(9 years, 11 months ago)
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Lord Morris of Aberavon
To ask Her Majesty’s Government what assessment they have made of the long-term impact of current levels of funding of the criminal Bar.
Baroness Garden of Frognal (LD)
My Lords, as this debate is very tight, it will be much appreciated if noble Lords keep to the time that they have been allocated.
Lord Morris of Aberavon (Lab)
My Lords, I am delighted to initiate this short debate. I have no present interest to declare save for those on the register. As Attorney-General, I attended the monthly meetings of the Bar Council and, as head of the Bar, I presided over the annual meetings. On one occasion, I even had to exercise my casting vote, which pleased exactly 50% of those attending, but probably not the other 50%.
It was the Lord Chancellor who told the Commons Justice Committee:
“It is very important that the independent criminal Bar has a good future”.
I have not sought this debate to argue for more money for the profession that I had the privilege to practise in over a working lifetime; that is for others to argue. My hope is that, in this short debate, we can get confirmation from the Minister, who understands the profession well, that the Lord Chancellor meant what he said, and that he will spell out his hopes that, in the face of today’s difficulties, on his watch we will not see the decimation of a part of a profession that helps to underpin our freedoms.
It was Mr Nicholas Lavender QC, the chairman of the Bar, who said last year that the Bar was astonished that, on the Government’s figures and allowing for inflation, there had been a 37% cut in the funding of defence advocates’ fees in the Crown Court in six years. He maintained that he was,
“not aware of any other area of public expenditure where individuals have been asked to, and have, put up with cuts on this scale”.
The Bar took unprecedented steps to show how strongly it felt. It was encouraging that the Government decided that there would be no cuts that year in the advocates’ graduated fee scheme. Can we be assured that none will be proposed in immediate future years? The years have resulted in a massive reduction in expenditure on Crown Court advocacy. Fortunately, wise brokering broke the impasse highlighted in the Operation Cotton case. Sir Brian Leveson, on giving judgment in that case, said:
“We have no doubt that it is critical that there remains a thriving cadre of advocates capable of undertaking all types of publicly funded work developing their skills from the straightforward work until they are able to undertake the most complex”.
Sir Bill Jeffrey, who is not a lawyer, was commissioned by the Lord Chancellor to report on the market for criminal advocacy services. He reported that,
“the market could scarcely be argued to be operating competitively or in such a way as to optimise quality”.
When Sir Bill visited Crown Court centres and spoke to Crown Court judges who carry out the bulk of judicial criminal work at that level, he found that the “main area of concern” was that of,
“relatively inexperienced solicitor advocates being fielded by their firms (for what were presumed to be commercial reasons) in cases beyond their capacity”.
Sir Bill described the judges’ views as,
“remarkably consistent and strongly expressed”,
and said that in his view it would be a “mistake to discount them”.
I think I have said enough about the problems. It is no surprise that the relations between the defence criminal Bar and the ministry have been turbulent. It was my old friend, Kenneth Clarke MP, who, as Lord Chancellor, was one of the first to accept the Chancellor of the Exchequer’s proposals at the beginning of this Parliament. I do not know what brownie points he got for being first in the field, but, given the breadth of his responsibilities, it is no surprise that the profession is reaping the results of his alacrity.
Only a few weeks ago, your Lordships voted overwhelmingly against the limitation of judges’ discretion in judicial review cases. I believed, as did the House, that in a country that does not have a Bill of Rights judicial review was one of the bastions of the rule of law. An independent Bar, ready and willing to take up the cudgels on behalf of citizens, is vital to ensure that there is no infringement of the rights of the individual. Likewise at the criminal Bar, however odious the case, all parties who find themselves before the courts should have proper representation.
My experience, like many others, is that from time to time your non-lawyer friends will ask you, “How could you represent such an obnoxious individual?”. History is littered with such examples. My old friend the late Lord Hooson was defence counsel in the moors case. I am sure that he had to explain the role of counsel many, many times. A more recent example might be the Shipman case. Over the years those of us at the criminal Bar have had similar if less startling experiences. In my own experience it was of the upmost importance in the Broadwater Farm case that the prosecution was properly probed and challenged at every stage, as it was. One of the important pistons to the effective working of the engine of representation to ensure fairness is the sometimes questioned cab-rank rule.
