its continuing prosperous existence.
Mr Peter Bone (in the Chair)
It might be helpful for Members to know that I intend to start the winding-up speeches no later than 20 minutes to 11. Before I call Mr Turner, I remind Members that it is normal practice to be here at the start of debates.
Karl Turner (Kingston upon Hull East) (Lab)
I apologise for being late, Mr Bone. I am afraid that public transport let me down.
I declare an interest as a criminal lawyer. I was called to the Bar in 2005 and practised criminal law from a firm of solicitors in Hull for a number of years. Shortly before my election to the House, I was in the latter stages of pupillage at my local chambers, of which I remain a member. I hope, therefore, to bring practical experience to the debate as both a junior member of the criminal Bar and a solicitor who has practised criminal law and been heavily reliant on public funding.
In the time allowed, I hope to dispel a couple of myths. The first is that publicly funded criminal lawyers are taking excessive sums from the public purse. In my experience, the opposite is true. Colleagues at the Bar work long hours and receive modest fees for their services. In preparing for this debate, I asked a criminal solicitor in Hull, Mr Waddington of Williamsons solicitors, what a 25% cut to his criminal practice would mean to his business. It is worth mentioning that Williamsons is the biggest criminal firm providing services to my constituents. Mr Waddington described the prospect of 25% cuts as “disastrous”, and greater cuts as “catastrophic”.
Although no one would expect Mr Waddington to clap his hands at such a prospect, it is important to mention that he was also concerned about access to justice for the most vulnerable. As a law-abiding citizen, as he put it, he was particularly concerned about the potential effects on innocent parties in criminal proceedings, such as victims of crime and witnesses who might be subject to cross-examination by unrepresented defendants if criminal solicitors and barristers were forced to refuse instructions.
In my experience, colleagues at the criminal Bar and solicitors do not feel that the previous Government were overly generous during the past 13 years, but the cuts threatened by the new Justice Secretary and the coalition Government are likely to force them to close their doors for good.
Despite the consistent accusations of irresponsible spending, it is indisputable that the previous Labour Government streamlined and made efficiency savings, especially in criminal legal aid. As recently as March, the previous Justice Secretary, my right hon. Friend the Member for Blackburn (Mr Straw), said:
“The Government strongly believe that there must be a significant restructuring of the provision of criminal defence services in order to achieve greater value for money from legal aid, while still ensuring fair access to justice and enabling legal aid providers to remain profitable and sustainable.”—[Official Report, 22 March 2010; Vol. 508, c. 13WS.]
That is a crucial point. The solicitors and barristers to whom I speak are genuinely concerned about their practices and about whether they will be sustainable after £2 billion of cuts to the Ministry of Justice budget.
It is true that the Labour Government carried out significant reform of legal aid. Most prominently, Lord Carter carried out a review of legal aid procurement, a key aim of which was to reduce criminal defence rates. Those were substantially reduced—by 13.5%—but I am not saying that what happened was perfect, because I am aware of examples where injustice resulted. Cutting costs is clearly a priority for the Government, but at what cost? The Justice Secretary has confirmed that his Department will play its part in reducing public spending, but I submit that legal aid has been stretched enough. If the coalition Government try to stretch legal aid yet further, I fear it will snap.
The Labour Government recognised that legal aid could not reasonably be exempt from efficiency savings and, of course, I recognise that the criminal legal aid bill is more than £1 billion. However, I urge the Government to consider a number of issues in the comprehensive spending review. Cuts to criminal legal aid may well lead to defendants being unable to access appropriate legal representation, because criminal practitioners will decide that enough is enough, and that may compel defendants to represent themselves. That will inevitably lead to the system being clogged up, as defendants battle through what is a procedural and legal minefield. Miscarriages of justice may result from poor-quality advocacy caused by defendants representing themselves, or by the inappropriate use of inexperienced advocates, and there may also be expensive delays in court time.
Cuts to legal aid for criminal cases have already encouraged the use of employed higher court advocates, who offer less experienced representation. Speaking from my experience as a criminal solicitor and, indeed, a junior member of the Bar, I can say that there are some good-quality higher court advocates. However, the truth is that the Bar is very special. The training for it is very different, and there is no comparison between higher court advocacy and barristers. The Bar is far superior because barristers do the job all the time. Higher court advocates will waltz into a Crown court once a fortnight or once a month, but a member of the Bar is there continually.
Mr Robert Buckland (South Swindon) (Con)
The hon. Gentleman makes a very powerful point about the lack of experience of higher court advocates. Would he agree that one of the absurdities of the Crown Prosecution Service’s obsession with using higher court advocates is that people who are highly qualified in terms of civil service work are taken out of the system and away from the work that they should be doing in reviewing cases? That work is then delegated to often less experienced assistants within the CPS. The public sector unions frequently complain about that current fad, because it puts employees within the CPS under pressure.
Karl Turner
I am grateful for that intervention. I could not agree more with the hon. Gentleman or have put it better myself.
Criminal practitioners are still coming to terms with a number of the significant reforms introduced by the previous Government that have impacted on pay and the availability of work. In particular, the graduated fees scheme has led to solicitors keeping work in-house, rather than instructing the criminal Bar.
