A Glimmer of Hope

My last blog could have been called ‘Batten down the hatches.’ It sought a limited way through the very worst scenario of no respite from the proposed cuts and the very serious effect that will have. If all fails, I argue we must consider a Chambers minimum wage by pooling our incomes or part of them. I believe that is the rock bottom position, which would save some but sadly not all careers. However uncomfortable and unfamiliar road that would be, it does address partly the prospect of widespread desperation and, let us be blunt, professional poverty.

That is the bottom of the pit. But are there yet things we could be doing to prevent that happening?

This week a very serious mistake was made before the Justice Committee. The Lord Chancellor, plainly badly briefed, estimated the fee for a silk doing a 60 day case to be £135,000. The accurate figure pointed out by our excellent Chairman was just under £20,000.

Now I will avoid obvious points about the scale of the error. The more interesting issue for me is whether such a misreading reflects a wide scale public misunderstanding of our real fees in real cases, both now and after the full cuts take place.

At which point I want to wind back to a suggestion in an earlier blog. We need to spell out with real life examples exactly what we are paid. And we should add real life comparisons with other professions and occupations over a comparable period of time. So for example at the top of the chart the daily rate of the top civil servant in the Ministry of Justice. At the bottom the starting rate of a new young teacher. In between, a consultant NHS surgeon doing no private work and similarly a GP. The examples we give of our our cases must be authentic, collected for example by the Circuits and the CBA.

Now the interesting bit. We need a really attractive document setting out comparisons. We might even consider a broadsheet format mimicking the Daily Mail.

The point is that, although I cannot accept that Direct Action will work or should be our route, I absolutely believe that the fight must go on with every legitimate tactic we can employ. To that end I shall continue to offer my own small suggestions to fight the good fight.

Nigel Pascoe QC

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One thought on “A Glimmer of Hope

  1. NPQC, you set out an interesting analysis and some helpful thoughts.

    It is regrettable that the bar has allowed the question of proper remuneration to be left un-argued for to long. It is only now when total devastation of the publicly funded bar is threatened that we are motivated to respond in a coordinated fashion. The government and other observers might reasonably infer from this that it is only obliteration that we object to – some degree of further trimming might somehow be possible or acceptable.

    The bar is also at a disadvantage in supposing that its audience for its well reasoned arguments understand the points being made, or be minded to respond to them fairly. No one except the bar really cares what barristers are paid (even if they should) and even that ignores the substantial minority who would be very happy to see anyone earning more than they do “brought down a peg or two”. In the wider world and especially among politicians, the collegiate and independently minded behaviour of the bar is a cause of suspicion rather than admiration. Arguments in favour of our profession’s preservation will therefore not gain any traction without a full appreciation by the public of what will be lost : I fear we are a very long way from achieving that.

    The destruction of a public funded criminal bar is certain to result in long-term financial losses that will greatly outweigh any short-term saving, even before any of the social or moral arguments are taken into account.

    Any sort of protest action by members of the bar will not receive sympathy from the bulk of the public. If that point can be agreed, then we might reasonably worry less about a sympathetic reception and concentrate on what action will achieve a practical result, regardless of whether we carry the good wishes of the public with us. What will be essential is to have the support of the rest of the bar and the solicitors profession : without that solidarity, the government will simply respond by attempting to divide and rule.

    As to the presentation of what might represent proper remuneration, comparisons directly with other professions might tend to imply that conducting the defence or prosecution of individuals in the criminal justice process is a job like any other. It is not.

    As a latecomer to the bar from another profession, I continue to be astonished at the willingness of barristers to work in both public (and some privately funded work) at what seem remarkably low rates of pay.

    In commercial work where it is clear what value a barrister brings to matters, proper remuneration is perhaps easier to gauge – yet criminal work will often require very comparable skills (at least) and energy yet is extremely poorly paid by any measure. On that point many of the promoters of the destruction of legal aid simply do not appreciate that barristers moving away from criminal to private work will often be financially better off – yet the supposition that “lawyers are just in it for the money” (or are a “vested interest” as McNally would have it) often remains unchallenged.

    In order to demonstrate what a parlous state public funding is presently in, even before any further cuts are applied, it might be helpful to have some expert opinion – an independent report for publication – from specialists in the world of accounting and business management, investigating what barristers in criminal practice are worth by reference to the qualification process, the nature of the work involved, the responsibilities placed on the shoulders of the advocate in conducting a case and the conditions in which substantial amounts of exacting labour is called on, often at very short notice.

    Since the best comparator will be barristers in privately funded work, we will at least be able to start our case from the position that legal aid rates are already far too low even before any cuts are applied : if the interests of justice are to be served, then preventing further cuts is only the first step, we shall not stop until barristers in criminal practice are paid fairly.

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