Against the background of the horrific atrocities in France in recent days, the need for representation, as in our unhappy years of terrorist activity, will be more important than ever. I note and welcome the comments made by the Lord Chancellor in the reply that he gave in the House of Commons on 6 January to Jeffrey’s criticism and the letter to the chairman of the Bar Council on 22 December. The cab-rank principle has been described by many. I like very much the words of the noble and learned Lord, Lord Hoffmann:
“It is a valuable professional ethic of the English Bar that a barrister may not refuse to act for the client on the ground that he disapproves of him or his case. Every barrister not otherwise engaged is available for hire by any client willing and able to pay an appropriate fee. This rule protects barristers against being criticised for giving their services to a client with a bad reputation and enables unpopular causes to obtain representation in court”.
Against this background I wonder if it was the best use of the funds of the Legal Services Board to commission two professors to work out the impact of the rule. Sir Sydney Kentridge systematically destroyed the methodology and conclusions of this very academic review. The rule with all its practical implications is ingrained in young barristers from the day they begin to practise. The most persuasive evidence comes in a footnote to Sir Sydney’s opinion:
“I can say from my own experience that in political trials in South Africa in the apartheid years it was essential and invaluable”.
I would hope for some endorsement in the ringing tones of the Lord Chancellor’s comments which I have already referred to.
Lord Brown of Eaton-under-Heywood (CB)
My Lords, I begin by congratulating the noble and learned Lord, Lord Morris of Aberavon, on securing this debate and opening it so skilfully. He was himself, of course, in his time a great ornament of the criminal Bar. He has recounted something of the history of the savage cuts that have already been made over the years in criminal legal aid funding and there is of course, following the election in May, to be another review of the fate of the criminal Bar. I suggest it would be catastrophic if, following this review and in the light of the Sir Bill Jeffrey report and other reports, further cuts were to be made. There is time today to make just four brief points.
First, of all the specialist Bars, the criminal Bar is the most important. Of course it does not earn for its practitioners, or even for the Exchequer, the huge sums earned, for example, by the commercial Bar, the companies Bar, the patent Bar or the revenue Bar; however, the work undertaken by the criminal Bar is the most valuable of all. The outcomes of commercial disputes largely result in book entries—the adjustment of balance sheets—but the administration of criminal justice goes to the very heart of the rule of law, and directly and immediately impacts on the day-to-day lives and liberty of all. I quote Geoffrey Cox QC MP in a debate more than four years ago:
“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”.—[Official Report, Commons, 15/9/10; col. 245WH.]
It is all-important to assist the judiciary in its task of achieving justice. That is why the judiciary strongly traditionally supports a strong criminal Bar.
Secondly, the criminal Bar has for many years been the poor relation of the various specialist Bars. The effect of recent funding cuts is “ruinous”—I quote what a member of my old chambers said to me yesterday. Others have spoken of a crisis of confidence in the economic viability and the long-term future of the criminal Bar. Predictably, all this has had a devastating effect on the recruitment of real talent to that Bar. The number of pupillages has fallen, and all this is on top of the loss of student grants and the increasing levels of student debt. How today could one conscientiously encourage some able and ambitious young graduate to the criminal Bar? Rather, one has to advise them to steer clear of it and direct them instead to commercial or public law chambers or one of the other Bars.
Thirdly, even if financial considerations do not deflect some of the wealthier among the Bar’s potential recruits—those with money, trust-backed grants or family funds—assuredly they put off those who have no financial support and are burdened with heavy debt. The consequences for the Bar’s commendable long-standing efforts to promote diversity and social mobility need no emphasis. They are all too obvious.