As I have said, there has been a real reduction in fees of 13.5% over three years. A 4.5% reduction took place this financial year, which is bound to have a significant impact. Regardless of the merits of the reforms, they have resulted in a considerable upheaval in the funding of the criminal Bar. That should be taken into account in any future review and in any decision that the Minister needs to take. Further cuts to criminal legal aid, whether to the criminal Bar or to criminal solicitors’ fees, will lead to the social exclusion of the most vulnerable at a time when they are already likely to be suffering cuts in other publicly funded services, on which they rely heavily.
In conclusion, the criminal Bar plays an essential role in maintaining a fair justice system. Further cuts to legal aid will result in an unfair system, with access to justice being available only to those who are able to pay for it. That will inevitably undermine democracy and justice. Given the lack of sympathy that the electorate will have for the offender, it seems too easy to attack criminal legal aid. However, there is a real danger of taking that less politically damaging action and, in doing so, seriously undermining the very foundation of our society. I am very proud of being a member of the Bar and of the traditions of the profession, which I respectfully submit are being put at risk by the actions that I believe will be taken by the Government. I therefore urge the coalition to carefully consider those points and to resist dropping the axe on criminal legal aid and on such essential services.
Mr David Burrowes (Enfield, Southgate) (Con)
It is a pleasure to speak under your chairmanship, Mr Bone. I congratulate my hon. and learned Friend the Member for Torridge and West Devon (Mr Cox) on securing an important debate, in which I must declare an interest. I have been a practising solicitor, albeit infrequently, for more than 16 years and for 11 years I was involved with instructing the criminal Bar. I therefore certainly have an interest in the debate.
There is obviously the risk of being accused of special pleading for the profession, but there is no risk of winning any votes in this debate—we all know that there are few votes to be won in standing up for lawyers. I also want to declare an interest in the rule of law, which I am sure all hon. Members who have contributed will share. That subject is of interest to my constituents and to this country. Clearly, a principle of the rule of law is that it cannot exist without there being access to justice for every citizen. An independent legal profession, of which the criminal Bar is clearly a crucial component, is the foundation of that principle.
We, in this country, can be proud of our record—of our principles, of upholding the rule of law and of our legal aid record. In any legal aid debate the statistic is always mentioned that we spend more per capita—per head—than almost any other country. However, at the same time—and rightly—one must consider public services and outcomes. So what is the outcome of this expenditure on legal aid? A recent report entitled “Effective Criminal Defence in Europe” considered which jurisdiction was best at providing an effective criminal defence. It will not surprise hon. Members to learn that the jurisdiction that came out best, along with Finland, was this country. That was largely due to the source of legal aid.
Why do we have this legal aid system? It was established some 60 years ago not because we were cajoled by an international agreement or because we felt we should be subject to any European convention; it was established because we wanted to apply the principle of the rule of law. That was summed up well by the US Supreme Court Justice Hugo Black in 1965, when he said:
“There can be no equal justice where the kind of trial a man gets depends on the amount of money he has.”
An independent criminal Bar funded through the legal aid system helps—indeed, it is crucial—to uphold equal justice. What is that equal justice? It is equal justice for the innocent and the guilty, for the falsely accused who gain publicly sympathy, and for the evil criminals who command public contempt. Looking back over my 16 years in the profession, I can think of some clients for whom the public would not want a penny of public money spent, but legal aid provides it and the rule of law demands it.
It might be helpful to have some distance when making the case for the criminal defence service. The following words were written by a solicitor, Paul Booty of McCarthy Stewart Booty:
“As far as those outside the profession are concerned, we get little sympathy, as all we do is drain the public purse ‘getting off’ undeserving, unemployed, drug-taking individuals on technicalities. We twist the law to our own advantage and are thoroughly unscrupulous, with no sympathy for the victims of horrendous crime. It is not surprising, therefore, that we should endure pay cuts from the government year on year; and who cares anyway, because we all drive Bentleys.
The reality could not be further from the truth. We are called to the police station at any time of the day or night. Quite often we are faced with detainees who, if they are ‘regulars’, are extremely vulnerable individuals, often living on benefit with mental illness, depression and dependency. These people are human beings and deserve dignity and fair treatment.”
And so say all of us, both those with a direct professional interest and those outside in the country.
However, although we certainly want to ensure that the system upholds dignity and respect, we also recognise, particularly in these economic times, that it cannot be immune from cuts. When looking for cashable savings in the Ministry of Justice budget, it is obvious that the legal aid budget will have to shoulder a distinct burden when cuts are made. The hon. Member for Kingston upon Hull East (Karl Turner) was too generous about the previous Government’s record, particularly their legacy for the economy and for the criminal defence service, which has been cut to the bone in many areas and left with great concerns for the future. We can certainly look at how cuts can be made and at high-cost cases, and means-testing is at last coming back to play a part. There will also be proper case management, particularly in preliminary hearings, where we can be much smarter and more cost-effective.
