Criminal Bar: Funding

Lord Bach Excerpts

Thursday 15th January 2015 Grand Committee

[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.