Criminal Bar: Funding

Lord Thomas of Gresford Excerpts

Thursday 15th January 2015 Grand Committee

[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.