I want to look briefly at the relationship between barristers and solicitors. It is all too easy to play off barristers and solicitors. Historically, they are complementary professions, which is one of the reasons that we have such a proud record. There are enormous strengths in both professions. In comparison to international litigation, the relationship between barristers and solicitors in the UK makes us pre-eminent as a profession. Similarly, in criminal law there is, in the main, a good relationship. The contrast between High Court advocates and the Bar has often been characterised too starkly. In the main, the improvement is helpful, but it needs to be dealt with carefully, with proper training and quality, particularly for High Court advocates.
Obviously, we need to avoid the abuse of the referral fee arrangements that sadly seems to be emerging in various areas. However, we should not pit one against the other. That is not the real threat to the independence of the legal profession and the Bar. There are opportunities in the commissioning arrangements for smaller solicitors’ firms to be subcontracted by barristers and brought into the family of commissioning, where previously they could be excluded by large contracts. The big threat is in the commissioning field, where we are entering a brave new world, and in the contracting process presently applied by the LSC. I believe that the way in which the LSC has operated in the past provides the biggest threat.
There are warnings that must be taken into account and that are already clear in the field of practice, and there are warnings in procurement processes. What has happened to family legal aid is a legacy of how the previous Government oversaw the decimation of highly skilled and committed solicitors, often with great experience of dealing with key issues and vulnerable clients carefully. Existing experience has, in many ways, been excluded from the process. The rug has been pulled from under the feet of many providers. We have been left with legal aid deserts, as we prophesised when in opposition. Poole in Dorset, with a population of 138,299, has been left with one family law solicitor to provide publicly funded work.
Providing solicitors of choice for vulnerable defendants is a matter of concern. In mental health law, those who currently provide for the most vulnerable often have expertise in dealing with vulnerable clients, but now solicitors are effectively being imposed on those clients by the LSC. In the area of administration, there was an example in July of the duty solicitor rotas being reissued twice for a six-month period. Firms were missed off the rotas, areas were put in the wrong position and a simple process led to chaos. Is that the prospect for the commissioning process for the Bar and others?
Anna Soubry (Broxtowe) (Con)
Is my hon. Friend aware that across England and Wales the number of solicitors’ firms is diminishing fast? In Stapleford, a town in my constituency, there is now no solicitor available to provide advice for people with real need in family circumstances. They must travel many miles into Nottingham for that advice, and they are often vulnerable, quite literally, faced with a violent partner.
Mr Burrowes
My hon. Friend makes her point well. In that context, the Minister is facing difficult decisions on funding restraints. That context is so important that I am sure he will take account of it. There is an impression that the Ministry is in chaos and that it is having to pick up the bill, but it is not the same the other way round; there is zero tolerance of any minor error when the LSC submits a bill and funding is not provided. As the Public Accounts Committee rightly concluded, the LSC lacks a grip of the basics and is ripe for reform, and I look forward to that reform being pursued by the Government.
Finally, we have to talk about money—something we do not like doing—because there is a concern about cash flow and payment. Solicitors often have to wait some time for payment, and now the goalposts have been moved by the LSC. Previously, it would step in to help if 5% of a bill was awaiting payment, but now it has moved that to 10%. That is a warning to the Bar about what happens when we get into bed with that area of commissioning.
In conclusion, it is important that we stand up for the important principles of the rule of law that underpin legal aid. We of course must cut waste and inefficiencies, which I am sure the Minister has been tasked with, look at high-cost cases and properly reform the LSC to ensure that it is fit for purpose, whatever form it takes, to deal with the new environment. Above all, we must ensure that we do not undermine the strengths of the criminal justice system and an independent legal profession accessible to all.
Rehman Chishti (Gillingham and Rainham) (Con)
It is always a pleasure to follow my hon. Friend the Member for Enfield, Southgate (Mr Burrowes); as a young barrister it was always a pleasure to receive instructions from him in chambers. I must declare that for the past seven years I was a member of the junior Bar, practising first in London and then in-house for a firm in Kent before coming to this place.
The key point for me, having been through the system—practising, not going through the criminal justice system in another way—is that we have in our society a great belief in our liberty and freedom. The criminal justice system and the legal profession might not be perfect, but when one looks around the world one sees that it is one of the finest. It is the front-line professionals—those at the Bar, in-house barristers and High Court advocates—who ensure that people’s liberty is preserved. If there is any chance that people’s liberty may be put in danger, we must consider seriously, in terms of the whole concept of our society, how to preserve that liberty and freedom.
On the point about criminal legal aid and the criminal Bar, the people on the front line are those at the junior Bar. For a case in the magistrates court, it will be a member of the criminal Bar who will have to travel to the court, take instructions, give advice and, after that, pass the case on to the more experienced member, if so be, of Queen’s counsel.
It was a real pleasure to listen to my hon. and learned Friend the Member for Torridge and West Devon (Mr Cox), and I fully agreed with his eloquent speech. If there are drastic cuts in legal aid, the junior members of the Bar will be most affected. Over the past 20 years, the Bar has worked hard to ensure that it is diverse, that it is not simply people with independent means who can come to the Bar, and that people from all different backgrounds are able to come to the Bar on merit. If there are drastic cuts, there will be an element of going back 20 years, and that cannot in any way, shape or form be right.