Finally, the young criminal bar is the seed-corn for the next generation of experienced criminal Silks and justices. It is small wonder that in paragraph 9.11 of his report, Sir Bill Jeffrey stated that,
“concerns about the future ‘talent pipeline’ for criminal QCs and judges are not, in my view, fanciful”.
In the following paragraph, under the heading “How much does this matter?”, he expressed his conclusion. I shall not read that paragraph in full, although I hope that others may do so later in the debate. Put shortly it was, unsurprisingly, Sir Bill’s conclusion that it obviously matters a great deal. It is imperative that any future Government recognise that they should do nothing to further imperil the future of the criminal Bar, which is truly one of the great assets of our proud legal heritage.
Lord Thomas of Gresford (LD)
My Lords, I, too, thank the noble and learned Lord, Lord Morris of Aberavon, for introducing this debate. My interests are declared. I started off as a salaried partner in a small country solicitors’ office in north Wales in 1961 on a salary of £1,000 a year. Despite our limitations, we could provide for our clients the highest quality of representation in criminal cases via the availability of legal aid and the existence of a strong and expert independent Bar. I could and did instruct on behalf of legally aided clients Lord Elwyn-Jones, Lord Hooson, Sir Ronald Waterhouse, Sir Robin David and other distinguished barristers of the Wales and Chester circuit. Incidentally, I was present with Lord Hooson on the last day of the Moors murder trial. I took him for a cup of tea afterwards, which he almost certainly needed after sentencing.
In every serious criminal case, there was a team on both the prosecution and the defence side led by outstanding silks who were capable of guiding the preparation of cases, were accustomed to taking big decisions and to giving wholly independent advice. In those days, there were the resources of time and money to ensure that cases were properly prepared and presented by experienced people, and I believe that the interests of justice and of the community were properly served. I like to think that my own generation at the Bar preserved those traditions and that the quality of service in Wales with outstanding advocacy from Gareth Williams, Alex Carlile and others has made sure that those traditions continue. Those who have succeeded us have struggled with increasing cutbacks. The input of an experienced solicitor in court disappeared long ago, and it is not only on the defence side that standards have slipped. A lack of resources on the prosecution side has also increased delays and wasted time and money.
But while there were difficulties in the recent past, there was nothing on the scale of the cutbacks now being pursued by the Lord Chancellor. In my view, they will destroy the criminal Bar. Like the noble and learned Lord, Lord Brown, I could not possibly advise a bright youngster to embark on such a career at the present time. There is nothing in it; there are no glittering prizes to reward years of study and struggle. Certificates for leading counsel are granted by judges through gritted teeth, and the fees are a fraction of what they once were.
Solicitors concerned in criminal work now have to become solicitor advocates in order to survive financially, and routinely take the work on which entrants to the criminal Bar would in former days have depended, and it does not stop there. If leading counsel today has a junior at all, it is like as not a solicitor advocate with a direct financial interest in the instructing firm. This often leads to inexperienced and insufficiently qualified persons in that important role. If anyone doubts that, I recall a recent case in a court adjoining the one in which I was appearing where the solicitor advocate junior applied immediately for an adjournment when he was called upon to cover for his temporarily absent leader.
Barristers’ fees in the Crown Court account for around £300 million of the criminal legal aid budget. They have been effectively static since 1997, during which period retail prices have increased by 54% and public sector pay by 49.9%. The average annual payment to criminal barristers made by the Legal Services Commission, including all graduated and VHCC cases in the year 2011-12 was £52,000, from which they paid all their expenses, including up to 20% for chambers’ fees.
The Next Steps consultation by the Ministry of Justice was found to be defective in the High Court on judicial review. That consultation paper was introduced with the following statement by the Minister:
“This is a comprehensive package of reform, based on extensive consultation. I believe it offers value for the taxpayer, stability for the professions and access to justice for all”.
