Evidence submitted by the Bar Council
(LAR 78)
INTRODUCTION AND
EXECUTIVE SUMMARY
1. It is understood that the Committee will
receive a copy of the Bar Council's Response to the DCA Consultation
Paper (which will be provided on 12 October 2006). This response,
therefore, highlights the main points about which the Bar Council
is concerned, and those that are of particular relevance to the
Committee's terms of reference.
2. This response focuses on the main elements
of Lord Carter's Report (the "Report") that are relevant
to the Bar. The Bar welcomes some aspects of the Report, and is
particularly keen to ensure that the recommended changes to the
graduated fee rates payable for Crown Court advocacy are implemented
as soon as possible, and certainly no later than April 2007.
3. The Bar Council would wish to emphasise
that it is committed to taking all possible steps towards ensuring
that the highest possible quality advocacy services are available
to the public. It, therefore, strongly supports the emphasis in
the Report on the maintenance of quality.
4. The Bar Council suggests below (as has
been accepted by Ministers) that there needs to be a full diversity
impact assessment in respect of Lord Carter's proposals. This
need not, however, delay the implementation of either the revised
advocacy graduated fee scheme ("RAGFS") or a litigators'
graduated fee scheme ("LGFS").
5. The Bar Council takes the clear view
that an appropriate system of graduated fees for crown court litigators
is desirable, but makes no comment on the detail of the recommended
scheme. It is not suggested that either the RAGFS or a LGFS have
adverse diversity impacts. In these circumstances, their implementation
can be confidently undertaken in advance of the completion of
the required full diversity impact assessment.
6. The Bar Council does, however, take the
view that the introduction of price competitive tendering ("PCT")
for advocacy fees is (apart from its diversity implications) neither
desirable nor necessary. PCT will reduce the quality of advocacy,
and will threaten the existence of an independent referral profession
of advocates. It will, therefore, operate contrary to the public
interest.
7. Moreover, PCT for advocacy fees is not
necessary to control costs. The advocacy graduated fee scheme
has proved extremely effective over the last 10 years in limiting
and controlling advocacy costs. High expenditure was caused in
the past by excessive ex post facto taxation of fees in some longer
cases, and high VHCC (very high cost cases) costs. Ex post facto
taxation is now rare, and will no longer exist once the new arrangements
come into force. VHCCs are being radically reformed.
8. Most importantly, however, the Bar Council
suggests that no decision should be taken as to the harmonisation
of the RAGFS and the LGFS, or as to the introduction of PCT for
advocacy or litigators' fees, until the new schemes have been
introduced and operated for a few years, and their effects in
terms of cost and efficiency have been fully evaluated. There
will need to be compelling reasons for the introduction of PCT,
if, in the event, it needs to be considered at all. If, as the
Bar Council suspects, the new RAGFS and LGFS will properly control
criminal defence costs, such a change will be counter-productive
and unnecessary. Neither PCT nor the harmonisation of the two
schemes should be considered until the new schemes have properly
bedded down. That will not be before 2010 at the earliest. At
that stage, a full consultation process will, in any event, be
required in the light of circumstances then prevailing.
BACKGROUND TO
THE REVISED
ADVOCACY GRADUATED
FEE SCHEME
("RAGFS")
9. The Bar is in a rather different position
to solicitors in relation to Crown Court work. In 1997, the Government
introduced a graduated fee structure (the "GFS") to
remunerate the shorter 1-10 day cases. That meant that fees were
no longer assessed after the event (so-called "ex post facto
taxation"), resulting in predictable expenditure. In 2001,
graduated fees were extended to cover 11-25 day cases, and in
2004, they were further extended to include 26-40 day cases. Cracked
trials and guilty pleas were moved to a graduated fee arrangement
in 2005. That left only 40+ days cases to be covered by the
VHCC (very high cost cases) structure.
10. Although there are still a few ex post
facto taxations within the system, these changes have resulted
in an overall reduction in payments to barristers, and in significant
cost control.
11. Within the Carter process, the Bar Council
argued for reform of the GFS, because the rates had not been increased
for the shortest cases, undertaken mostly by the most junior barristers,
for nearly 10 years. As a result, the fees of the junior barristers
had been savagely reduced by inflation. The Bar Council campaigned
for a redistribution of fees from the top of the profession to
the bottom. This was publicly supported by the Lord Chancellor
and many others.