People often equate barristers with high earnings, but there is a key difference for members of the Bar: income tax is linked to earnings. They have to pay tax on their earnings, not their receipts. Legal aid is already at difficult levels; any further reduction would mean that if there was a delay in money coming in, those who could carry on in fair weather, and who have been there for a long time, would no longer be able to do so. The taxation system must take into account the fact that members of the Bar pay tax on earnings, not receipts.
It is accepted that the monitoring and regulation work of the Legal Services Commission over the past number of years has been absolutely awful. We hear stories—and facts, such as those that are set out in the report that I have here—of lawyers being overpaid by £25 million. When the person in the street hears that, they say, “Lawyers are paid a lot.” We must ensure proper regulation and monitoring of the current system, to see whether it is having an adverse effect on criminal justice, and to see how the current means-testing approach, brought in by the previous Government, is being applied.
I spoke to a practitioner on the front line—a solicitor in Kent—who said that there is a four-week delay in legal aid. Then, when the case goes to the Crown court, there could be a situation at a preliminary hearing, or a plea and case management hearing, where someone turns up without a representative, and the case has to be adjourned. Adjourning the case takes us back to a position where taxpayers’ money is wasted. We are far from having an efficient, well-run and proper system, but that is what must be put into practice.
We have at present a means-tested system that leads to scenarios in which people act either pro bono or under fixed-fee rates, and they may not be of the quality or have the expertise that the independent Bar can provide. Defendants may decide that they are better off just pleading guilty because, at the end of the day, they do not have the means. That goes against our fundamental principles. If someone is innocent, they should be able to fight their case all the way. We should go back to a position that this country can be proud of, in which innocent people have the means to fight for their freedom.
I know that other hon. Members wish to come into the debate. I was taught at the Bar that brevity is a virtue, not a vice, and I am very much going to apply that advice. My hon. and learned Friend the Member for Torridge and West Devon discussed independent commissioning by the Bar, direct access, and regulatory caveats in respect of quality assurance. At this time, when there are difficulties, we must consider carefully how we can move forward and preserve the Bar’s independence. That is one of the best ways, at this difficult time, to move forward and preserve the Bar’s identity.
Mr Peter Bone (in the Chair)
Before calling the last Back-Bench speaker, I would like to remind Members, especially the new Members here, that it is normal practice for the Chairman to be notified in advance that a Member wants to speak in a one-and-a-half-hour debate.
Tom Brake (Carshalton and Wallington) (LD)
It is a pleasure to serve under your chairmanship, Mr Bone. I congratulate the hon. and learned Member for Torridge and West Devon (Mr Cox) on securing this debate. I shall not attempt to claim anything like the level of detailed expertise that he and other hon. Members have on this subject, nor shall I be able to defend the livelihood of the criminal Bar quite as assiduously as they have this morning. The hon. Member for Enfield, Southgate (Mr Burrowes) referred to special pleading. I am not sure whether any of what has been said this morning falls into that category. I feel that perhaps my role here is to make it clear to anyone flicking through the TV channels who stumbles across this debate that they are not actually watching a courtroom drama.
I am pleased that the coalition programme includes a fundamental review of the legal aid system. That was inevitable and unavoidable, in today’s economic climate. The hon. Member for Enfield, Southgate referred to the fact that we have the most generous system of legal aid in the common-law world. Of course, we should be proud of that, if all the money is being spent well.
I acknowledge that a comparison of the costs of our legal aid system and those incurred in inquisitorial systems is not necessarily straightforward because of the differences between the two. The basic principle, which I am sure that all of us support, is that, whatever the outcome of the comprehensive spending review as it relates to the legal aid system, we should not be in a position where people are not represented in criminal cases.
There are clearly some failings in the present system. All the previous speakers expressed concerns about the level of fees. As Members will know, if 50% of the legal aid budget is being spent on 1% of the cases, it may not be that the fees are excessively high but that perhaps the cases are taking longer than is necessary—not deliberately, but perhaps there is a slight incentive to ensure that they go on longer than is totally necessary. That needs to be looked at, particularly if it means that less funding is available for less high-profile cases in which we would also want people to be properly represented.
I assume that what the Prime Minister said about senior people working in the public sector earning a multiple of no more than 20 times what the lowest-paid workers in their field receive may impose some interesting restrictions on the level of fees that might be available to barristers doing work that is funded by legal aid. I wonder whether the Minister would like to comment on that when he responds to the debate.
On another aspect that I am sure other Members are concerned about—the hon. and learned Member for Torridge and West Devon referred to the availability of legal aid in MPs’ expenses cases—the name van Hoogstraten will be familiar to all Members here today. The safest thing I can say is that he is a colourful gentleman. Estimates of his fortune vary widely—hundreds of millions would probably be a safe figure to quote—yet apparently he received £1.12 million in legal aid. I do not know whether there have been changes since he received that funding that would preclude that from happening now. Very helpfully, the hon. and learned Gentleman shakes his head, which indicates that perhaps nothing has changed, and that such funding would still be available to someone who claims that they have no cash assets—Mr van Hoogstraten’s assets had been frozen. We clearly have to address that.