I absolutely and profoundly disagree. In that paper, no attempt was made to evaluate the financial consequences of the proposed changes. They were said to be “uncertain”. They are not at all uncertain. They will do significant harm to the criminal justice system by damaging the supply and the quality of the criminal advocacy service. As a result of the judicial review application, last September the Ministry of Justice was forced to disclose the KPMG report which it had commissioned to advise it. Only then did it appear that the ministry had told KPMG to make broad assumptions about cost savings, profit margins and the availability of investment capital for restructuring businesses which appear to have been plucked out of the air and were completely without evidential foundation. Yet after a further three-week consultation forced upon them last September, the Lord Chancellor persisted in adhering broadly to his original cuts, and his conclusions are now again subject to renewed judicial review application. Are the public to be properly served?
When I look around the area designated in north-east Wales, from Llandudno to Llangollen, an hour and a half’s travel, and consider that the two custody suites are at St Asaph and Wrexham, some 35 miles apart, I find it impossible to conceive that the interests of the public in access to justice, whether in the English or Welsh language, can be served by the wholesale reduction of legal aid contracts to two firms of solicitors. The knock-on effect on the local Bar in Chester will be considerable.
The response to the original Next Steps consultation by Treasury counsel, which conducts the most serious and complex prosecutions in this country at the Old Bailey, put the position very well, saying that:
“skilled and experienced defence advocates, whose capacity and ability inspires the confidence of the court, the prosecution and their professional and lay clients … shorten, straighten, sustain and hasten the trial process: their continued presence is nothing less than vital”.
As the noble and learned Lord, Lord Brown, pointed out, our judiciary is largely drawn from experienced counsel. Destroy the Bar and the whole foundation of our judicial system is put at risk.
Lord Judge (CB)
My Lords, I declare an interest as treasurer of the Middle Temple last year; my intervention in this debate reflects that experience.
In some ways what I am going to say is entirely repetitious, but it is worth drawing public attention to the fact that for many years now the Inns of Court have been dedicated—that is the word—to ensuring that no one should be deterred from entering the profession of barrister on financial grounds. The fact that they or their families may be financially humble was not to be an obstruction. The end result has been extremely successful. The way in which the Middle Temple achieved that—the same process applies to all the other Inns—is that the large majority of the money we have each year is spent on scholarships. Last year we spent in the region of £900,000, which is much the biggest expense we have. The objective: to get every boy or girl of talent who wishes to come to the Bar through the expensive process of getting to the Bar if they are good enough to do so. Nowadays we even have scholarships, chosen on merit, but the funding that is provided for the scholarships reflects the financial needs of the individual concerned.
The take-up has been very great and very successful. My time as treasurer was spent having a good deal of contact with some exceptionally bright young men and women who wish to make a career at the Bar. However, there is one subject on which it is extremely difficult to conduct an exchange with them: what about crime? These are not greedy young men and women; many of them are inspired by a wish to see that the administration of justice works and that they play their part in it as advocates. What about the possibility of an innocent man being convicted—somebody spending years in custody? What about the possibility of a guilty man escaping justice when he richly deserves to be convicted? The same of course applies to women, but there are far fewer women defendants. This matters, and when you discuss it with them, they see the point, but many of them say, “There is no point—there’s no future in the criminal Bar. Look at what’s happened to it in the last few years”.
If you forget the cuts which have already been described by noble and learned Lords—and I am not forgetting them—there are no pupillages in criminal chambers, or very few of them, therefore what is the point of even starting to try to find a non-existent pupillage? Those young men and women have already committed themselves to the Bar and many of them will be called. The reality is that in the present climate, very few of the very best will do criminal law.
We are having a debate at the Middle Temple about whether we are spending our money wisely, as so much of it is wasted. So much of it goes to people who in the end cannot find a pupillage or, ultimately, a tenancy. We are looking at the possibility of reducing the amount of money that we give to boys and girls to get them called to the Bar in order to provide more money to support the young men and women who have got to the Bar and who have a pupillage in criminal chambers, and who then have a year or two in criminal chambers in which they hope to make enough just to cover the expenses.
