Once upon a time nothing happened in the Long Vacation. No longer. At 9am on Thursday, 20 August the phone rang in High Holborn and it was the Legal Aid Minister on the line. His bombshell news was of yet another Consultation Paper from the Ministry of Justice (“MoJ”). The Paper which arrived that afternoon bore the title “Legal Aid: Funding Reforms”. This deceptive euphemism disguised the fact that the contents were no more than a catalogue of proposed cuts – weeks before the Prime Minister first used the C-word in his speech to the TUC at Blackpool. Of course, euphemism becomes necessary, when cuts of 23% in defence fees are proposed. You then have to call them “efficiency savings”, when in truth they are the very reverse. They will damage efficiency and quality advocacy by driving experienced practitioners out of the work.

 Both we, and the MoJ, know that has already happened in family law. It was conclusively demonstrated by the recent King’s College, London survey for the FLBA. By mid-September the LSC had still not decided what cuts to impose in family fees, but in July the Commons Justice Committee warned that if the scheme was implemented as proposed, there was a serious risk of an exodus of experienced practitioners from publicly funded family law. It will be no different with criminal work.

Nothing which has happened so far in what is proving to be an “annus horribilis” for the publicly funded Bar has caused anything like the postbag of outrage reaching me about these cuts. Hence only one topic in my column this month. The rage is fully justified, when one reads Lord Bach’s stated belief that his proposed cuts are “policy changes, which are necessary, irrespective of economic circumstances”. In seeking to lower defence fees to the level of those paid by the CPS, the government is, quite simply, tearing up the Carter bargain. Their reasons turn logic on its head.

Take, for example, their reliance on the CBA’s evidence to the Justice Committee in October 2008 that it was “concerned at the marked discrepancy between the fees paid to prosecution advocates and defence advocates in the Crown Court”. The MoJ knows perfectly well that this was an argument for removing the anomalous differential by raising prosecution fees (which were not addressed by Carter) to the level of RAGFS fees. Indeed, prolonged negotiations with the CPS had been taking place to achieve that very objective. Meantime, practitioners continued to accept prosecution work in the belief that an increase in paltry fees (particularly for sex cases) was close at hand. Many are now re-considering.

So how are we responding?

  • I have already met with Bob Heslett, the new President of the Law Society. Solicitors and barristers are at one in their opposition to these changes. We shall be marshalling that opposition both nationally and on the Circuits. In the meantime write to your MP – the FLBA were highly successful in this regard.
  • I have agreed with Jack Straw that he must see the Circuit leaders so that he is left in no doubt about the repercussions of what is proposed.
  • I shall be taking every opportunity to raise the matter with MPs at all three Party Conferences. I am also seeing Sir Alan Beith, the Chairman of the Commons Justice Committee.
  • We are taking advice on the implications of the complete failure of the MoJ to carry out an assessment of the impact of their fee cuts. To promote policy without first assessing the consequences of what is proposed (including the impact on BME practitioners) is the very antithesis of a proper consultation process. It is not even clear what sum the MoJ wishes to save.
  • Not for the first time we shall be relying on assistance from Professor Martin Chalkley. In assessing the true comparative cost of prosecution and defence advocacy, he will be joined by Europe Economics, who recently looked at the true cost of CPS advocacy.
  • Finally, we will be accumulating evidence of the substantially diminishing number of criminal pupillages on offer from this October. This is a barometer of the poor health of chambers doing publicly funded work. It also reflects what I have found on visits to law schools that bright young students are being advised not to consider a career in publicly funded work. So much for diversity.

It is evidence of how ill thought out are these proposals that the LSC seems to have been as much surprised as the professions. On 11 September they announced that tendering for the 2010 Criminal Contract due to begin in October has been deferred for “at least two months”. Also deferred was the start of the BVT pilot in Bristol and Manchester for police station and magistrates’ court work. To their credit, the LSC have acknowledged that it would be unreasonable to start the tendering process until the rates for advocacy are known. 

It’s an ill wind …

Desmond Browne QC is Bar Chairman