Tom Brake
What sort of action can we take? If a small number of complex cases ties down half the available funding for legal aid, can anything be done to shorten the process without impacting on the quality of legal advice and the handling of the case? The difficult balance between setting the fees at a publicly acceptable level, and setting them at one that ensures that there are people able and willing to advocate, needs to be found. When the Minister responds, I hope that he will clarify his view on whether the Legal Services Commission has a better idea of the costs and profits associated with legal aid cases, to which other hon. Members referred. The Minister will know that the Legal Services Commission was criticised by the Public Accounts Committee.
There are no panaceas. Some have advocated no win, no fee arrangements as a solution, but, clearly, it is unlikely that anyone would want to pursue, on that basis, cases involving the police.
Mr Buckland
I am grateful for the hon. Gentleman’s analysis of the problem of funding criminal legal aid cases, but does he accept that one problem is whether it is right to make people of means who are acquitted pay for their legal representation when they emerge from the court free and not guilty? We have to grapple with that question. Ultimately, although van Hoogstraten was convicted by a jury, the Court of Appeal ordered a retrial and, for legal reasons, it was adjudged that there could be no further trial, so he is not, perhaps, the best example. We should focus on people of means who have been convicted. Finally, and I do not want to take up too much time, one problem is—
Mr Peter Bone (in the Chair)
It is difficult when we have a room of lawyers, but interventions are supposed to be short.
Tom Brake
May I apologise to the hon. Gentleman for not giving way earlier? I was not aware that he was rising until I caught sight of him in the corner of my eye. He makes a valid point, and I was going to come on to financial contributions and to what extent people should be willing to contribute to support their case. I am interested to hear what the Minister has to say. The hon. Gentleman is right in relation to Mr van Hoogstraten: he was eventually acquitted in the criminal case. As I understand it, however, he was found guilty in a civil case, although he has stated that he will not be handing over a single penny in relation to the outcome of that case. The hon. Gentleman has raised important points for the Minister to respond to.
On the CPS, if cases are adjourned unnecessarily, costs are incurred, and there may be scope for improving on that. Clearly, this would not assist the legal profession, but it would be interesting to hear from the Minister what success he is having in stopping cases going to court through the use of virtual courts, and the extent to which they can contribute to the process. As someone who is not legally qualified, in any shape or form, I hope that my few comments still inform today’s debate, and that we hear some convincing responses from the Minister shortly.
Mr David Hanson (Delyn) (Lab)
Thank you for calling me, Mr Bone; I share the pleasure of others in serving under your chairmanship for the first time. I congratulate the hon. and learned Member for Torridge and West Devon (Mr Cox) on securing the debate. I also congratulate my hon. Friend the Member for Kingston upon Hull East (Karl Turner) and the hon. Members for Enfield, Southgate (Mr Burrowes), for Gillingham and Rainham (Rehman Chishti) and for Carshalton and Wallington (Tom Brake) on contributing to it. It is also worth mentioning the hon. Members for Enfield North (Nick de Bois), for Broxtowe (Anna Soubry) and for South Swindon (Mr Buckland) who have sat through the debate and shown an interest in this matter, and the contribution of the Whip, the hon. Member for Kenilworth and Southam (Jeremy Wright). It shows that there is considerable interest in the matter before us.
The hon. and learned Member for Torridge and West Devon began by saying that the art of advocacy was key to his profession. I declare a non-interest in that I am not a barrister and never have been. Today, I am undertaking the art of advocacy on behalf of my noble Friend Lord Bach, who was the Minister in the Department responsible for these matters, and obviously cannot speak here today and defend the previous Government’s record. Prior to the election I had responsibility for prisons, probation and, latterly, the police, so I contributed to the work of the Bar in that role. I hope we can discuss some of the key issues that the hon. and learned Gentleman raised and hear some of the solutions that the new Government wish to bring forward.
I begin by, in a sense, disagreeing with the hon. and learned Gentleman in what I hope is a positive, constructive and amiable way. The previous Government did recognise that the Bar and the criminal Bar have an important role in our democratic society. I wish to place on the record the fact that the right to a fair trial and representation is essential in a democratic society, because it is just as much a part of our democratic process as this House and this debate today. As my hon. Friend the Member for Kingston upon Hull East also recognises, there are challenges in that role that demand skills, professionalism and the support of Government, not only to achieve independence, but to recognise and value the profession as a whole. I hope that there will be common ground on that, whatever our political differences on other issues.
Mr Cox
I hope hon. Members understand that the, perhaps, acerbity with which I referred to the previous Government’s record was coloured by remarks from successive Home Secretaries about bent briefs and lawyers who tried too hard. In the light of the extremely enlightened comments that the right hon. Gentleman has just made, I am sure he will agree that those were unfortunate remarks, which gave the profession the belief that its values were not shared by the then Government.
Mr Hanson
I said what I said, and I hope the hon. and learned Gentleman recognises that I know the Bar has a valuable role and that it serves a full position in our democratic society.
