QC at Lincoln House Chambers | Tower 12 | Manchester
On 22nd May 2013 the Justice for Sale meeting was held at Friends’ House, Euston. Once upon a time there was another meeting at the same venue. I was struggling to remember – it was a long time ago – then I found a link. The detail of that earlier meeting is reproduced below without comment.
The Extraordinary General Meeting of the Bar was held in Friends’ House, Euston road, London NW1, on Saturday 8 February 1986, commencing at 10.30am. More than 1000 members of the Bar were present.
Robert Alexander, QC, Chairman of the Bar, opened the meeting. Normally, he said, the Attorney-General presided at such meetings; but the Bar Committee had decided that in the present circumstances it would be inappropriate for him to do so. The Vice-Chairman, Peter Scott QC, would therefore take the chair.
Continuing, the Chairman said he had sent recently to all heads of chambers a letter setting out the present state of negotiations — ‘if that is the right word.’ At noon on the previous day he and the Vice-Chairman had been handed a letter from the Lord Chancellor containing an effective offer of 5%; also they had been handed on behalf of the Attorney-General a letter containing no offer at all. There had been no negotiations at all, notwithstanding the willingness of the Bar since September to meet with officials from the Lord Chancellor’s Department at any time. By 3.30pm replies had been sent to the Lord Chancellor’s and the Attorney-General’s letters. (A copy of the correspondence follows.)
Robert Johnson QC, chairman of the Fees and Legal Aid Committee, proposed the first resolution as follows:
‘The Bar deplores the failure of the Government to negotiate with the Bar over Crown Prosecution fees and legal aid fees and the last-minute decision seeking to impose a level of fees which does not have regard to the need to pay fair remuneration and is wholly unacceptable.’
The Bar, he said, had never been in a proper negotiating position and had therefore had to rely on persuasion. But the Bar’s assertions had been treated dismissively due to lack of evidence.
In a letter to the then Chairman of the Bar, the Lord Chancellor had said on 8 September 1982 that he would in the future do all he could to ensure that there was proper time for consultation and discussion.
The proposer quoted some figures taken from the Coopers & Lybrand report. This report demonstrated how far the Bar had fallen behind by providing evidence of actual incomes and expenses. An increase of between 30% and 40% would be needed. If one discounted the extremes and concentrated on the middle 50% of practitioners, an average junior barrister aged 32 to 37 with a criminal practice had an income of £8620 before tax (ranging from £11,880 and £6140), and an average junior aged over 37 an income of £12,860 (ranging between £13,350 and £11,390). (These were figures for the year ending April 1984, the latest available.) These incomes were a disgrace, he said, and he compared them with solicitors’ incomes. For example, in a five to 14 partner firm in London the net profit share per principal was £28,400 (median figure for 1985).
To avoid confrontation, the Bar had chosen to conduct discussions through the agency of Coopers & Lybrand. The Government had had the report since September last year. They had nothing to say. Despite repeated invitations, it was not until 17 December that they had a preliminary meeting with Coopers & Lybrand: it was agreed then to hold another meeting after Christmas. No further meeting had been held.
The present general meeting had been arranged for 8 February because the law officers had anticipated that the parliamentary procedures would be completed by then in order to bring the increases into effect on 1 April. However, after a delay of five months an offer was made at a time which was a week after the necessary negotiations were to have been concluded. It came in a letter which was given to the leaders of the profession two hours before it was released to the press. It was too late to be considered by the Bar Committee and too late to be circulated in advance of the meeting.
Deliberately the Government has tried to prevent discussion, he said. This was a despicable way to treat anyone. ‘Members of the Bar, we have achieved nothing, we have been treated with contempt.’ (Standing ovation).
Gilbert Gray QC, Leader of the North Eastern Circuit, seconded the motion. The case put to the Government, he said, had been carefully researched, closely reasoned the professionally presented. It had been disdainfully rejected at high noon.
On being put to the vote, the resolution was carried unanimously and with loud acclamation.
The Chairman of the Bar then proposed the second resolution, as follows:
‘The Bar endorses the action recommended by the Bar Committee, namely: (i) The Bar Committee is authorised to take such action as is deemed appropriate to influence the Government in these negotiations. (ii) Until an acceptable fee structure is agreed, members of the Bar should exercise their right to require that the fee for all Crown Prosecution Service briefs be agreed before acceptance of that brief. (iii) Members of the Bar be made aware of their right to refuse any prosecution brief for which a reasonable fee has not been agreed.’
The present claim, he said, might settle the fees for the Criminal Bar for a generation. It was of the greatest importance in upholding the rule of law. The existence of an independent legal profession was a central necessity to the issue of law and order by which the Government rightly set so much store; and this was recognised most recently by the Roskill report. The Government had welcomed that report enthusiastically and indicated that they intended to adopt many of its proposals. But there was one proposal on which they had been, until yesterday, notably silent. The report stressed that skills must be properly paid for. The Bar’s claim was the first test of the Government’s commitment, and so far they had wholly failed to meet it.
