Criminal Bar (Public Funding)

Peter Bone Excerpts

Wednesday 15th September 2010 Westminster Hall

[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.

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[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.

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[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)]

Order.

[Mr Buckland]

Forgive me.

[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.

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[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.