The previous Government had to look at the difficult decisions that we faced in terms of the potential deficit, which we are now challenged to look at across the board, and at how we find efficiencies in the way in which we support the legal aid system financially. My noble Friend Lord Bach, as Minister before the election, tackled that issue head-on. The hon. and learned Gentleman referred to the notice and order issued on 6 April, before the dissolution of Parliament, which placed on record some decisions that we had to take.
In 2008-09, £2.1 billion was spent on legal aid between the criminal and civil budgets; that is an important amount of resource. It is important work and it is vital that we recognise that legal aid is essential, as is the advocacy role, in developing a civilised society. People depend on legal aid for access to representation in both criminal and civil cases, particularly those who have difficult legal problems, particularly in times of economic hardship. Legal aid practitioners provide a fantastic service and should be paid accordingly. As the previous Government recognised, there are issues with how we rebalance the funding, identify the best efficiencies and run the system in the future, and the Minister will have to face those challenges.
We have seen a huge increase in the legal aid budget from £545 million in 1982-83 to £2.1 billion in 2008-09, which is an average increase of 5.3% a year. The previous Government believed that that was unsustainable, as I believe the current Government will.
Mr Burrowes
The figures for the legal aid budget show that it has increased, but is it not important to break them down to show where there have been increases? For example, the criminal legal aid budget in the lower courts is under control, and indeed savings are being made, which is unique in recent years.
Mr Hanson
I accept what the hon. Gentleman said. I was coming to the fact that at the moment the criminal legal aid budget is about £1.1 billion of the £2 billion, and that the civil and family legal aid budget is around £900 million. What has happened over the years—this is why Lord Bach made his decision when he was the Minister—is that the criminal law side of the legal aid budget was beginning to eat into the resources available for the civil and family legal aid budget.
Mr Hanson
There are cases to be made for all sorts of things. The fact that crime fell by 36% might have something to do with some of the issues that we brought forward over the past 13 years, but such matters are for a wider debate in due course.
We had to consider how to make savings on that budget, and the hon. and learned Gentleman mentioned his concern that we made cuts of around 4.5% a year for the following three years, including this year, which totalled about 13.5%, in advocates’ graduated fees, coupled with extending those fees to cases due to last up to 60 days. We had a choice, and Lord Bach could have taken that hit in one go—proposals were before him to make a drastic cut of 17.9% immediately—but we chose to phase that in over three years as part of the savings that we knew we had to make in the Ministry to ensure that we met the coming CSR obligations. The Minister will surely face similar obligations, perhaps with the increasing difficulty of a further £2 billion of savings in his Ministry’s budget if we believe what the Lord Chancellor and other hon. Members have said. My hon. Friend the Member for Kingston upon Hull East said that that would be very difficult for the Ministry and the people who depend on legal aid, particularly if further cuts to the service are driven forward over and above the challenges that we had to face and which the hon. and learned Gentleman mentioned.
The Labour Government highlighted the importance of driving down costs and of ensuring that we consider areas such as the tendering process and developing alternatives. We considered a range of reforms and, as the hon. Member for Enfield, Southgate said, more must be considered, such as high-cost cases and the status of the LSC. We had planned to introduce proposals, if we were re-elected, on agency status for the LSC. Efficiencies could be made in the system as a whole, and we need to consider them generally to ensure that we receive extra value from the system.
I want to give the Minister 15 minutes to respond, but I shall touch on three areas of concern to Labour Members. As my hon. Friend the Member for Kingston upon Hull East said, we face proposed cuts of £2 billion in the Ministry of Justice over the next three years if we believe what is said about the CSR. Will the Minister say whether that will fall in part on legal aid in the next year and beyond? If not, how does he expect the Prison Service, the probation service, sentencing policy and other aspects of the Ministry’s funding to be able to meet that level of cuts, which I believe are unnecessary given the choices that the new Government could have made on those issues and public spending?
We were not afraid of saving resources, which is why we introduced the measures that the hon. and learned Gentleman is concerned about, but a line must be drawn, and I would welcome the Minister’s support for protection of the public and defence of people’s right to enjoy the services of the profession. What consultation will he have with the Bar and service users on those issues and the points that have been mentioned? How will he ensure that the social and welfare aspects of the legal aid budget—this was raised by my hon. Friend the Member for Kingston upon Hull East—for those who depend most on legal aid services are considered? Such people depend on those for housing and employment issues, and in civil cases dealing with social welfare concerns. An article in The Times in August tantalisingly raised the possibility of that being a major target for the Government. That choice would be wrong, because the Government would again ensure that the burden of public spending cuts fell on those who are least able to bear them: the vulnerable, and those who need the service most and do not have recourse to other forms of finance for their legal requirements.
There are key issues for the Government to address, and I welcome this debate. The Labour Government took a responsible approach to these issues, and tried to save resources efficiently and effectively. Opposition Front-Bench spokesmen will watch carefully to see how the Government respond to the challenges that they, not the economy, have set for themselves ideologically to cut public spending still further. We shall watch to see whether that impacts on the poorest and damages the safety of our society through other choices being made on prisons, probation and sentencing.
