Criminal Legal Aid

Robert Neill Excerpts

Tuesday 8th May 2018 Commons Chamber

[Robert Neill (Bromley and Chislehurst) (Con)]

It is a pleasure to follow my Justice Committee colleague, the hon. Member for Enfield, Southgate (Bambos Charalambous).

It is important that we are having this debate. I refer Members to my declarations in the Register of Members’ Financial Interests, and to the fact that I have the honour to chair the Justice Committee. During the last Parliament and the one before it, the Committee considered a number of issues affecting remuneration of the Bar and the way in which we operate our criminal justice system, as well as broader issues, and we heard a great deal of evidence. There is no doubt that the debate touches on very serious issues to which there are no easy answers, but it is also a specific debate about a specific statutory instrument. I will therefore do my best, in the time available, to confine myself to its specifics, but I think it right to give a little of the context.

I speak as someone who practised for 25 years at the criminal Bar, who regards it as one of the finest things someone can do, who has friends still in practice at the Bar, and who is conscious of the hours that are worked and the things that are thrown at people at the last minute, that it is a demanding profession and is not well rewarded—and, arguably, is not rewarded as well as it should be in the circumstances. But we should take a step back from that, because some of the things we are talking about have, I regret to say, always been there. The last minute brief was a feature of my very early days in practice and continued all the way through it, and the large quantities of unused material that people were never paid for reading have also always been a feature of the scheme.

I do think, however, that we should perhaps look at future designs of the scheme now, because of the issues we have found around disclosure, which is ever more important and has grown with the use of digital and online material. We need to look again at whether it is reasonable not to fund people for reviewing the disclosure in these cases. I am conscious of that because I prosecuted a case which we rightly abandoned upon its second appeal when disclosure that should have been made was finally—some years too late, I am afraid, for the person serving the sentence—made to us. So we do need to take that seriously, but, again, it is not a part of the debate on this statutory instrument. That system has always been there, and revoking this statutory instrument will not solve the issue of payment for people dealing properly with disclosure, nor will it solve the issues of the late return or the late nights that we have always been used to. Those are broader matters.

It is also worth observing that the pressure on incomes at the criminal Bar, which I accept has been real and not made easy by extraneous factors such as the cost of training, has not occurred only under this Government or the coalition. The hon. Member for Enfield, Southgate referred to there being no increase in fees since 2007, but, going back further, the squeeze at the Bar started under the Blair Government, from 1997 onwards, so the idea that this has been placed upon the Bar by the current Government is not fair and is not based on the evidence.

It is clear that the Bar now has issues with the scheme. I am deeply saddened that colleagues and friends feel unable to accept work under the scheme. Is it perfect? No, I am sure it is not. Would it be better if more money could be found? Yes, I am sure that it would be. Is revoking the instrument going to solve that? No, I do not think it will. We need a much broader and maturely based debate about that.

I particularly take note of the intervention of my right hon. and learned Friend the Member for North East Hertfordshire (Sir Oliver Heald), who was the Minister at the time and whom I have known since my earliest days at the Bar. I know he is an honest and trustworthy man and when he says that there was a real and genuine attempt to engage the professions in this, I know he is telling the truth. It is also worth bearing in mind that the best evidence is sometimes what is said at the time, and we have a number of quotations from that time that show very clearly that all the representative bodies at the Bar gave a broadly favourable welcome, on the basis that it was not perfect—they did not pretend it was—but it was an improvement on what was there.

The chairs and membership of the Bar Council, the Criminal Bar Association and other representative bodies change annually. They cannot bind their successors and attitudes change, and I am not going to speculate on that. However, it is unfair to say that this was brought in by the Government against a backdrop of universal hostility, because that is not the case; broadly, a fair wind was given to it at the time. Issues have perhaps blown up subsequently, however, and many of us who keep in touch and follow this matter closely might suggest that the real problems are not purely around this statutory instrument, but that broader issues need to be addressed.