12. Lord Carter accepted that inflation
increases were warranted, and recommended the new rates on that
basis, increasing GFS rates by an average of 16% across the board
(the biggest increases, of course, for the 1-10 day cases, and
almost nothing for the longer cases). This achieves the redistribution
from the top to the bottom.
13. The increased rates that Lord Carter
has recommended (and the Bar Council accepts should be implemented
with only a very few minor changes having no effect on the overall
budget) do not result in additional spending as annex 6.2 to the
Report demonstrates. The budget for Crown Court advocacy spend
is reducing, despite the suggested increases. This is because
ex post facto taxation is being eradicated. It was this (together
with an inappropriate VHCC system) that caused excess spending
in the past. It cannot and will not be repeated in the future
under the RAGFS.
14. Solicitor litigators in the Crown Court,
on the other hand, have not been paid up until now on any fixed
or graduated fee system. The budget for the payment of litigators'
fees is reduced because of the introduction of a new LGFS. As
we have said above, however, the Bar Council makes no detailed
comment on the proposed LGFS.
SUMMARY OF
CONTENTS
15. This response is divided into the following
sections:
(1) The diversity implications of Lord Carter's
proposals for both the legal profession and the public.
(2) The suggestion that there may be a move
towards a single graduated fee scheme for advocates and litigators
after 2009.
(3) The suggestion that price competition
may be introduced for Crown Court advocates' fees after 2009.
(4) The importance of maintaining a high
quality independent referral profession of advocates.
(5) The proposals for family legal aid.
(6) The timetable for implementation suggested
in Lord Carter's Report.
(7) Summary of the benefits and detriments
of implementation.
Section 1: The diversity implications of Lord
Carter's proposals for both the legal profession and the public
1A. Diversity introduction
16. The Bar Council is concerned about the
combined effect of a minimum contract threshold (suggested to
be £50,000) and price competitive tendering ("PCT").
We believe that the effect of this combination in many urban areas
could be to exclude suppliers unable to deliver services to a
much higher value. If this were the case, BME firms in many local
areas would be quickly squeezed out of the market. This would
have an adverse knock-on effect on BME barristers.
17. This section of the paper is divided
into the following sections:
(1) The need for a full diversity impact
assessment.
(2) The diversity problems of the £50,000
threshold and PCT.
(3) Gender and disability.
1B. The need for a full diversity impact assessment
18. Lord Carter did not undertake a new
diversity impact assessment based on his proposals, before he
published his final report. Instead, he relied on the MDA report
dealing with different (albeit somewhat similar proposals) in
relation to Magistrates' Court work. The Bar Council believes
that a full diversity impact assessment is necessary before the
police station contract proposals, the minimum contract threshold
and PCT proposals contained in Lord Carter's report are introduced.
It may be, for example, that PCT could work without adverse effects
on BME firms in some local areas, but not in others. This will
not be known without a full impact assessment.
19. The Bar Council, therefore, welcomes
Vera Baird QC MP's commitment (during her nationwide meetings
in August 2006) to conduct such a full diversity impact assessment.
This was reiterated by the LSC in its nationwide September meetings.
20. It is crucial that the impact assessment
starts from scratch, and researches the likely impact of the specific
proposals in Lord Carter's final report. Detailed field-work will
be necessary. It may be hoped, however, that there will be time
to undertake such a study without disrupting the recommended implementation
timetable.
1C. The diversity problems associated with the
minimum contract threshold and PCT
21. Lord Carter's recommendations may involve
breaches of sections 19B and 71 of the Race Relations Act 1976
("RRA").
22. Section 19B prevents any public authority
carrying out any of its functions from doing any act which constitutes
discrimination. That prohibition prevents direct and indirect
discrimination.
23. Section 71 of the RRA, as substituted
with Sections 71A-E with effect from 2001 by the Race Relations
(Amendment) Act 2000, imposes duties on certain public authorities
(including the DCA and the LSC) to have due regard to the need
to eliminate unlawful discrimination, to promote equality of opportunity,
and to promote good relations between persons of different racial
groups.
24. The Commission for Racial Equality has
published a Code of Practice (effective 30 May 2002) and detailed
guidance on the impact of the section 71 duty on public procurement.