The Parliamentary Under-Secretary of State for Justice (Mr Jonathan Djanogly)
I welcome you to the Chair, Mr Bone. I believe that this is your first debate as Chairman, and I hope that it is the first of many. I am a non-practising solicitor, but I have never engaged in legal aid work. I congratulate my hon. and learned Friend the Member for Torridge and West Devon (Mr Cox) on securing this debate, which is timely. Many issues have been raised, and I will do my best in the time available to address them.
My hon. and learned Friend is an experienced criminal barrister and, as I would expect of a leading silk, argued his case strongly, as did my hon. Friends the Members for Carshalton and Wallington (Tom Brake), for Gillingham and Rainham (Rehman Chishti) and for Enfield, Southgate (Mr Burrowes), and the hon. Member for Kingston upon Hull East (Karl Turner).
I should say at the outset that the Government agree that we need good-quality advocates to prosecute and defend in criminal cases, and to ensure that the criminal justice system works effectively and fairly. My hon. and learned Friend the Member for Torridge and West Devon and others have argued passionately for the continued future need for an independent Bar, and I support that. However, it is important to recognise that the legal landscape in this country is changing and we must all acknowledge that; we must adapt to it, and to the financial realities of the current economic climate.
I will deal later with the various points made, but before that it may help if I speak about legal aid more widely in the current context. As hon. Members know, the Government have pledged to reduce the budget deficit to deal with the acute financial crisis and to encourage economic recovery. That is something that the whole Government must do. However, we are not driven only by economic considerations; the financial situation is a rare and urgent opportunity to develop imaginative and creative policies. I accept that our policy should not be determined only by the need to deal with the deficit.
In June, we announced that we were considering our policy on legal aid. That reflects the aim of creating a more efficient legal aid system as set out in the coalition Government’s document of 20 May. My hon. Friends the Members for Enfield, Southgate, and for Carshalton and Wallington voiced their concerns about the operation of the Legal Services Commission. I confirm that I have established a good working relationship with the LSC and that we are working through some of the issues. I should also say that the Government have decided to replace the LSC with an executive agency of the Ministry of Justice, in the belief that that will strengthen accountability and control of the legal aid fund.
As the right hon. Member for Delyn (Mr Hanson) said, there have been several reviews of legal aid in recent years under the previous Government. For example, Lord Carter of Coles’s report of July 2006 proposed a market-based approach to reform. The previous Administration implemented some of Lord Carter’s recommendations, but they did not succeed in implementing price competition for criminal legal aid work.
I can confirm to the right hon. Member for Delyn that we are seeking to develop an approach to legal aid spending that takes into account the necessary financial constraints, the interests of justice and the wider public interest. We are seeking to develop an approach that is compatible with necessary access to justice for those who need it most, the protection of the most vulnerable in our society, the efficient performance of the justice system and our legal obligations.
The cost of the legal aid system as a whole has risen over time. The scheme now costs over £2 billion per annum and, as has been recognised by my hon. Friend the Member for Enfield, Southgate, it is one of the most generous schemes in the world. We spend significantly more on legal aid than most other comparable countries. For example, the per capita spend on legal aid is about £9 per head in Australia and Canada, and £11 in New Zealand, but we spend £38 for every man, woman and child in England and Wales. In the current financial situation, that is unsustainable.
Tom Brake
My point is not directly related to the debate, but I would like to raise a point with the Minister about legal aid, particularly the availability of legal aid to British citizens in foreign countries and the extent to which the Government are able to publicise its availability.
Mr Peter Bone (in the Chair)
Order. It does not help when the hon. Gentleman starts by saying that his point is not relevant to the debate.
Mr Djanogly
As I have said, the cost of the legal aid system has risen over time. The problems were well recognised by the previous Administration, but their piecemeal attempts at reform often served only to add to the upward pressures on cost, and they did little to address the underlying causes of cost or to look at the situation in the round; they found it too complicated to deal with. We want to take a different approach and look at the whole legal aid system and the wider justice system. With respect to my hon. and learned Friend the Member for Torridge and West Devon, legal aid is not only about the fees paid to lawyers; that is the wrong starting point. The starting point should be more fundamental questions, such as: what is legal aid for? What is the role of the state in legal aid? Who needs access to legal aid? How should we fund legal aid? What are the alternatives, in civil cases, for resolving disputes in a way that avoids expensive court processes and the need for lawyers? How should we set the price we pay when legal aid is required? Importantly, what can be done to encourage the resolution of legal problems, both criminal and civil, in a timely and proportionate way?
My hon. and learned Friend asked about timing. We have been assessing such questions over the summer as part of our consideration of legal aid, and I can confirm to him, and to the right hon. Member for Delyn, that by autumn we will be in a position to seek views on our emerging proposals in a full consultation. I also confirm that the resulting Green Paper will outline our proposals for the way forward for criminal legal aid.
I will now look specifically at issues of criminal advocacy. The world is changing in a number of ways. I have already mentioned the need to reduce public spending, and my hon. and learned Friend the Member for Torridge and West Devon has rightly highlighted the fact that in the dying days of the last Parliament, the previous Administration decided to reduce advocate fees by 13.5% over three years, with the first stage of that cut coming into effect last April, and he provided details of those statements. Although we have no plans to reverse that decision, I confirm to my hon. and learned Friend that we want to look at the efficiency of the whole legal aid system, which I agree will go beyond the criminal Bar. At this stage, however, I am not prepared to rule out any specific types of reform.
