Update from the Chairman: legal aid consultation

23 April 2013

Bar Council met on Saturday 20 April, for the first time since the consultation was published. It was attended by all the Circuit Leaders and the Criminal Bar Association's Chairman and Vice-Chairman. I provided the following update:

Up until the end of 2011, the Bar Council had a whole succession of committees working away at the issue of future contracting in its many manifestations. A paper setting out proposals from the Ministry of Justice (MoJ) was expected at the end of 2011, but in fact the matter was postponed and instead timetabled for consideration in autumn 2013. However, a Written Ministerial Statement issued on 5 March announced that it was to be brought forward to April 2013. The consultation paper was published on 9 April and this is the first Bar Council meeting since the paper was published.

It is 160 pages long; everyone is urged to read it if they have not done so already. For many, it will determine how and if they practise. For ease of reference, the Bar Council has published an executive summary; core questions are being asked of the profession to which we must provide a response. Although the proposals are controversial it serves no purpose at all to say that they are too radical to deserve a response. The Bar Council has been given a mandate to engage with the MoJ, and will continue to do so. I cannot promise success but I can promise that a failure to engage will lead to failure overall. I am not "handing anything over" to, or negotiating with, the MoJ, but am continuing to engage in discussions.

One of the headlines is that the MoJ is seeking £44m worth of cuts in the cost of Crown Court advocacy. This is a lot of money, but not in Government terms. The Lord Chancellor said in The Times on 19 April that he will listen to other suggestions for making those savings. One suggestion is the potential for administrative savings; savings that can be made without a reduction in fees.

There are many avenues to consider; advice can be taken on competition, equality and diversity issues and the availability of insurance. However, it is just as important that the thousands of practitioners who work in the system respond to the consultation. They see the unnecessary mentions, the time wasted by exchanging documents in hard copy. Those practitioners are the ones who can make constructive suggestions for savings.

The Bar Council is often criticised for not engaging sufficiently and I am asked why we are not telling the profession what the organisation is doing. Updates have been sent to the profession and posts put up on the website. The consultation has been out for ten days, but in fact the Bar Council's working group was up and running long before the paper was published. However, without knowing what was going to be in it, there was a limit to what work could be undertaken. Now that it is in the public domain, all help, information and suggestions are welcome. As I said in my inaugural speech, the profession is invited to engage and send in suggestions. Information has to come in as well as go out; Bar Council members have a duty to find out from their constituents what they want us to be told.

The Bar Council, CBA and Circuit Leaders are all working very closely together, although each will be submitting separate responses. Stephen Hockman QC is presiding over the Bar Council's group and therefore acting as a bridge between the CBA and the Bar Council.

Whilst I am pleased to see that contracting for Crown Court advocacy is not included in the proposals, it is clear that the effect of tendering for crime lower will be devastating for solicitors. Paul Mendelle QC is looking into that element for the response for the Bar Council; Max Hill QC is doing the same for the CBA. Stephen Hockman QC, Paul Mendelle QC, Max Hill QC and I had a long meeting on 19 April to make sure that all bases would be covered in the responses.

This is a time to be politically and technically shrewd. I will not be drawn into negotiating through social media. I will keep the profession updated and will continue to post reports on the Bar Council website. The Bar Council, CBA and Circuit Leaders are all in contact and sharing information; Bar Council members are encouraged to engage with their constituents and do the same.

The Bar Council's consultation response group is divided into work streams and includes CBA members, Circuit Leaders, members of the Young Bar, Family Bar, Remuneration Committee, clerks, Equality and Diversity Committee and experts in particular areas e.g. fee schemes.

I cannot overemphasise the importance of practitioners responding and not just leaving it to their SBA, Circuit or the Bar Council. The arguments against the proposals must be made in the public interest.

The MoJ is very conscious of at least some unintended consequences, as referenced in paragraph 2.8 of the consultation:

"We are also conscious that any competition which included Crown Court advocacy would effectively amount to 'one case one fee', with the contractor (likely to be the solicitor) deciding how much to pay the advocate. This would likely affect the long-term sustainability of the Bar as an independent referral profession. The Bar is a well-respected part of the legal system in England and Wales, and we will have due regard to the viability of the profession in reaching our final decision on the model for competition".

That is a stated aim. The Bar is therefore entitled to match the consequences of the proposed cuts against that stated aim.

I will provide further updates as soon as I am able to. 

Maura McGowan QC
Chairman of the Bar