25. Paragraph 3.2 of the Code identifies
four principles relevant to the general duty to promote race equality:
promoting race equality is obligatory, the duty must be met in
all relevant functions, the weight given should be proportionate
to the relevance, and all the elements of the duty are complementary.
26. Paragraph 3.16 of the Code lists five
questions that the body may find it useful to consider in assessing
the effect of a policy:
(1) Does the policy put some racial groups
at a disadvantage?
(2) Could the policy have an adverse impact
on relations between different racial groups?
(3) Is the adverse impact (if any) avoidable?
Could it be justified by the aims and importance of the policy
or function? Are there other ways in which the aims could be achieved
without causing an adverse impact on some racial groups?
(4) Could the adverse impact be reduced by
taking particular measures?
(5) Is further research or consultation necessary?
27. The Bar Council does not believe that
implementation of the Report would result in direct discrimination.
INDIRECT DISCRIMINATION
28. Indirect discrimination is concerned
with provisions, criteria or practices, which disadvantage certain
groups defined by reference to ethnicity, where those provisions,
criteria or practices are not objectively justifiable. Objective
justification will only be demonstrated where the impugned provision,
criterion or practice meets a legitimate aim and is proportionate.
29. Lord Carter reached the view that there
was no indirect discrimination.
30. The Bar Council's view is that PCT,
when taken together with the minimum contract threshold, may have
the effect of reducing the number of small firms able to compete
successfully for contracts, and may thus indirectly disadvantage
BME firms.
31. The proper pool for analysing the effect
on BME solicitors is the regional, rather than the national, pool.
There are different conditions regionally, as opposed to nationally,
and Lord Carter has recognised that a one size fits all national
approach is inappropriate. Analysed regionally, BME firms in certain
regions are placed at a disadvantage.
32. The Report gives two reasons for justifying
indirect discrimination (chapter 5, paragraph 91, page 114):
(1) The need to control legal aid spending.
(2) To promote efficiency of service in the
public interest.
33. These reasons, though valid justifications
for PCT in general, do not, in the Bar Council's opinion, meet
the test for justification in specific areas where minority firms
may be particularly affected. The problem may, therefore, be ameliorated
by eliminating minimum contract thresholds and PCT in specific
areas. Such action could not be expected to have any serious impact
on the achievement nationally of either the control of legal aid
spending or the promotion of efficiency. If minimum contract thresholds
and PCT are introduced in areas where minority firms will be disproportionately
affected, there may, therefore, be unlawful indirect discrimination.
34. BME clients may also be indirectly prejudiced
by the proposals.
35. Lord Carter says that is that there
is currently an over-supply of legal aid contractors, and that
even if there is a reduction in BME firms, there will be no corresponding
reduction in BME solicitors, which will in turn mean that BME
clients are just as free or likely to approach BME solicitors
in non-BME firms and receive the same standard of service. Whether
such an answer is correct depends on whether there is a correlation
between BME firms and clients, and if there is, why this is so.
36. Lord Carter says in chapter 5, paragraph
79, page 109 that, while there is a demonstrable link between
use of BME firms by BME clients, there is also a strong connection
between the percentage of BME firms and the make-up of local BME
populations across most regions, which could suggest that the
correlation may be as much about location as preference.
37. By contrast, MDA (who conducted an impact
assessment on proposed changes to Magistrates' Courts' fees),
based on the data available to them from the Commission regarding
civil legal aid, and based also on their limited evidence from
questionnaires, said that BME clients are more likely to choose
BME firms, for reasons related to language, culture, race and
community networks as well as geographical locations (page 65).
38. This tends to suggest that the MDA conclusions
are more likely to be correct than the conclusions by Lord Carter,
since Lord Carter advances no detailed reasons why questions of
language, culture, race and community networks are unlikely to
be relevant factors in determining choice by BME clients of BME
firms. Furthermore, as MDA suggests, if numbers of BME firms are
reduced, and assuming choice of BME firm by BME clients is not
based solely on geographical proximity, there may be a loss of
confidence by BME clients in the legal and criminal justice system.
39. BME barristers may also be indirectly
discriminated against. There is a strong connection and interdependence
between BME solicitors and BME barristers. The two sides of the
profession are closely aligned and mutually supportive, and that
it is therefore clear that an adverse impact upon the solicitors'
profession will equally mean an adverse impact upon barristers.
