The mince pies were on the Lord Chancellor when we met on 18 December 2008. This came as a relief since at the Legal Aid Minister’s Christmas party, guests had been asked to bring a bottle. Such are the straitened times in which the Ministry of Justice lives. The mince pies celebrated the fact that it had been possible to honour the promise made when the interim scheme was introduced in October to devise by Christmas a new very high cost cases (VHCC) scheme sufficiently detailed for consultation. Thus we remain on course to have a replacement scheme ready for July when the current scheme expires.
The whole point of a consultation is that the profession should have its say. So if you have not yet responded, do so before the consultation closes on 18 February. The paper provides worked examples showing how it is proposed that units should replace hours for pre-trial preparation, and the old categories vanish so that all VHCC cases are paid at the same rate, albeit with a variable number of units.
Family legal aid
The New Year starts on a sombre note for publicly funded family law practitioners. The consultation on the Legal Services Commission’s (LSC) proposed £13m cuts is nearing its end, and it has indicated that the cuts are likely to be made exclusively to fees in private law children’s cases and ancillary relief. This is all too obviously the aftermath of the Baby P case, which would make cuts to fees in public law cases politically unacceptable. I very much fear that what is now proposed is likely to make private law cases uneconomic and will disproportionately harm the practices of younger barristers.
Another blow came with the consultation paper published on 17 December on Family Legal Aid Funding from 2010. This contains proposals for all advocacy in family cases (whether conducted by barristers or solicitors) to be conducted for a flat, standard fee. The only uplift will be in the High Court or for cases lasting more than two days. Payments for interim hearings will be much more profitable than final hearings, and solicitors seem likely to cherry-pick that part of the advocacy, leaving the Bar to handle the more complex cases, but without any fee increase in recognition.
Effect on women barristers
Tucked away in Annex G to the paper it is revealed that 86% of self-employed advocates, working on 83% of the cases, face a decrease in their income. Little wonder that the New Year’s message to the Western Circuit from its leader, Robin Tolson QC, was to “so run our businesses as to move away from public funding where we can”.
Also of real concern is the LSC’s insouciance (or rank indifference) to the position of the women self-employed advocates who undertake the majority of civil legal aid. The Commission has to acknowledge that their fee proposals are likely to have a greater impact on women barristers than their male colleagues. This discrimination cannot possibly be justified by pointing to “a significant increase in income for solicitor providers, a large proportion of which are female owned”. I have complete confidence in Lucy Theis QC and the Family Law Bar Association to fight these proposals, and she will have the support of Ingrid Simler QC and the Equality and Diversity Committee.
The rush before Christmas also saw the completion of Sir Duncan Nichol’s review of Queen’s Counsel appointments. A recent article in The Times was headlined “Choice of QCs still biased, solicitors say”. This reflects the fact that after a long debate ending in 2005 it was resolved jointly by the Bar Council and the Law Society, with the approval of the Lord Chancellor, that silk should identify “excellence in advocacy in the higher courts”. Such is the prestige attaching to the rank that it is only natural that solicitors and employed barristers whose practices do not take them into the higher courts should want to see their excellence recognised in the same way. But as Sir Duncan says, there is no middle ground to bridge this issue. The debate whether there should be a parallel award remains for another day. A fudge on the definition of advocacy in the higher courts will only damage the QC brand and cause confusion.
The year ahead
We are fortunate to have recruited Baroness Ruth Deech and Sir Geoffrey Nice QC to wrestle with the practical implications of ensuring that the Bar Standards Board is as independent a regulator as (to quote the Legal Services Act) is “reasonably practicable” within Clementi’s vision of the Bar Council as a single body. Also fresh to the helm is Keir Starmer QC, the new Director of Public Prosecutions. In his first fortnight in office he came to the Bar Council and in a non-confrontational manner delivered his message that CPS advocacy is here to stay, but that he wished to move forward in conjunction with the Bar. No one can doubt that we need to engage both with him, and with David Edmonds, the Chair of the Legal Services Board, who will be addressing the Bar Council for the first time on 24 January.
Desmond Browne QC is Chairman of the Bar Council