The Benson Commission had recommended that there should be an independent advisory committee on fees. But the Government had said that they preferred direct negotiations with the profession. But they had declined to negotiate.
Industrial action might now be under consideration if the Bar were not a profession with its traditions of public responsibility. It was therefore ruled out, and it was for that reason that the Bar Committee considered that the Bar should insist henceforth on pre-marked briefs. If the fee offered seemed unreasonble, the individual had the right to decline acceptance, without impropriety.
On receipt of the Lord Chancellor’s letter, the Bar committee had taken legal advice and had decided that the Lord Chancellor had a statutory duty to pay fair remuneration. That was a ground upon which one could challenge his decision in the courts. Recent decision had also made it plain that where a body had an expectation of being consulted, there was a ground of complaint if there were no consultation.
‘We believe that the Lord Chancellor has broken the rules of fair dealing and good administration.’
In his letter, the Lord Chancellor had suggested that his officials should have a meeting with Coopers & Lybrand. This had been rejected by the Bar Committee.
‘We wll act in accordance with the law and through the law, and we seek your authority to act.’
(Standing ovation). Michael Hill QC, Chairman of the Criminal Bar Associatin, seconded the motion.
After a number of speeches from the floor, the resolution was put to the vote and carried with two votes against.
My Dear Bob;
I have now been able to consider Coopers & Lybrand’s report and recommendations. As you know, officials have met with Coopers & Lybrand to discuss factual and technical aspects of their report.
I have to tell you that I have yet to be convinced that the main recommendations of the consultants’ report — principally that an increase of between 30-40% in criminal legal aid fees is required to give fair and reasonable remuneration — can be justified.
I am not persuaded that the level of median earnings for barristers of 10-15 years call specialisingin crime which the consultants found from their survey of actual earnings demonstrates that current fee-levels are too low. As one might except, their survey showed a wide variation in earnings. In any event, fees cannot be set at a level which would provide a substantial income for a barrister whose time may not be fully employed.
I accept, of course, that the consultants base their recommendations o n a model designed to show the earnings which could be achieved by counsel fully employed on legal aid work at different fee levels. But I am not yet convinced that a number of the key assumptions in the model are realistic.
One of the functions of the model is to establish the number of cases a barrister can do each year. this depends on how long each type of case will take in court and how long it will have taken to prepare. I do not at the moment accept the assumptions used for the time cases take in court. As an example, my Department’s figure for the average hearing time for guilty pleas in the second quarter of 1985 was 0.7 hours. The consultants have assumed that guilty pleas take a minimum of two hours. If so they take a good deal longer than they did in my time. Nor can I accept the preparation times assumed. Again by way of example the consultants have assumed an average preparation time for appeals against sentence of five hours, which compares with the average of about half an hour which our figures show appeals against sentence take in court. This also conflicts with my own experience at the Bar
These are example only. There are a number of other assumptions which I find myself unable to accept. More fundamentally, the report seems to make no attempt to assess whether the range of work in the model was appropriate to counsel of any particular standing. Nor would I accept that the fact that lawyers in the civil service, or for that matter employed in the private sector, are paid a particular salary is itself justification for setting fee levels so as to achieve comparable earnings.
In the regulations I am required by statute to have regard to the principle of allowing fair remuneration according to the work actually and reasonably done. In reaching my decision, I cannot ignore the cost of meeting the claim, which in this case would be substantial. That is why, before accepting the claim, I have had to scrutinise it with great care. As I have said, I remain to be convinced, on the information before me, that the rates being paid in the current financial year do not represent fair and reasonable remuneration.
Nevertheless, I accept of course that these rates will need to be adjusted for next year and I am therefore proposing to bring forward regulations based on a routine uprating calculated according to the same formula as in previous years. This will allow for a 5% increase overall.
My officials will be in touch with Coopers & Lybrand, who I understand will be acting on your behalf, to discuss the draft regulations in detail.
I recognise that this will be disappointing to you. I understand and share your concern about the need to keep fees at a level which will continue to attract competent people to the Criminal Bar. I hope that it may be possible to find a way forward. I shall therfore ask my officials to give further thought to how this might be achieved, and then to enter into discussions with your people.
In view of the public interest in this matter, I propose to release this letter to the press.
The Rt Hon Lord Hailsham of St Marylebone.
Thank you for your letter of 7 February.
Its comments are not merely, as you anticipate, disappointing. They are deeply disturbing.
There have not, as some might think from your letter, been effective discussions between Coopers & Lybrand and your Department. Coopers & Lybrand were in close contact during the year in which their report was being prepared. It was submitted in September. They held themselves in readiness for officials to test its validity in as much detail as they wished. Apart from preliminary comments, and one exploratory meeting on 17 December, the Government has wholly failed to avail itself of this opportunity.
I do not seek in this letter therefore to answer the specific criticisms raised. They appear to be based either on misunderstandings or on relatively minor points. I regret that it is a selective and unbalanced approach to the report.