40. The Bar Council is committed to a diverse
profession, and a lack of BME barristers will reduce the quality
of the Bar, and affect its ability to provide a full range of
high quality legal services. It will also reduce the pool of BME
candidates available for judicial office.
1E. Gender and disability
41. With effect from 6 April 2007 the LSC
and the DCA will come under a general duty to promote gender equality,[33]
in similar terms to the obligation to promote race equality. There
will also be specific duties similar to the specific race duties,
and they will need to have a gender equality scheme in place.
The EOC Code is in draft for consultation.
42. With effect from 4 December 2006, the
LSC and the DCA will come under a general duty to promote disability
equality.[34]
There are also specific duties similar to the specific race duties.
They should also have a disability equality scheme in place. The
Disability Rights Commission has published a Code on the general
and specific duties.
43. As with the relationship between Section
19B and Section 71 of the RRA, the key difference between Sections
21A of the SDA and 21B of the DDA, and Sections 76A of the SDA
and 49A of the DDA, is that the former are essentially negative
duties ie there is a duty not to discriminate, whereas the latter
are positive duties ie there is a positive duty to promote equality.
The latter duties will require promotion of equality both in relation
to past and prospective acts.
44. It would appear from the contents of
Lord Carter's Report, the research commissioned by the LSC, and
the contents of the draft impact assessment produced by the LSC
and the DCA, that no consideration has been given to the gender
disability equality duties that are shortly to come into force.
45. The Bar Council believes that there
needs to be a full impact assessment as regards female and disabled
solicitors, as well as regards firms owned by women or those with
disabilities. In the absence of such assessments, the LSC and
the DCA will be unable to comply with the forthcoming gender and
disability equality duties.
SECTION 2: THE
SUGGESTION THAT
THERE MAY
BE A
MOVE TOWARDS
A SINGLE
GRADUATED FEE
SCHEME FOR
ADVOCATES AND
LITIGATORS AFTER
2009
46. Recommendation 4.16 of The Report provides
that the DCA/LSC should consider harmonising the separate litigation
and advocacy graduated fees schemes into a single graduated fee
for all defence services in the Crown Court, for implementation
as soon as possible after 2009, when the market has stabilised
and legal services reforms allow for the creation of alternative
business structures.
47. The Bar Council suggests that it is
premature to decide whether (and, if so, how) the separate litigation
and advocacy schemes should be harmonised at this stage. The litigation
scheme is yet to be introduced, yet alone to have settled down
so that the efficacy of its operation can be evaluated. Similarly,
the new RAGFS has yet to be introduced and evaluated.
48. Moreover, the Legal Services Bill has
not yet been finalised, let alone enacted. It will inevitably
take some time after the Legal Services Bill becomes law for the
regulatory framework for the establishment of alternative business
structures ("ABSs") to be put in place. Thereafter,
it will take a further period for ABSs to be formed and for their
performance to be evaluated.
49. In these circumstances, it is impossible
now to be certain that it will be desirable to amalgamate the
two graduated fee schemes, or what the effects would be if they
were amalgamated. It is likely, for example, that, by 2009, that
each of the two schemes will be delivering predictable costs at
an acceptable level of quality and price. If that were the case,
it might be risky and undesirable to change an effective system
in a way envisaged some years ahead. At the very least, further
consultation with stakeholders will be required in 2009 to ensure
that the changes proposed are likely to enhance (rather than reduce)
quality, to be cost-effective (rather than costly) and productive
(rather than counter-productive).
50. If the schemes were to be harmonised,
it would be crucial to maintain the three safeguards recommended
in Lord Carter's interim report:
(1) Direct payment to advocates by the LSC
of the advocacy part of the overall fee (paragraph 190).
(2) A minimum price floor below which the
advocate's share of the fee could not fall (paragraphs 109, 190).
(3) Pro rata variation in the fees between
advocates and litigators so that litigators cannot profit from
the advocates' fee (paragraph 190).
51. The Bar Council does not accept that
"harmonisation" of RAGFS and the LGFS means that there
needs to be "one case, one fee". Indeed, as can be seen
from the previous paragraph, that was not what Lord Carter recommended.