That debate will take place, and it will have to recognise that if we adopt that process it will inevitably reduce the money available to encourage young men and women from a humble financial background to even try for the Bar. I think that that is a very sad possibility. When we are considering the impact of this, let us be in no doubt that if we do so the pool of talent will be reduced and the quality of talent will be diminished. The national asset identified by Sir Bill Jeffrey will be dissipated. Being called to the Bar and practising at the criminal Bar will become a matter of means, rather than merit. That is a shocking possibility.
The long-term impact has already been described by noble and learned Lords. The results in criminal trials will be affected; trials will take longer; and trials will take longer to come on. That means that defendants will wait longer for their trials and witnesses will have to wait longer and longer before they can give their evidence, in many cases in very distressing circumstances. At the same time, the long-term future of our efforts to ensure a more diverse judiciary—that is to say, a judiciary coming from every element of the citizens of this country—will be undermined. In 20 years from now, young men and young women from a financially humble background will not be available as candidates for judicial appointment. That will be to the public disadvantage.
Lord Woolf (CB)
My Lords, like other members of my former profession who have addressed the Committee today, I speak from long experience. I congratulate the noble and learned Lord, Lord Morris of Aberavon, on obtaining this debate.
This is a very appropriate time for us to discuss these matters. I was very pleased to read in my Times today Frances Gibb’s article about what is being done to provide technology for the courts, and I am very glad to be able to say that I am pleased about what is happening. I emphasise that this is very much needed, and it is about time that it was provided. I say that it is about time because I am very conscious that in the report published in the mid-1990s into access to justice for which I was responsible, I emphasised the importance of that technology being provided. Many of my report’s recommendations were accepted. When I delivered my report we were assured by those responsible in the then Lord Chancellor’s department—which was the equivalent of the Ministry of Justice—that this technology would be forthcoming. Alas, it was not, and some of the problems of the justice system today are because of that delay in provision. None the less, it is important that it should be provided now. I suggest to the Committee that the message to draw from those who have spoken already in this debate is that we are now in a situation in which positive action is needed to improve the position of the criminal Bar in particular, not in the interest of the criminal Bar but in the interest of the public. As has been made clear by those who have already addressed your Lordships, there is a real need for an efficient and effective criminal Bar if this country is to continue to ensure the high standards of justice which are so much a part of this country.
We are all still reeling from the events that took place so recently in Paris. I suggest to the Committee that one cause of disaffection of a country’s young is that they feel that the society in which they live is not just. Fortunately, in this country most people who have been brought up here can rejoice in the fact that they live in a society that can say it provides justice for its citizens, but unless something is done to arrest the present decline of the criminal Bar, I believe that that will not continue.
Although the criminal Bar is the subject of this debate, as the noble Lord, Lord Thomas, made clear, it is not only the criminal Bar; the civil solicitors who provide legal advice and assistance up and down the country are also critically affected. When somebody is faced with a criminal charge he needs to have ready access to someone who can give him, or her, the advice that they need. A situation cannot be allowed to arise in which that is no longer the position. It cannot be allowed to arise because of those who are entitled to and need advice, but also because an efficient system—one that makes the best use of the limited resources available—is made so difficult if those who appear before the court are not of the quality that is required.
The problem, which is why I suggest that this is such a critical time, is that once we have a slide of the sort described it is so much more difficult to restore the position that was once there. Things can be done with the resources available now which will at least arrest the decline. I think that when the Minister comes to reply he should show that the Ministry of Justice is aware of the extent of the problem and that something more than sticking plaster is required. There needs to be a rethink of the approach to the funding of a profession which is of vital importance to this country and to every citizen in it.
Lord Bach (Lab)
My Lords, I congratulate my noble and learned friend Lord Morris of Aberavon on securing the debate. It is an important debate, made much more significant by the experience and status of those who have chosen to speak. These include two former Lord Chief Justices, one of whom, of course, was Master of the Rolls too, one former Supreme Court judge, one former Attorney-General—my noble and learned friend Lord Morris of Aberavon himself—and two distinguished and successful silks, if I may call them that, including the Minister. I practised as a member of the criminal Bar for many years and am proud to have done so. Slightly to my surprise, and certainly much more to other people’s surprise, I find myself now in the position of shadow Attorney-General.
