The pay dispute by barristers could have halted trials for high-cost cases. Mark Smulian looks at how solicitors fear that others – themselves included – might suffer as a result of the row.


The stroppy shop steward shouting, ‘Everybody out’ was an established part of British life in the days when trade unions dominated most work-places. At any provocation, tools went down and work stopped.


That the Bar Council could ever conduct itself in the manner of the strike leaders immortalised by Peter Sellers in ‘I’m Alright Jack’, or by Kenneth Cope in ‘Carry On At Your Convenience’, would once have been unimaginable.


But a strike, even if it is not called that, hit the very high-cost category of criminal legal aid cases. On 1 April, defence barristers decided that the government’s new system for calculating costs left them severely underpaid.


Barristers have complained that they could be paid only £20 an hour. With most barristers having refused to sign contracts to operate the new system, the result was that trials for offences such as terrorism, murder, fraud and drug trafficking could have been stopped because defendants were not represented.



Faced with the prospect of what his spokeswoman called ‘a full-blooded confrontation’ with the bar, Lord Chancellor Lord Falconer beat a partial retreat and set up a review, which initially failed to resolve the dispute (see [2004] Gazette, 4 June, 1).



The new system is less than three months old and the review has already reported confidentially, which counts as lightning speed by government standards. There was a fear among solicitors that the government would attempt to buy peace by offering more money to barristers. Last week a deal was agreed that is estimated to have cost the government around £17 million (see News pages).


This might not matter in itself were not the total budget for legal aid capped so that, if barristers get more, someone else must get less.


Big money is involved. According to the Department for Constitutional Affairs (DCA), out of the total £2 billion legal aid budget, 55% goes on criminal cases, and half of that is absorbed by very high-cost cases, although they make up just 1% of all criminal cases.


The Law Society says that spending on civil legal aid has fallen from £564 million in 1999-00 to £483 million in 2002-03.


Speaking ahead of the resolution last week, Richard Miller, director of the Legal Aid Practitioners Group, said the DCA has been looking in the wrong places by targeting defence teams for savings.


He maintains: ‘It is understandable that the bar has reacted as it has, but the simple fact is that there is a capped budget and any increase paid to the bar impacts on solicitors and clients.


A Bar Council spokesman hits back: ‘This is a specious point because it could be argued that an increase in any part of the budget could lead to a diminution elsewhere. What should be addressed is the structural ring-fencing of the budget, especially as we believe that there is sympathy for change to this within [Parliament's] constitutional affairs select committee.’


Mr Miller says the issue is to look at the external factors. ‘It is all very well to rein in defence costs but that is small compared with those of prosecutions and the police. Huge amounts of money are wasted by prosecutions.’


Mr Miller cites as examples a £1 million trial on terrorism charges which collapsed in March at Kingston Crown Court, and cases where the Serious Fraud Office has taken complex and costly cases to court only to see them thrown out.


‘There has got to be a case for looking at prosecutions,’ he says. ‘The government and media focus on waste by defence [lawyers] when that is minuscule by comparison.’


Mr Miller pours cold water on the idea of saving money by one solicitor representing multiple defendants. He predicts that this would lead to extra costs if cases had to be halted when conflicts emerged between defendants.


One possibility he suggests is for judges to be ‘more willing to make defence costs orders, enabling the recovery of costs from the assets of those who have been convicted where that can be done’.


But he says: ‘I don’t think any concession should be offered straight to the bar, as there is no case in a capped budget for most of it to go to barristers.’


Also speaking ahead of the deal, Rodney Warren, director of the Criminal Law Solicitors Association (CLSA), took a similarly robust line with striking barristers: ‘Industrial action is always regrettable. It would be even more regrettable if the government were to give in.’


Mr Warren maintains that ‘solicitors have every bit as much, if not more, justification in seeking an increase in rates’.


The Bar Council spokesman responds: ‘This sort of petty sniping is counter-productive and politically naïve. The focus of each branch of the profession should be combining to make a forceful case to the Treasury and the DCA for proper public funding.’


Additional payments made to the bar, Mr Warren maintains, will have an ‘outrageous and unacceptable’ impact elsewhere in the system, particularly if the result is to slash the money available for civil cases.


Mr Warren says: ‘It could not be right for QCs to expect an increase if it meant that people with housing problems could not get legal advice to protect where they live, for example.’


The bar spokesman says: ‘We need to be clear about the types of cases involved: they involve terrorism and serious crimes in which it is in the public interest to have prosecution and defence of the highest calibre. Those who talk about this impacting on housing cases should spare us the hyperbole and focus on the real issues.’


But Mr Warren suspects that the strike may not have been solid in any event, since barristers are still being paid for cases taken under the old system and cases under the new system are still to come to court.


‘One hears of cases where barristers are quietly working in the background, pending the dispute being over,’ he says.


Though many barristers have refused to sign contracts for criminal legal aid until the issue of pay is resolved, Bar Council chairman Stephen Irwin QC urged barristers in May to act without payment to allow cases to continue.


Ian Kelcey, vice-chairman of the CLSA, says: ‘There are far more justifiable and morally appropriate things for the legal aid budget to be spent on than fees to QCs and to the bar.’ He too thinks that blame for high costs has been misdirected. ‘The bar has done very nicely out of these cases, but so far as solicitors are concerned they have been the butt of criticism from the government and others over costs,’ he says.


‘We are saying, “don’t shoot the person at the end of the line in the defence team”. Look at the costs of prosecutions, whether they are properly put together and whether they are too complex.’


Mr Kelcey, senior partner in Bristol firm Kelcey & Hall, also calls for a wholesale revision of the case categories to which the very high-cost rates apply.


At present, cases qualify where they last more than five weeks and run up defence costs of more than £150,000. Mr Kelcey calls this ‘archaic’, arguing that it assumes some cases are complex when they are not, while omitting cases which genuinely are complex.


He asks: ‘Why should terrorist crimes, serial murder and rape be in a lower category than complex frauds, when they are often very complicated cases?’


Judges should do their bit towards cutting costs by being readier to change case dates, where necessary, to times when the original legal teams can be reassembled to avoid the expense of new people coming to the case, Mr Kelcey says.


Evidence should be loaded onto compact discs so that ‘you have still got to go through it but at least it would be in a convenient, portable form’.


Law Society President Peter Williamson agrees that costs must be brought under control and supports measures to curb fees.


Again speaking before the deal became public, he pointed out: ‘The more that is spent on fees to barristers in high-cost criminal cases, the less is available to people in society who need legal aid advice for housing problems, family issues and domestic violence.


‘In its negotiations with the bar, the government must not lose sight of the fact that access to good quality legal advice at an early stage is vital if we are to tackle social exclusion properly.’


In addition to the DCA, the Law Society, Bar Council, Crown Prosecution Service and Legal Services Commission, the Treasury’s presence on the review was a powerful reminder that the dispute all comes down to arguments about the use of public money.


But perhaps the thought of barristers swapping their wigs for placards, and bringing Ludgate Circus to a standstill as they marched on the Old Bailey, was too much even for the Treasury.



Mark Smulian is a freelance journalist