Monday Message 09.01.17
Francis FitzGibbon QC
The whole of today’s Message is about the Consultation Paper.
Given its sometimes unfortunate history with the Bar, we are bound to be sceptical about anything coming from the MOJ and to scrutinise its proposals critically. The new method of determining fees differs greatly from the one we have all become used to. The structure is new. The details are complicated. Some CBA members have commented that they see problems in them. The consultation period gives us all the opportunity to identify them clearly and make a reasoned case for improving the plans. There’s no need to rush to judgment on day 1. Every one wants to get this right.
The ultimate aim of the CBA is to restore to our difficult work the respect and level of remuneration that it deserves. It will take more than a redesign of the payment system to do that – although I think that it is an indispensable first step in that direction.
My own view is that the architecture of the new scheme is a considerable improvement on the ramshackle structure we have now. In the Message that you got on Thursday, I said the scheme deserves a cautious welcome, and I stand by that. Whether all the figures in the boxes are right is a matter for reflection and debate – which we have time for. The fundamental problem for our hardworking members is that the proposals do not recognise that advocacy has been underfunded for far too long.
In an attempt to clear the ground for sensible debate and discussion, I want to clear up some misconceptions that have sprung up about the new scheme.
No one claims it is a panacea. The scheme had to be cost-neutral because no new money was available to increase legal aid rates. That stipulation was a brute fact. We have never conceded that the rates are acceptable. The task was to design a more principled and fairer system within the constraints, which would give a solid platform for further advances.
Overall, there have been no new cuts to the total spend. The Bar, the solicitors’ representatives and MOJ all agreed that the distribution of the money under the old scheme was unprincipled and could be made more equitable. The old scheme had its swings and roundabouts, and so does this one, inevitably.
The cardinal principle for reform was that fees should reward the work that advocates really do. The cost-neutrality constraint has also been clear from the outset. Even so, the unsatisfactory rates of pay are plain for all to see. This is far from the end of the story.
Which leads to the first misconception – that senior barristers will ‘get a pay hike at the expense of juniors’, as the Law Society and others have chosen to put it. Not true. The graphs on pp 46-47 0f the document show that brief fees and refreshers rise proportionately as between Silks and juniors. One of the aims of the exercise was to restore career progression, so that as people move into more serious work, they will be paid more. There is no concession that junior work is paid adequately. One of the intentions for the reformed structure, nevertheless, is to begin remedying the dire situation in which many advocates with family responsibilities – mainly women – see their careers stagnating, leave the profession, and cannot realistically return after periods of absence. We don’t do well on diversity but this is a step in the right direction.
The proposition that the Bar leaders have somehow arranged to shaft the juniors for their own advantage is nonsense. People spreading this kind of thing should get their facts straight. We do not live in a post-truth, fake news world here.
The 10% increase in the Silks’ fee for murders is no ‘hike’. It partly restores an earlier cut that was unjustified in the first place, at least if one recognises that murder cases are particularly difficult and demanding and should be properly paid. It represents about 1.2% of the budget. That cut was not isolated: statistical analysis of the Class A work (the most serious cases) showed that while volumes have declined over the last four years, the value of these cases has declined more sharply. If you accept the premise that more serious cases should be better remunerated, then it follows that the decision to distribute funds to those that were under-remunerated is sound. Any benefit to Silks – and to juniors in these cases – is the consequence of restoring their proper relativities as between different groups of offences.
In fact, the total spend on homicide offences goes up by 14%, benefitting the juniors as much as the leaders. And it’s not as if the streets are paved with Silk certificates, either. If you think there should be no differential between Silks and juniors, that’s another whole story. None of the participants in the discussions advocated it. On the likely basis that most murders will fall into the lowest category (1.3), the brief fee for the Silk (if a certificate is granted) will be £5,100 on the brief and refreshers at £1,150: less on the brief than a paper-heavy case would bring in now. Compare that with CPS Scheme C: £6,750 on the brief (with a small witness uplift and more for a 5000+ page count) with £1240 refreshers.
In 2014-15, QC fees were about 15% of the total spend. Under the new scheme, they are expected to be 13%. The scheme is targeted at the type of case, not the type of advocate. The money available for sex cases has been increased as well. Whether it’s a good thing or not, female advocates tend to be briefed more in sex cases than men. If fees in these cases go up, so will women’s earnings. That should help with recruitment and retention of talented women lawyers. It is worth reading the Equality Statement that accompanies the main consultation paper.
Across the board there will be winners and losers among QCs and juniors. Outcomes will depend on the mix of cases they do. Leading and led juniors do well across the board. The most prolific winners will be juniors who mix the roles of being led and acting alone. The scheme favours trial work.