The years I practised in just about covered what I describe as the golden years for the criminal Bar. They were pretty golden, I have to say. There was the emergence of the Crown Court; there was plenty of work; there were not many members of the criminal Bar around; it was pretty well paid; and it was effectively a monopoly for members of the Bar at that stage. I would argue that that state of affairs has now been over for many years; perhaps 20 or a few more than 20. The important point to remember is that those golden years are not coming back. Any politician of any party who says that they are, or hints that they might be, is to be viewed with a healthy degree of scepticism, at the very least—and the criminal Bar was always very good at being sceptical about pronouncements being made. Therefore, any discussion of the criminal Bar has to happen in the context of today rather than looking back too much at a time that has gone.
As my noble and learned friend Lord Morris pointed out, over a long period the rewards for criminal practitioners have without doubt declined sharply. That is due not just to cuts or long rises in fees, although, of course, they play an important part in what has happened. As Sir Bill Jeffrey, who has been quoted already in this debate, concludes in his report of May last year, crime is down, fewer cases reach the Crown Courts and there are more guilty pleas. He says:
“There is substantially less work for advocates to do. Its character is different, with more straightforward cases and fewer contested trials”.
Of course, there are many more solicitor advocates. Sir Bill goes on to say,
“There are now many more criminal advocates than there is work for them to do”.
He goes on to make proposals for the future, all of which are well thought out, very interesting and should be considered carefully. My first question to the Minister is this: What can he tell us today about Her Majesty’s Government’s response to the Jeffrey report, both in general terms and, if possible, in more detail?
Sir Bill talks about the future of the Bar being less clear. He says that there are signs that, away from the self-employed Bar, the tide may be turning, but he fears that the Bar’s lack of confidence in the future of criminal work, or its unwillingness to adjust to compete for it, may become a self-fulfilling prophecy. I think that the following passage was referred to by the noble and learned Lord, Lord Brown. It is worth quoting. It states:
“This matters, because the particular strengths of the English and Welsh criminal Bar are a substantial national asset, which could not easily be replicated. There is also a distinct national interest in having sufficient top-end advocates to undertake the most complex and serious trials, and senior judges with deep criminal experience”.
It is very hard for anyone to argue with that view. When Her Majesty’s Government did their deal, if I may call it that, with the Bar last spring—agreeing a VHCC cut and leaving until after the election a cut in the graduated fee, with an agreement to discuss the future of both those causes to be continued until the summer of 2015—they were following a well trodden path in two respects. First, some issues were put into what might crudely be called the long grass to escape criticism for actually taking action; and secondly—and more importantly—they actually split the legal profession. The solicitor criminal practitioners were offered no equivalent agreement and some would argue that they were left hanging out to dry. Cuts have been implemented in that field and the imposition of a new and controversial system of criminal legal aid is being attempted. Instead of talks to determine the future, therefore, we actually have, as we speak this afternoon, solicitor practitioners and the Law Society itself traditionally reviewing the Ministry of Justice in court. To put it mildly, this is a deeply unsatisfactory position for our criminal justice system. To set one branch of the legal profession against another is wrong both in principle and in practice, and it does not help either branch or, indeed, the criminal justice system itself.
If my party wins the general election, we will set in train a review of the criminal justice system, concerning not just funding but the way the system works for victims, defendants, the general public and, of course, practitioners. Obviously, we are not making any promises about funding but one thing is clear: there is no future for the Criminal Bar, the criminal solicitors’ profession or even the criminal justice system itself if the Government of the day play off one branch against another. There are obviously going to be natural tensions between the various branches and the Government of the day; that will always happen. But no system will work unless all parties, including the Government, work together.