The most important things we need to do now do not include talking about the revocation of a scheme that could be improved. Instead, we must make the case for more funding for the criminal Bar. My right hon. Friend the Member for Chingford and Woodford Green (Mr Duncan Smith) talks powerfully about his own experience, and friends and children of mine suffer exactly the same difficulty. It is a lot harder to start at the junior criminal Bar now than it was in my day, and that is not a healthy situation. We need a stream of bright, talented and dedicated young people coming through, and this issue deserves a longer and broader debate, in terms of both time and context, than the narrow one we are having now.

[Victoria Prentis]

Does my hon. Friend agree that the justice system stands or falls together, and that far from being broken, it is one of the finest justice systems in the world? It is worth £25 billion a year, and we need to ensure that all levels of the Bar, and our solicitor advocates, are supported in the work that they do.

[Robert Neill]

My hon. Friend is absolutely right. There are pressures and difficulties, and some areas of the system creak, but talking it down does no justice to anyone. At the end of the day, it is an immensely better system than anything else we have on offer. If we want to look at really badly funded systems, we can look across the Atlantic and to other places, which would horrify all of us. We are not in that situation, and I do not want to get into that situation, but we will only ever go forward if we can make a measured case for why, for example, it is cost-effective to have representation because litigants in person actually burn up more time and cost than if they were properly represented, and the trials take longer. Let us make the business case around that. That will not be done, however, by revoking this instrument or by people not accepting instructions—however great the temptation—and people going unrepresented. I hope that the Bar and the solicitors will feel able to get back round the table with the Ministry of Justice.

I was concerned to hear the powerful evidence given to the Justice Committee recently by the Criminal Law Solicitors Association. It was suggested that a duty solicitor was probably less well remunerated than a teacher with comparable experience. In a competitive world, that does not seem entirely fair. They are both demanding jobs, and we need to find a constructive way forward rather than walking away from these matters.

[Bob Stewart (Beckenham) (Con)]

I have had contact with five junior criminal law barristers, and not one of them earns more than £21,000 a year. That means that after they have paid tax and expenses, they have to live on about 10 grand a year, in London.

[Robert Neill]

My hon. Friend makes an important point; it was in fact the last point I was going to make. If we are to win this debate on fairer funding, we need to get back to a more honest awareness of the realities of remuneration. The press have something to answer for in that regard. It is all too easy to talk about fat-cat barristers and the occasional £1 million-plus fee, which usually relates to a case that lasted about 18 months and was of a highly complex nature. Those sorts of cases are not around any more, for a raft of reasons, and those reports wholly misrepresent the position of the vast majority of barristers, who are working on really modest take-home incomes. Above all, we forget the level of deductions that have to be taken out. My hon. Friend’s point is an entirely fair one. I want to see more money in the system, but that will only come from having a strong and well-managed economy. I want to see more money in the system, but I do not think that this is the right way to go about it.

[Andy Slaughter]

The Chairman of the Select Committee is making a very good case, but he does not seem to be persuaded by his own advocacy. If this scheme corrects some of the anomalies of the previous scheme, it does so only by reducing the brief fees overall to below a level that was already extremely low. The purpose of annulling the statutory instrument is to make the Government go back and renegotiate on that basis. Does the hon. Gentleman not accept the logic of that?

[Robert Neill]

I do not accept that logic, persuasive though it might be, because annulling the SI would simply put us back on to the old scheme. I would prefer to bank what we have—imperfect though it is—and move on, pressing the Government to move more swiftly than Ministers currently intend to do on the review of the scheme, and starting to talk urgently, at the earliest possible date, with the Bar Council and the Law Society about what could be changed. I want improvements as much as Opposition Members do, but I happen to think that taking an unduly partisan approach does not serve the overall purpose of the matter.

An independent Bar, and an independent and robust solicitors profession, are a critical part of the rule of law. That is what it comes down to, and I do not accept that this is necessarily a welfare state issue, although I understand the point that the hon. Member for Leeds East (Richard Burgon) made. Ultimately, this is about ensuring the rule of law. That is the most important thing, and the system does have to be properly funded. I say with some regret to Opposition Members that, although I have sympathy with many of the points made by the Bar and the solicitors in their evidence to us, annulling this SI is not the right route to go down. I would prefer a more consensual, evidence-based approach, and a calmer one. I hope that once this debate has passed, we will all be able to get down to that.

