Attorney general warns bar against boycotts
The attorney general has urged barristers not to return instructions they have accepted for the most serious criminal cases in protest at fee cuts, warning that if they do, the government may ‘look elsewhere’ for others to do the work.
Addressing the Bar Council’s annual conference at the weekend, Dominic Grieve QC also advised barristers not to boycott the controversial Quality Assurance Scheme for Advocates (QASA).
Grieve, who as AG is also head of the bar, said he is ‘well aware that feelings are running very high’, particularly in relation to very high cost cases (VHCC). He said he understands the concerns and sympathises with the difficulties faced by the bar.
From this month, fees paid for VHCC work will be cut by 30%, though the government has agreed transitional arrangements under which some ongoing cases will continue to be paid at the old rates.
Grieve said he is ‘strongly of the view’ that barristers are entitled to refuse to accept new instructions at a fee they find unacceptable, as the majority have indicated they will do.
But he said: ‘I do have concerns about returning instructions that have already been accepted, and particularly so where a trial date has been set.’
He said the resulting disruption to the courts ‘may bring about the changes you desire’, but warned ‘equally, it also carries with it the very serious risk that within government there will be a view that people should look elsewhere for the service to be provided’.
He gave no indication of where the government might go to find advocates for VHCC work, but said: ‘I think is something which the bar has got to bear in mind.’
On QASA, Grieve said he is ‘perfectly well aware’ how unpopular the proposed regime is, but he said ‘it is impossible for any profession to avoid the level of scrutiny which regulators now provide’.
He said he supported any process that helps to ‘support and bolster the high standards of which the criminal bar is rightly proud and which identifies those who are not able to achieve them’.
To refuse to be assessed, he said, is ‘not going to strengthen the bar’s case’. Rather, he suggested, ‘it would be much better for the bar to demonstrate its ability in this area.’
Insisting that ‘good advocates have nothing to fear’ from the process, Grieve said: ‘For the bar not to engage constructively with whatever scheme is eventually pursued would be counterproductive.’
He added: ‘I know that times are extremely difficult, but my view is that engagement with the process of change is the most likely to lead to satisfactory outcomes for the future of the profession, particularly if the criminal bar can demonstrate its indispensability in the process.’
Former chairman of the Criminal Bar Association Paul Mendelle QC told the conference that QASA is a ‘bad idea, badly executed’ that would not guarantee quality. He warned: ‘It creates a fundamental rebalancing of the relationship between the bar and bench,’ adding it is ‘constitutionally unsound, wrong in principle and deeply flawed in practice’.
On the scheme, under which advocates will be assessed by judges, Mendelle said: ‘Criminal defence advocates operate on a less favourable side of the court room and suffer judicial disapproval. I wouldn’t have made it this far if I’d had to depend on judicial approval.’
Grieve did not accept Mendelle’s objection in relation to judicial approval, saying barristers already have a ‘symbiotic relationship’ with judges and have always been reliant on judges as they progressed their careers. ‘It wouldn’t be held against you if you represent causes that were unpopular,’ said Grieve.
The Criminal Bar Association's chair Nigel Lithman QC said plea only advocates (POAs) – solicitor advocates who represent clients where they plead guilty, but do not conduct trials – ‘will be the death of the criminal bar’.
But Mendelle suggested that in its fight against POAs the bar has been ‘tilting at the wrong windmill’.
He said it recognises the work that solicitors have done on the magistrates’ courts for years and means they will for the first time be regulated in what they do.
On the wider criminal legal aid cuts, Grieve accepted there are ‘many reasoned arguments that can be made why we should actually spend more on legal aid as a matter of public policy’.
But he said legal aid is a ‘substantial budget item’ and in the current financial climate those arguments would gain little traction among any political party.
‘I haven’t come across any political party that has suggested that there is some dramatically different alternative to the current policy of trying to curb legal aid,’ he added.
Responding to a question from the floor, Grieve agreed that the fee cuts will not encourage the best students to come to the bar in the future. He said: ‘There is a serious issue of whether the bar will be attractive.'
Even without the cuts, he suggested the criminal bar would still be facing a ‘very considerable crisis’ due to the reduction in crime levels and ‘oversupply of barristers’.
‘The combination of increasing supply and decreasing demand is not sustainable. The criminal bar needs to be at a size where it can thrive, with sufficient barristers to allow for competition, but with enough work to provide an acceptable living,’ he said.
He wanted to see the self-employed criminal bar remain as an ‘essential part of an effective criminal justice system’ but suggested it has to reform.