Criminal Bar: Funding

Lord Morris of Aberavon Excerpts

Thursday 15th January 2015 Grand Committee

Asked by

[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.