Speaking on BBC Radio Four’s Today programme, Chris Grayling said that the £1bn spent on criminal legal aid each year was too high. “If you look at the daily rate for a senior QC it can be between £1,300 and £2,000. For somebody who’s going to become a QC in a month’s time, it’s just over half that amount,” he said.
“The question is can we really afford so often to use people who are paid such an additional higher rate compared with somebody who’s nearly as experienced, who’s a seriously competent barrister, who will become a QC one day if they choose to do so.”
Grayling’s aspiration, that cheaper junior barristers should be used in preference to silks, was met with widespread opprobrium in the legal community. The minister was lambasted for his lack of understanding.
Maura McGowan QC, Chairman of the Bar, told Counsel that the most senior practitioners in any profession should undertake the most difficult or complex work: “Whether that is a complex murder trial or open heart surgery, it would be extremely worrying if those without sufficient experience were entrusted with the most serious tasks.
“The Secretary of State’s proposals are not well-considered and risk undermining fundamental principles of justice. Cherry-picking particular costs in the system, which are no way reflective of usual rates of pay, only serves to create the impression that the Lord Chancellor may not be taking enough time to engage with and understand the important role which those at the top of our profession play in the justice system.”
McGowan has told the profession to “meet the ‘fat cat’ criticisms with factual answers and not just angry despair”. Nigel Sangster QC, named as one of the top earners on the Government’s “highest paid barristers” criminal legal aid list, disputed the figures quoted by Grayling. Writing in the Times, he said: “We are not paid £1,500 to £2,000 a day. The fee for a full day in court for a VHCC case is £476, and that includes two hours’ work in the evening. If the court day is less than three hours the daily refresher is reduced to £238.”
The Lord Chief Justice, Lord Judge, has also supported the use of highly skilled counsel despite the current financial situation, but there should be no “automaticity” about this. Speaking at his final annual evidence session before the House of Lords Constitution Committee, he said: “We have to have a system in which we recognise the cases which are sufficiently serious and difficult to require the attention of Queen’s Counsel….The best counsel will tell the judge what the points are clearly and therefore a trial which might take 10 days may take seven, so we save money there.”
Grayling’s proposed review of legal aid in criminal cases will begin with a public consultation and McGowan has urged the Bar to be constructively involved from the start. She has met with the Lord Chancellor and set up a policy group with representatives from the Criminal Bar Association and the Circuits.