Next misconception: the new scheme disadvantages the young Bar. Members of the young criminal Bar took part throughout the long process that led up to the consultation. The Young Barristers’ Committee of the Bar Council have given the proposals their support: see their joint statement. The scheme has several significant advantages for work that typically falls to more junior advocates, including separate payments in each case for:
- the PTPH
- four other ancillary hearings
The second day of a trial is now paid. Payment for ineffective trials is also better. The time that we currently give the MOJ for free will be paid for. These are gains, for now and the future, and should not be dismissed. If anything disadvantages the young Bar, it is the failure by successive governments to fund legal aid properly. These structural reforms go some way to mitigating the problem, but the baseline for funding is still too low.
The Law Society’s Intervention
It was surprising that the Law Society purported to take up the cudgels for the young Bar, in its instant reaction to the announcement. Without wishing to be rude to our solicitor colleagues, there is no doubt that the greatest threat to younger barristers’ livelihoods and futures has come from solicitor advocates who have taken an increasing share of what used to be the Bar’s work (and the AGFS budget), and they will probably continue to do so. That’s not a complaint but a statement of fact. These reforms do not affect litigator fees. Another misconception: that this is a barrister’s scheme. It’s not. It’s a scheme for all advocates and does not differentiate between solicitors and barristers. The solicitors’ representative bodies were fully engaged until December when the Law Society chose to walk away from the discussions.
Guilty Pleas and Cracks
For reasons that are unclear, fees for guilty pleas have been cut less savagely than others in recent years. The original Carter settlement privileged guilty pleas and cracks. The value of cracks has gone down in subsequent rounds of cuts, but pleas have been hit less hard. Advocates who rely on – or, worse, harvest – guilty pleas and cracked trials will do relatively badly under the new scheme. But a practice (and an income) that is over-reliant on this kind of case is not the practice of a fully functioning advocate. You will remember the rightful objections to the concept of the ‘plea-only advocate’, in another context. To my mind, a system of payments that fosters a culture of plea-and-crack-only advocates is not a good one.
It’s true that the demise of the page count means the end of the ‘magic disc’ and less money for brief fees in some cases. It may surprise you (as it has me) that PPE is less important and far more random in its effect than we have come to think. Statistical work carried on behalf of the Bar showed that in 75% of cases, including guilty pleas, page uplifts accounted for less than 17% of the total fee. In 75% of trials, they accounted for less than 10%. On the other hand, a small number of guilty pleas generated uplifts worth 90% of the total fee.
Who can honestly say that payment by pages in the electronic age is a principled and sensible use of public money? You can gut a multi-page phone schedule in minutes with electronic search tools. Some witness statements contain no more than two or three lines of inconsequential text. Of course it’s nice to have the money, but it’s worthwhile stepping back and thinking about whether it is fair to distribute it in such a clumsy way. Using the nature of the case to determine the fee is a sounder principle than random dollops of money in cases that happen to have lots of ‘pages’ in them.
On the other hand, refreshers will go up and special preparation is retained. The more detailed categorization of cases produces higher fees for the more serious ones. If there’s a case to be made for extending the use of page counts beyond what is envisaged, and if the categorization needs adjusting and the fees assigned to particular category are wrong, now is the time to say so.
I understand the anxiety that people feel when comparing individual cases under the present and the new schemes, because some cases will pay less. But individual examples, or a small number of them, may not give an accurate picture. A true comparison would need analysis of a larger number of cases of different kinds over a period of time, which may be difficult to forecast in advance. Some will be better, some worse. The scheme was not developed in order to reduce incomes for the more junior advocates, and should not have that effect. Overall it is expected to be roughly level for most standard cases (making allowance for refreshers and ‘unbundled’ PTPHs etc) and higher as they get more serious.
Another important aspect of this is public perception. A scheme that is principled and rational – as I believe the proposed scheme to be, in its fundamentals – will command more respect than an obsolete one. The same applies to the terms in which debate is conducted.
At the risk of being mistaken for a creature of the ‘Establishment’, I will say that MOJ have been willing to be persuaded by soundly reasoned arguments during the long and arduous process that led up to the launch of the Consultation. I have no reason to think they’ll stop now.
If you’ve got to the end of this, thank you. It won’t be the last time the fee reform comes up in Monday Messages. Now please keep reading the Consultation Paper and the supporting documents, and give your individual responses by 2 March. I can’t promise to respond individually to everyone who writes in, but please do write because your observations will inform the CBA’s response to the Consultation, as well as your individual ones.