"One case, one fee" would destroy the independent referral
profession of advocates and would, therefore, be damaging to the
public interest, for the same reasons as are explained sections
3 and 5 below. The Bar Council will contend, at the appropriate
time, that any harmonisation should not abrogate the three safeguards
already mentioned.
SECTION 3: THE
SUGGESTION THAT
PRICE COMPETITIVE
TENDERING (PCT)
MAY BE
INTRODUCED FOR
CROWN COURT
ADVOCATES' FEES
AFTER 2009
52. Paragraph 2.19 of the consultation paper
suggests that the move to a single graduated fee scheme after
2009 might be accompanied by a move towards PCT.
53. For the reasons already adumbrated in
the previous section, the Bar Council believes that it is premature
to decide now whether (or how) PCT should be introduced for advocacy
fees just as it is premature to decide now whether (or how) the
schemes should be amalgamated.
54. The Bar Council believes that the public
interest would be seriously and adversely affected if publicly
funded advocacy services were to be procured by a system of competitive
tendering or block contracting. The following are the main reasons:
(1) The cheapest advocacy services are not
likely to be of good, let alone the highest, quality.
(2) Poor quality advocacy leads to additional
expenses elsewhere in the system, in terms of court time, adjournments,
and delays, and additional appeals and retrials.
(3) Efficient and high quality advocacy saves
time in court, leads to a higher rate of guilty pleas, and altogether
improves the efficiency of the criminal justice system.
(4) It is impossible to have an adequate
system of quality control for advocacy after the event. If a defendant
is convicted who should have been acquitted, the damage is done.
(5) Block contracting for advocacy would
lead to lower quality advocates being assigned to difficult cases.
55. The key issue is, therefore, whether
it is right to say that tendering and block contracting would
lead to lower quality. It is submitted that this is inevitable.
56. Any entity tendering for advocacy services
will wish to cut its internal and external costs to the lowest
possible level in order to increase its own margins. It will not
wish to pay away what can be kept in-house. Its cheapest method
of providing advocacy services will be to employ a number of advocates
for all its cases. Inevitably, it will not be able to have a sufficient
range of skills in house to provide for all cases it tenders for.
To cut its costs, it will be forced to use low skilled advocates
for all cases, whatever their complexity. It will also wish to
keep in-house costs down by paying as little to fee earners as
possible so recruiting lower quality and/or less experienced staff.
57. The criminal advocate's professional
duties are onerous and important to the public interest. If their
services were obtained at the lowest possible price, these professional
duties would be likely to be eclipsed in the efforts being made
to save costs.
58. If PCT were introduced, the three safeguards
recommended in Lord Carter's interim report (mentioned in paragraph
50 above) would be crucial.
SECTION 4: THE
IMPORTANCE OF
MAINTAINING A
HIGH QUALITY
INDEPENDENT REFERRAL
PROFESSION OF
ADVOCATES
59. The Bar Council believes that the public
interest is best served by the maintenance of a high quality referral
profession of advocates. The reasons may be summarised as follows:
(1) High quality advocates are able to identify
and deal with the central issues, raised in any litigation, speedily
and effectively.
(2) Accordingly, the use of specialist advocates
shortens the pre-trial and the trial process in both civil and
criminal work.
(3) A pool of referral advocates bound by
a cab-rank rule allows those that are prosecuted by the State
to have high quality independent representation.
(4) An independent profession of advocates
is a significant attraction to overseas litigants, and thereby
promotes the English legal system and provides a valuable UK export.
(5) The attenuation of a specialist referral
profession of advocates would decrease the quality of justice,
ultimately increase delays in and costs of the justice system,
and increase the incidence of miscarriages of justice.
60. We make these points, because the Bar
Council believes, for the reasons given above, that that the introduction
of "one case one fee" and PCT for advocacy fees would
have a seriously adverse impact on the independent referral profession
of advocates.
SECTION 5: THE
PROPOSALS FOR
FAMILY LEGAL
AID
61. Chapter 4 of Lord Carter's report proposes
new, graduated fee schemes for solicitors undertaking both private
law family work and public law children work. The details of the
proposed schemes appear in section 7 of the consultation paper.
