Secret E-Diary - June 2013

Sadness that the dumbing down of the office of Lord Chancellor has inevitably led to a lack of protection for an independent legal profession

May 6, 2013: “I won’t insult your intelligence by suggesting that you really believe what you just said.” William F. Buckley, Jr.

When I was a sixth-former, I decided to try for Oxford. In those days, there was an Entrance Examination. My Headmaster suggested I practise the General Paper. The first question was “Might you as well be hanged for a sheep as for a lamb?” Entirely missing the point, I wrote what I thought to be a humorous piece about the virtues of capital punishment. It was returned sporting a “Delta” and the comment: “You’re in the Sixth Form now. Grow Up.”

This came to mind as I read the Ministry of Justice’s consultation on Price Competitive Tendering and yet further swinging cuts to advocacy fees – about the fourth round of major cuts since Lord Carter’s supposedly fair settlement, already eaten into by inflation, was agreed. The intellectual basis for the proposals is so poor and amateurish that it would disgrace the average schoolchild.

We all worried when the office of Lord Chancellor was reduced to a mere ministry in the House of Commons. This is no criticism of the present occupant. Indeed, he may feel embarrassed on occasion, dressed in borrowed, if gorgeous, robes proclaiming this former great office of state. The Lord Chancellor existed as a vital safeguard to the independence and quality of our judicial system: a uniquely respected and powerful figure - a member of the Executive and the Legislature, and heading the independent Judiciary – there to protect the judges and our equally independent legal profession from the other powers. We were assured that the dumbing-down of the Lord Chancellorship would not affect this necessary protection. Porky pies, I fear.

At an earlier stage of my education, an irate Classics Master, having listened to me mangling a passage of Caesar’s Gallic Wars, asked: “Byfield, are you a fool or a knave?” An interesting choice… Do these proposals arise from declining intellectual standards, foolishness, political ambition and incompetence or are they a deliberate plan to finish off the publicly-funded referral Bar, and the devil (or some future Lord Chancellor) take the consequences?

Here, at the Bailey, I am defending a young man charged with Murder. The victim is a former judge. If convicted, it will be a twenty to twenty-five year minimum sentence. He may never be released. It is not a question of complexity. What justifies representation by Queen’s Counsel is the gravity of the crime that the defendant is alleged to have committed and the gravity of the minimum punishment the state commands for him if he is convicted.

The Government is not shy of using our taxes to pay for leading counsel to represent its interests in court when it chooses. I bet, pro rata, it pays much greater sums for its own representation now than it pays publicly funded barristers presently to represent the prosecution and defence of those charged with the gravest crimes, even before considering these proposals. One standard for the Government; another for the governed.

To take but one example of the juvenile thinking inherent in this process: it is claimed that by reducing the fees paid to advocates on a sliding scale, this will shorten the length of trials. This must be based on a belief that defence advocates are the principal drivers behind unnecessary and improper delay, unless the Ministry is simply being disingenuous. That is a grave allegation of professional misconduct and dishonesty. Evidence for such a proposition might be expected.

What about the number of defendants in a trial? Paddy Corkhill is in a trial with nine co-defendants: does this affect length? The amount of evidence produced by the Prosecution varies from case to case: one junior has been defending in a case with 12,000 pages of exhibits and 212 witnesses – might this lengthen a trial? Prisoners routinely arrive late at court from prison – perhaps this causes delay. Sometimes the judge is given other work, jurors are delayed or even ill, issues of disclosure arise. Witnesses turn up late, defendants can have genuine illnesses or may be being uncooperative. What assessment has government made of these “drivers” of delay?

Would tapering fees in trials work? The Government has already cut and tapered fees in cases lasting over 40 days. What impact, if any, has that had? Is Government saying that the Court’s trial management powers are inadequate or that the judges are not doing their job? If advocates are not causing unnecessary delay, is the Government suggesting they should behave unprofessionally and cut corners? Would the Lord Chancellor, if appointed Secretary of State for Health, taper surgeons’ fees on the same basis?

My conclusion: disaster to this country’s international reputation for fairness and for legal excellence. My prediction: Trouble.

William Byfield is the pseudonym of a senior member of the Bar. Gutteridge Chambers, and the events that happen there, are entirely fictitious.