Giving evidence to MPs this week about the government’s planned legal aid cuts, the lord chancellor said: ‘The problems that the bar faces at the moment are not simply down to me saying we are going to cut an amount of money from the daily rates that we pay.’
Chris Grayling accepted that rates had gone down, but he said they are not ‘unreasonable’.
He told MPs: ‘There is a genuine issue around the availability of work, around the number of barristers looking for that work, the number of barristers being trained and around the competitive situation between solicitors and barristers, which are not of my making in the 12 months I’ve been doing this job.’ He added: ‘Privately many senior barristers say to me they recognise the bar has got problems.’
He has a point: not all of those problems have been caused by him and they are not all in his gift to sort out.
But one of the most pressing issues facing criminal barristers is certainly down to him – fee rates, which have been cut over several several years.
Barristers are soon to face further swingeing cuts. The first tranche – a 30% cut to ongoing very high cost cases (VHCC), the most serious and complex criminal cases, is due to be implemented in November.
Barristers who started work on a case months ago at a particular fee rate are being asked to continue for a 30% reduced fee.
Senior barristers who do VHCC work have signaled their resolve not to accept the cuts and to return the briefs that they have been working on, when they are introduced.
In those cases, barristers may have spent a year preparing the cases for trial. If they return their briefs, that work will have to be duplicated, causing delay and cost.
At the Legal Aid Practitioners Group conference in Manchester, the Legal Aid Agency’s director of commissioning Hugh Barrett said that cuts to VHCC cases are intended to save a total of £19m.
He did not have a figure for the savings expected just from the introducing the cuts for ongoing work in November, but if the entire figure is £19m, that amount within the context of the MoJ budget is likely to be relatively small.
I asked the LAA how many VHCC trials are due to start in January: it is looking into it. But in all likelihood, whatever the number, the cost of having to re-assign the work to other advocates who will have to prepare the cases all over again, will outweigh any projected saving from making the fee cuts.
The government appears ill-prepared for the prospect of senior barristers handing back their cases.
Asked about it at the LAPG conference, Barrett and the MoJ’s Elizabeth Gibby both simply stated that they hoped it would not come to that.
At the select committee this week, Grayling’s response was: ‘I’ll cross that bridge if we get there.”
He said: ‘We have of course given careful thought to what we will do in a number of eventualities.’ But he added: ‘I respect our legal profession and I expect it to behave in the way that one would expect it to behave in pursuing cases accordingly.’
Perhaps Grayling is relying on solicitor higher court advocates to take up the slack. The solicitor’s profession is obviously much larger than the bar and often appears less collegiate.
But the unity of purpose shown by the two professions over recent months appears to be intact. Even if the solicitors were to break ranks, it is not clear on the numbers whether there would be enough to pick up the cases.
According to SRA figures, around 10,000 solicitors registered their intention to join the Quality Assurance Scheme for Advocates. Of those 5%, or 500, registered an intention to join at level 4 – the level at which VHCC work will be.
The LAA has 318 law firms on its VHCC panel and 319 advocates registered to do such cases. It did not have a breakdown of how many of those were barristers or solicitors, but said it is working to build a database.
Whatever the numbers suggest, the government needs to prepare.
Catherine Baksi is a Gazette reporter