62. Private law family work covers all disputes
concerning children (save where the State in the form of a local
authority seeks to intervene), applications for financial provision
on separation or divorce, disputes between cohabitants and applications
to restrain domestic abuse. The new scheme for public law children
work covers applications for care or supervision orders. Whilst
local authorities may apply for other orders under the Children
Act 1989—secure accommodation orders, child assessment orders
and recovery orders are some examples—these are not applications
that are made frequently. The new schemes therefore embrace just
about every situation and every dispute that the Family solicitor
is likely to encounter in daily practice.
63. Hitherto, the LSC has paid solicitors
according to the number of hours of work undertaken on individual
cases. Family barristers were also remunerated in that way prior
to the implementation of the family graduated fee scheme in April
2001. The scheme was the product of a great deal of hard work
and negotiation between the Government and members of the Family
Law Bar Association (FLBA) over a number of years. The intention
was to devise a scheme that was truly graduated in the sense of
being able to recognise the particular complexities of the case
and to calculate the remuneration accordingly. The scheme underwent
substantial revision in February 2005. Further refinements
were made to gradation and remuneration levels were restored to
that which the Government had originally promised. The restoration
of funding and the new scheme for "special issue payments"
stemmed the tide of those practitioners who, without doubt, were
leaving publicly funded Family work for other areas.
64. The Bar Council and the FLBA were fully
expecting to see in the consultation paper some sort of scheme
akin to that under which family law barristers are now paid. But
the proposed levels of remuneration at Level 3 care proceedings
are flat, rather than graduated, albeit that in respect of full
representation (paragraph 7.20), they distinguish between the
roles of those acting for the child, a parent and other parties,
the scheme is decidedly flat. The fees proposed for solicitor
advocacy contain no element of gradation at all. Frequently the
local authority and the Guardian for the child are ad idem
in terms of the outcome sought whilst those acting for parents
have the considerable burden of cross-examining social workers,
experts and others. This can be difficult and time-consuming in
terms of the hours of preparation involved. We urge the Committee
to look again at these proposals.
65. We would make the same point so far
as the fee structure for remuneration in private law family work
is concerned. There is a wealth of difference between, for example,
advising on and preparing a straightforward contact dispute and
an application where one parent seeks the court's permission to
relocate to another country. Equally, a straightforward application
for financial provision cannot bear comparison with a case where
a party might be concealing assets abroad or where it is necessary
to apply to the court to set aside a transaction designed to defeat
the other party's claim for relief.
66. We are concerned that family solicitors
will decide no longer to undertake this vitally important work
(both public and private) either because of the rigid structure
of the scheme or because of the rates of remuneration proposed.
There is a very real danger that as matters stand the most experienced
solicitors will decide to concentrate on privately funded work
or move to other areas of work. We also wonder whether, as drafted,
these schemes will (to borrow from paragraph 143 of the Report)
provide the necessary incentive to practitioners to take on work
and reward efficiency. If not, there is a real likelihood that
the work will become the staple diet of the less experienced and
the less able.
67. Paragraph 7.1 of the DCA consultation
paper states, quite plainly, that there are no current plans to
amend the family graduated fee scheme for the Bar. The proposals
for the remuneration of solicitors and members of the Bar under
the care proceedings scheme are understood. Until very recently,
we have been less clear about what is proposed in respect of interim
hearings in private law cases where counsel is instructed at Level
3. We note that the suggested National Fee of £1,083
includes payment to solicitors for all advocacy conducted short
of a final contested hearing where a certificate for full legal
representation must be sought. If paragraph 7.67 is indeed saying
that there will no longer be circumstances where counsel can be
remunerated under the family graduated fee scheme for conducting,
for example, a financial dispute resolution appointment then we
would be extremely concerned. It represents a significant change
to the way in which barristers are currently remunerated under
the family graduated fees scheme. The "Provider Q & A:
Legal Aid: a sustainable future: Civil Family Legal Aid"
made available at the London briefing session on the 8 September
2006 made only passing reference to the remuneration of counsel
in private law proceedings. It was only on the 28 September 2006
at the second such briefing that we learned from a revised Provider
Q & A document that such was indeed the intention of the DCA
and the LSC. There has been no consultation with the profession
about such a radical change and there was nothing in the Report
to even indicate that this might be a consideration.
