Barristers' Fees (Hansard, 8 November 2000)

§ The Lord Chancellor (Lord Irvine of Lairg)
My Lords, the noble Lord asks a timely and important 1528 Question on my current proposals for barristers' fees in two distinct categories of publicly funded work, family and criminal. As a distinguished solicitor, the noble Lord shows a commendable concern for barristers as distinct from the solicitor profession. My proposals have been the subject of extensive consultation from 4th July to 12th October. I shall be provided with a final analysis of responses this Friday. These I shall consider carefully, along with all the representations made to me. I would be concerned if I concluded that any significant drain of talent from these areas of practice was likely due to a new fee regime. However, because of current market circumstances, I am not presently persuaded that such a likelihood exists.

§ Lord Clinton-Davis
My Lords, I thank the noble and learned Lord the Lord Chancellor for that reply. Is he aware that solicitors have shown a commendable concern, equal to that of barristers, for the efficacy of the Legal Aid Fund? In view of the fact that the noble and learned Lord is to meet them either separately or together—preferably together—will he ensure that he represents fully in the discussions their vested interest in making the legal aid scheme work? Will he do what he can to bring together the viewpoint of the Law Society and of the Bar Council in that regard? It is important that they speak with a united voice.

§ The Lord Chancellor
My Lords, I believe that my noble friend asks whether I retain an open mind on the proposals and will be flexible in my approach. I certainly shall be. I aim for a fair playing field between solicitors and barristers. I shall meet the chairman of the Bar Council and the president of the Law Society at the end of November. I shall consider the representations they make with an open mind and will come to my decisions before Christmas.

§ Lord Ackner
My Lords, will my noble and learned friend the Lord Chancellor confirm—I am sure he will— that after prolonged negotiation between his department and the Bar Council there was agreed in 1997 and thereafter put into effect an agreed mechanism for remunerating criminal legal aid? Will he also confirm that this provided a complex formula for assessing fees and that there has been no uplift since 1997 despite the RPI increasing by over 10 per cent? My question is therefore this: is the noble and learned Lord the Lord Chancellor seeking to discredit this agreed mechanism by imposing punitive deductions in regard to the scale already agreed? If so, does he accept that there is truth in the old adage that if you pay peanuts you will ultimately get monkeys?

§ The Lord Chancellor
My Lords, the facts are that my proposals are confined to cases up to 10 days in length and they concern what we call "graduated fees". The noble and learned Lord is right that in criminal work graduated fees have applied to defence barristers for almost four years. These are acceptable as reasonable by the Bar. A graduated fee scheme sets 1529 fixed fees for different items of a case, including preparation and hearings, in place of the bad old system of brief fees, daily refreshers and ex post facto assessments of reasonableness.
My proposals are designed to remove an inequity under which prosecution counsel were paid much less than defence counsel to the prejudice of the CPS when engaging prosecuting counsel. The proposal therefore is that criminal graduated fees should be reduced by 10 per cent overall to pay for an increase in prosecution fees to bring about equality and to introduce a graduated fee system for prosecution counsel. The Bar should benefit overall and therefore I do not accept my noble and learned friend's strictures.

§ Lord Kingsland
My Lords, bearing in mind the judicially reviewable duties of the noble and learned Lord the Lord Chancellor under Section 25(3) of the Access to Justice Act, noting that one of these duties is the obligation to secure family law services by a sufficient number of competent practitioners and taking into account the fact that the circumstances for a cost uplift are extremely constrained, how can the noble and learned Lord the Lord Chancellor fulfil this duty when the rates of pay for a senior junior counsel will be the same as for a second six month pupil?

§ The Lord Chancellor
My Lords, the criteria that I must apply are set out in different statutes. Of course, with the liability to judicial review I shall express myself with great care. But in both areas—family and crime—I shall want to ensure that a sufficient number of competent barristers are available to carry out the publicly funded work in question; and that will be achieved.

§ Lord Goodhart
My Lords, will the noble and learned Lord admit that his plans involve a considerable reduction in legal aid fees paid to criminal law barristers and even more so to family law barristers? Will he accept that it is likely to be a serious deterrent to would-be young barristers who, among other things, know that they will leave university owing debts of up to £20,000?

§ The Lord Chancellor
My Lords, no, I do not accept that. I believe that all professionals must recognise that they are affected by market circumstances, the same as the rest of us. Those affecting the Bar are that the number of people entering the profession increased by 3 per cent last year and the amount of family work has fallen over the past two years so that there is increasing competition between a larger number of barristers for a similar amount of work. There is also evidence that some criminal law barristers work less than full time. But I am not presently persuaded that there is likely to be a lack of supply of competent barristers in 1530 either area to carry out publicly funded work to the extent required at remuneration the public would regard as fair.