The Minister of State, Ministry of Justice (Lord Faulks) (Con)
My Lords, I congratulate the noble and learned Lord, Lord Morris, on bringing forward this debate and on attracting such a very high calibre of speakers, as was acknowledged by the noble Lord, Lord Bach. A great deal of experience and expertise has been brought to bear on what is an extremely important subject. It is important because it goes beyond the interests of the criminal Bar as such and has important ramifications for our country, for our system and for the future. I found very little to disagree with in what was said in the debate.
The criminal advocacy market has changed significantly over recent years. I am glad that the noble Lord, Lord Bach, whom I congratulate on his recent appointment, acknowledged that we are not going to return to that golden age. The reduction in cases going to trial and the growing number of advocates, including solicitor advocates, have presented particular challenges to the future of the independent criminal Bar in its current form.
I note what was said about the judicial review and the noble Lord, Lord Bach, told us, quite rightly, that it is ongoing. It refers to the contract in relation to solicitors. It is not appropriate for me to comment on that in view of the fact that is it ongoing. If one reads the Jeffrey report, one can see that it is inevitable that there will be—and there is—a degree of tension between the role of solicitors and the role of barristers in providing advocacy services at the Crown Court. That is one of the challenges that have to be faced in the future: how the public can be best served by preserving the roles of both solicitors and criminal advocates. One of the Jeffrey recommendations, which I do not think anyone would find hard to accept, is the improvement in the teaching of advocacy at the solicitor level if solicitors are going to function in the same field as barristers. There is clearly a disparity that ought to be remedied.
The Government have found it necessary to make reforms to the legal aid system. The financial climate and the tackling of the deficit have forced some difficult decisions on the coalition. It has been important to try to ensure quality public services while balancing the books. But it is clear, and I am happy to confirm this, that the Government want to protect the provision of quality advocacy services. We have engaged extensively with the profession. Clearly, some of the engagement not always been as happily reported as it might have been. The current chairman of the Bar has confirmed that the current relationship is a good one and I hope that the engagement will prove profitable in the future.
Certainly, the engagement that took place led to several adaptations to the original proposals, including the changes to the graduated fee scheme and the commission of Sir Bill Jeffrey’s report, to which there has been much reference. He identified in his report a number of structural problems related to the history and development of the criminal Bar. He found that the criminal advocacy market is not working,
“competitively or in such a way as to optimise quality”.
There are all sorts of reasons for this and time does not allow me to engage with all of them. The decrease in the amount of crime is clearly one. There is now a rather unsatisfactory state of affairs whereby fewer younger barristers are joining professions. There is a bulge of those in their 40s and 50s. This has significant long-term risks, I accept, for the profession in terms of, “Where are we going to get senior barristers from? Where are we going to get judges with the relevant experience?”. However, as has been made clear, it is not obviously attractive for young people to go into the criminal Bar at the moment. I note what the noble and learned Lord, Lord Judge, said about diverting scholarship funds from the Middle Temple; that seems a highly constructive way in which to encourage people through those difficult years.
The Government recognise that this is a period of great transition. They have endeavoured to listen to the profession, and care was taken in developing proposals that would minimise the effect of the changes on the particularly vulnerable section of the profession—the junior part. The consultation paper Transforming Legal Aid, published in April 2013, included proposals for the graduated fee scheme, which covers most advocacy in the Crown Court, and to reduce fees paid on very high cost cases by 30%. Together, these proposals sought to target the fee reductions at the highest earners; we know that barristers who work on the most complex, longest-running type of cases receive more in fee income than others. Furthermore, the original proposals had the effect of protecting the fee income of the most junior members of the Bar. We amended our proposals, following consultation, and have amended the very high-cost cases scheme while still ensuring that the fees were within planned budgets.
The second consultation, Transforming Legal Aid: Next Steps, published in September 2013, included two options. The first was an adjusted version of the original proposal, and the second was a model based on that put forward by the Bar Council, which was based on the CPS payment scheme. The outcome of that consultation was that the Government decided to implement the CPS-like model. This would still have the benefit of focusing reductions on the higher earners.