You do not, however, suggest that even if these points were valid, they would reduce the claim significantly.
We are agreed that you are required by statute to have regard to the principle to allowing fair remuneration according to the work actually and reasonably done. Nowhere, however, do you suggest that any criticisms you have of the Coopers & Lybrand report would in any way justify selection of the figure of 5%. This figure is, as you say, a routine uprating based on an unjustifiable formula which does not appear to relate to fair remuneration. Nor does it take into account your express concern that the quality of new entrants to the professions should be preserved.
You suggest that your own experience at the Bar supports some of your comments. My own experience, which includes visits to major centres on each of the circuits since October and much contact with the Bar in London, wholly supports the view of the consultants that fair remuneration is not being paid and hardship is being caused.
The profession remains, as I have indicated, keen to secure no more than fair remuneration. The Royal Commission on Legal Services recommended strongly that there should be an advisory committee, such as exists for other sectors of public employment, to advise the profession and the Government on what is fair. The Government’s response to this proposal was that it preferred direct negotiations with the profession.
We now have a situation where there has been no proper negotiation, nor is there any objective body seeking to secure the public interest by ensuring that the profession is properly paid.
The Bar finds this deplorable, and as I have previously indicated, is wholly willing that an independent body should consider the validity of its case. Your letter is silent on this suggestion, and I am disappointed that the Government does not appear as willing as we are to submit the merits of our case to such detached and impartial scrutiny.
The study which we have put before you has taken a year to prepare. It has been with the Government for almost five months. The Bar has committed a good deal of the resources of its professional organisation to the preparation of the report. I have to say that the whole Bar will consider the reply as a very inadequate response.
We also hope there may be a way forward. This cannot, however, start from the basis of a refusal of negotiations, and the imposition of an unjustifiably low base figure. The profession can reasonably expect proper negotiations as a matter of fair dealing. I would hope that upon reconsideration you would agree.
I shall also, in view of the public interest in this matter, release this letter to the press.
Chairman of the Bar.
The Solicitor-General and I have been considering the arrangements for the payment of fees to counsel instructed by the Crown Prosecution Service.
It is my intention from 1 October, when the Crown Prosecution Service is fully established throughout England and Wales, to adopt a s ystem based primarily on pre-negotiated fees. However, from 1 April, when the Service commences operation in the Metropolitan counties, the Lord Chancellor and I intend that Crown Court officers of the Lord Chancellor’s Department will continue to tax and pay the fees of counsel instructed by the new Service. The advantage of this to us all is that it provides further opportunity to discuss and consider the arrangements which will be required for the prenegotiation of fees for Crown Prosecution Service work.
However, the Bar may need to consider more urgently prosecution counsel’s fees for magistrates’ courts work. You will know that the new Service will need to engage private practitioners in the magistrates’ court to supplement its own resources, and I am sure it is desirable that the Bar should have a fair share of this work. The arrangements for prosecution in the magistrates’ courts will involve ‘whole-list’ work, and private practitioners engaged by the Service will be expected to undertake this. The only sensible system of remuneration for this work would be some form of sessional fees. I ought to tell you that under the Crown Prosecution Service pilot scheme solicitors have agreed as an experiment to undertake work on this basis. Thus you may think it essential that sessional fees are agreed with the Bar in time for 1 April.
In view of the public interest in this matter, I propose to release this letter to the press.
Thank you for your letter of 6 February.
It has always been accepted between us that negotiations for fees for the Crown Prosecution Service ought to be concluded by the end of January. With this in mind, I fixed, with the full knowledge of your Department, the EGM of the Bar which takes place tomorrow.
In fact, no negotiations of any kind have taken place between Coopers & Lybrand and your Department. After the exploratory meeting on 17 December, officials called off further meetings despite the continued readiness of our advisers to discuss the report with them. Even now, your letter contains no offer of any kind whatsoever. Whatever happens at the meeting tomorrow, I am keen that discussions should take place without any further delay. I would like these to be between yourself, the Vice-chairman of the Bar, the chairman of the Negotiating Committee and myself. It is wholly inappropriate that there should have been no suggestion whatsoever as to the appropriate scale to be in should from the time when the New Crown Prosecution Serviced first comes into operation at the beginning of april.
I am also more than disappointed that you have not responded to my suggestion that there should be an advisory committee to consider objectively the right levels of fair remuneration, which would ensure that we maintain the standards of entrant to the profession. We are fully prepared to submit our claim to such an independent scrutiny. Since the Government states that it wishes to pay fair renumeration, we find it difficult to accept that it is reluctant to do the same.
On sessional fees, we have always made our position plain. In this, as in other areas, the Bar is most keen to make any contribution to cost-effectiveness which is consistent with the fair administration of justice. The Bar agrees that sessional fees would be a fair form of remuneration, although it obviously considers that it should be linked with agreement on fair remuneration.
As you say, there is public interest in this issue, and I shall therefore also release this letter to the press.
Chairman of the Bar.