Another change in the landscape is the increasing number of higher court advocates competing for work with the criminal Bar. I understand that there are now at least 2,500 solicitor-advocates in practice in the higher courts. That means that the Bar no longer has exclusive access to Crown court work. I know that the Bar welcomes healthy competition and believes that it is well placed to offer specialist expertise in advocacy, particularly in more complex cases. Equally, the Bar has grown over time. Thirty years ago, there were just over 4,500 barristers in self-employed practice. Twenty years ago there were more than 6,500, and today the number of barristers in private practice is greater than 12,000. Taken together, the changes mean that it is unlikely that there will be enough publicly funded criminal case work to support the number of people who wish to earn a living from publicly funded practice at the criminal Bar. That is a simple economic fact of life.
My hon. Friend the Member for Gillingham and Rainham spoke about the need to recognise and protect the diversity of the Bar. I agree with his sentiments and it is an important issue. However, the numbers of black, minority ethnic and women barristers are affected by issues other than simply fees. As I have already argued, legal aid exists to provide help for those who need it. In criminal cases, that means the defendant who cannot afford to pay for representation in cases that pass the “interests of justice” test, which in practice tends to exclude the more minor criminal cases. Let me be clear: it is not the purpose of legal aid to provide a living for any particular number of lawyers. Instead, taxpayers’ money should be targeted at those who cannot afford to pay for their own defence, when that is required in the interests of justice.
My hon. and learned Friend the Member for Torridge and West Devon raised the issue of a single fee for Crown court litigation and advocacy. Given the likelihood that a single fee for Crown court cases covering litigation and advocacy would encourage greater efficiency between litigator and advocate, one should expect that point to be considered carefully, among other options for reform. That point was also raised by my hon. Friend the Member for Carshalton and Wallington.
As a point of principle, the so-called VHCCs—very high-cost cases—consume a disproportionate amount of the legal aid budget. Half the Crown court legal aid budget is now swallowed up by fewer than 1% of cases. I am keen to do all that we can to reduce the number and costs of long, complex cases that are bad for the justice system. We will look at that issue in the Green Paper but to clarify, contributions are returned to acquitted defendants, although means-tested contributions now mean that those who can afford to do so pay towards the cost of their representation.
Earnings at the criminal Bar vary enormously. We know that some barristers at the most junior end are far from fully occupied, and as a result their earnings are low. However, at the more senior end of the Bar, earnings can be high. My hon. Friend the Member for Carshalton and Wallington asked about fee levels. The previous Administration published information on that, which showed that for 2008-09, the highest-paid barristers took £928,000 from the criminal legal aid budget. One hundred and twenty barristers were paid more than £250,000 in criminal legal aid, and a total of 416 were paid more than £150,000. I accept that those figures are subject to a number of caveats. In particular, those fees include VAT and do not take into account chamber expenses.
Mr Djanogly
I do accept that, but I wanted to give some idea of the amount of public money that is being paid out.
Looking at the wider regulatory picture, we are currently commencing the Legal Services Act 2007, which will encourage greater competition and innovation in the provision of legal services and a better focus on the consumer. That programme of work has already made important changes to the way that legal services are regulated in England and Wales, and it will also allow for alternative business structures. It will allow lawyers and non-lawyers to work together as one enterprise to provide legal and non-legal services.
To help pave the way for those new business structures, legal disciplinary practices have already been introduced. That has made it possible for different types of lawyers to work collaboratively to provide legal services. For decades, members of the criminal Bar have complained that solicitors have the whip hand. It is time for the Bar to embrace the new opportunities and equality of position that the Legal Services Act will provide. I hope that that opportunity will be grabbed.
As recognised by my hon. and learned Friend the Member for Torridge and West Devon, I was encouraged to hear Nicholas Green, QC, the chairman of the Bar, recently indicate that the Bar is preparing to change and adapt by setting up procurement companies that will enable groups of barristers to bid for criminal defence work. I have met Mr Green and other senior members of the Bar, and I will continue to work closely with them on the issue. Mr Green has been travelling the length and breadth of England and Wales to explain to members of the Bar, face to face, why it is time for the Bar to prepare for change. That is a sensible course to advocate, and I urge all members of the Bar to look carefully at the material that the Bar Council is producing on the subject. I do not think that the majority of members of the Bar, as part of a referral profession, can afford to be aloof as we move forward in what is likely to be an increasingly competitive environment.
I do not want to pre-empt the consultation paper that we plan to publish this autumn, but we must consider whether there is a case for the greater use of competition in providing legal aid. I think that my hon. and learned Friend will accept that, as long as it is done correctly and fairly.
In conclusion, I say to my hon. and learned Friend that however our thinking develops, I want a level playing field so that barristers, other advocates and litigators can compete on an equal basis. The Bar Council is right to advocate change, so that the Bar can not only survive but prosper in the longer term in a changed legal services market.