Following further engagement with the profession in early 2014, the Government announced the deferral of changes to the advocates graduated fee scheme until summer 2015, to align with the second fee reduction for litigators. This will allow us to take into account the outcomes of the review by Sir Bill Jeffrey, as well as any impact on legal aid spend from falling crime rates, and earlier remuneration changes.
Beyond the review by Sir Bill Jeffrey requested by the Secretary of State, the Lord Chief Justice has asked Sir Brian Leveson to undertake a review of the length of criminal proceedings. He has been tasked with suggesting ways to streamline the trial process, identifying ways to reduce to the minimum the number of pre-trial hearings that necessitate advocates attending court. However, the review goes much further and is likely to produce some real gains in terms of the criminal process as a whole. I note that the noble Lord, Lord Bach, committed his Government—should it be his Government after the election—to look again at criminal procedure. I suspect that whichever Government come to power will find the report of Sir Brian Leveson on criminal procedure a valuable basis on which to review this vital part of our system. The report will also impact on the further consideration of the advocates graduate fee scheme.
We have also recognised the need to regularly monitor the criminal legal aid market. That is why the Government have committed to publishing regular data reports on fee payments received by criminal advocates from public sources. The data gathering collated from the CPS and the Legal Aid Agency will help us to meet the need to collate more data on the market and facilitate a better understanding of the way in which the market is operating. I know how irritating it can be for information that is only partially accurate about barristers’ fees to be published, which can give a rather misleading picture of what are relatively modest earnings for most barristers. I have conveyed that to officials, who confirm that, in fact, much of the information is published as a result of freedom of information requests by journalists, who are not, of course, terribly interested in providing a full and accurate picture, including the facts that there are chambers’ expenses and clerks’ fees. The figures may be out of kilter because payment is made over several years. It is important that the Ministry of Justice should be responsible for accurate figures, so that the public appreciates the nature of the payments that are in fact received and gets a real picture of the criminal Bar.
It is undoubtedly true that fees have fallen in real terms. It is the Ministry of Justice’s case that they remain reasonable, although I entirely accept that compared with the other opportunities in the legal profession—at the Bar and elsewhere—they remain extremely modest. In 2013-14, mean fee payments for barristers doing publicly funded legal aid work was £70,200, including VAT and disbursements, and the median was £57,400. In the last financial year, 18% of advocates received less than £10,000, while 25% received more than £100,000. That gives a very rough picture of the range. Those are modest sums.
The Government’s response to Jeffrey is that he identifies a number of challenges for the advocacy market, but he does not in fact put forward any positive suggestions, apart from the education factor, and not all of his recommendations are for the Government to address—they are largely matters for the professional regulators of both the Bar and the solicitors’ profession. The Lord Chancellor has made clear that he is committed to working with the profession in the first half of this year, and I am sure that any future Lord Chancellor will also wish to do so. The cab rank rule referred to by the noble and learned Lord, Lord Morris, is a cardinal principle of the Bar. Of course, it is subject to exceptions, but as a principle it is very important and must be respected in the way that legal services are provided.
We are particularly anxious to ensure that defendants are aware of the choices available to them in representation. That was a factor identified in the Jeffrey report as an unfortunate by-product of the way that cases were assigned to solicitors, and is something that the professional bodies need to look at, because it is in everybody’s interests that individuals have their best opportunity to be represented.
This is a time of unprecedented change in a context of continuing financial pressure. I am glad that the noble Lord, Lord Bach, did not make any extravagant promises as to the future. It is imperative to reform the system to adapt it to the modern reality of reduced public funds and greater efficiency. The Ministry of Justice welcomes the engagement that we have with the Bar on the issue. We are concerned to maintain those constructive discussions over the coming months. At a time of major financial changes which are being felt by businesses and households across the country, the criminal advocacy profession cannot be immune from the Government’s commitment to get better value. However, while committed to finding savings within the system, we are also committed to maintaining the high standards of the criminal Bar, which, as many noble Lords pointed out, plays a vital part in our society.
The Deputy Chairman of Committees (Lord Skelmersdale) (Con)
My Lords, the Committee stands adjourned until three o’clock.