--- Later in debate ---

[Alex Chalk (Cheltenham) (Con)]

When it comes to the opposition to the changes to the graduated fee scheme, the Government are entitled to feel a little perplexed because the changes were discussed with the leadership of the Bar. Francis Fitzgibbon, QC, then chair of the CBA, said that

“the CBA believes that the new scheme is a great improvement on what has gone before, and we should at least give it a cautious welcome as a step in the right direction.”

Secondly, the aim of the changes, to rebalance public funding so it rewards the junior Bar more fairly, is unassailable. On that point, I will support the Government tonight.

It would be a great mistake to misread the message coming from the Bar, because my clear sense is that its protest is not really about the intricacies of these specific provisions. Instead, it reflects years of pent-up anguish and frustration about the state of the criminal defence profession and, indeed, a profound sense of foreboding for its future.

The Bar is in a fragile state and needs decisive support, but it does not lie in the mouth of the Labour Opposition to make criticisms about on that, because I know full well from having been a practitioner at the time that, at a time of rising budgets across the piece in health and education during the late 1990s and in the first decade of the 21st century, Labour failed time after time to put more money into the Bar. In 2003, Tony Blair spoke of the “gravy train” of legal aid. In 2006, Lord Falconer referred to the legal aid bill as being “unsustainable”, and there were further plans to cut it in 2010. One has to consider those remarks with great care.

I wish to make some brief observations in the time available; I wanted to say a lot more but I shall confine myself to this. When considering the amount we spend on justice and legal aid, we should put it in context. Treasury Red Book figures show that total public sector spending for 2018-19 is expected to be £809 billion. The total Ministry of Justice budget is less than £7 billion. To put that in context, more is spent on welfare and pensions in two weeks than is spent on justice, and the amount spent on international aid—about £14 billion—is approximately double the entire justice budget. To put it another way, we spend more on the aid effort in Syria alone than we do on the entire legal aid budget in our country.

There are concerns about where this all heads. There will be difficulties with recruitment and retention, and we cannot have a situation where this is a just a job for posh kids with a private income. There is also a risk of injustice. If people are not available to do the work we require them to do, it will not just be a case of people being convicted when they should not be; there is a danger of people not being convicted if juries take matters into their own hands and decide that they want to deliver their own brand of justice.

I am not suggesting this is easy at all, but I want to make three simple points. First, if the criminal Bar falls over, the cost to the state will increase dramatically. The overheads involved in employing hundreds of barristers in a fully fledged public defender service will be extortionate and unaffordable. Secondly, the culture will change, and people will be far less likely to work after-hours and at the weekend. Thirdly, the sums of money required to secure the criminal Bar are modest. Barristers are not seeking wealth; they are seeking viability.

[Robert Neill]

My hon. Friend is absolutely right on that last point about the motivation of barristers. Does he agree that one of the important qualities that the independent Bar brings, as indeed does an objective solicitor, is precisely that word—objectivity? The objectivity brought by a barrister has been seen in many cases, for example, those where disclosure failures have occurred, and in the willingness to root out what is absolutely necessary, fearlessly, on behalf of a client. That cannot be replicated.

[Alex Chalk]

That objectivity is vital. In the United States, they have dyed-in-the-wool prosecutors. I remember the case of Michael Jackson, with Tom “Mad Dog” Sneddon; all these people do is prosecute. One great value we have in this country is that people prosecute and defend. That level of objectivity is fantastic. It also means that people are incentivised to go the extra mile, because you are only as good as your last brief.

The criminal Bar is precious. This is not about sentiment. This is a flinty-eyed assessment of a real and pressing need. Once this matter is over tonight—I will vote with the Government, because the Opposition’s proposal is, with respect, misconceived—I urge the Government to look again at how the criminal Bar can be supported, as there is a pressing need.