68. Such work forms a large part of the
practices of many junior members of the family Bar. If this is
indeed the intention of the DCA and the LSC, they will have to
expect that not only will solicitors be unwilling to undertake
the work, but so will members of the Bar. In a straightforward
financial dispute resolution appointment, counsel's fees for preparation
and attendance at court over half a day would currently result
in a payment of £235 if the case settles, or £268 if
the brief contains over 350 pages. These fees are already at the
lower limit of what is practically sustainable. To see them reduced
further as a result of unfair bargaining by some solicitors would
be totally unacceptable. At the very least there should be in
place a protocol such that where counsel is instructed on an interim
hearing he or she will be remunerated at the identical rate to
that currently paid under the family graduated fee scheme.
SECTION 6: THE
TIMETABLE FOR
IMPLEMENTATION SUGGESTED
IN LORD
CARTER'S
REPORT
69. As suggested above, the RAGFS and the
LGFS can and should be implemented by April 2007.
70. There must, however, be a full diversity
impact assessment before any of the other changes proposed by
Lord Carter can be introduced. It is not, however, thought that
such an impact assessment will slow down the timescales Lord Carter
suggests, provided it is initiated promptly.
71. Nonetheless, Lord Carter's suggestion
that consideration be given to harmonisation of the RAGFS and
the LGFS after 2009 may be optimistic in timing terms. It is crucial
to allow the new schemes to operate fully and properly so that
their cost saving effects and efficiency can be properly evaluated.
Only then should further changes be considered. Full consultation
will be needed at that stage.
SECTION 7: SUMMARY
OF THE
BENEFITS AND
DETRIMENTS OF
IMPLEMENTATION
72. There is undoubtedly a need for legal
aid reform. The Bar Council has never doubted that proposition.
Such reform must, however, be approached incrementally so as to
ensure that high quality legal services remain available to the
public.
73. It would be counter-productive to amalgamate
the RAGFS and the LGFS if they are each working well (by 2010)
to control costs. Similarly, it would be counter-productive to
introduce PCT, if graduated fee schemes have produced a predictable
and affordable expenditure base. There is every indication that
that will indeed be the case.
74. The introduction of "one case,
one fee" for criminal defence work would threaten the existence
of an independent referral profession. An independent referral
profession of advocates is much in the public interest. The quality
of justice would suffer if this change were made, and in the long
run, costs would be likely to increase rather than decrease.
75. Lord Carter suggested only that the
harmonisation of the two schemes (RAGFS and LGFS) be considered.
He did not recommend "one case, one fee". It is suggested
that the Committee should make clear that, as matters stand today,
such a change would be likely to damaging to the quality of justice
and the wider public interest in access to justice.
76. The Committee should ensure that the
new family fees structure does not have the effect of making properly
qualified advocates unavailable to family litigants in crucial
non-final hearings.
Geoffrey Vos QC
Vice-Chairman of the Bar Council
On behalf of the Bar Council's Carter Response Group
Annex
THE BAR COUNCIL'S CARTER WORKING GROUP MEMBERSHIP
LIST
| Name | Chambers
|
| Chairman
Geoffrey Vos QC | Vice Chairman of the Bar
3 Stone Buildings
|
| Vice Chairman
Michael Bowes QC
| Outer Temple Chambers |
| Circuit Leaders
Timothy Dutton QC
| Leader of the South Easter Circuit
Fountain Court Chambers
|
| Simon Bourne-Arton QC | Leader of the North Eastern Circuit
St Paul's Chambers, Leeds
|
| Michael Redfern QC | Leader of the Northern Circuit
St John's Buildings, Manchester
No 7 Harrington Street, Liverpool
|
| Philip Mott QC | Leader of the Western Circuit
Outer Temple Chambers, London
|
| Peter Joyce QC | Leader of the Midland Circuit
1 High Pavement, Nottingham
36 Bedford Row, London
|
| Robin Spencer QC | Leader of the Wales and Chester Circuit
9-12 Bell Yard, London
Sedan House, Chester
|
| Silk Practitioner Members
Andrew Hall QC
| Chairman of the Criminal Bar Association
Doughty Street Chambers
|
| Anthony Kirk QC | Chairman of the Family Law Bar Association
1 King's Bench Walk
|
| Oba Nsugbe QC | 3 Pump Court
|
| Gregory Dickinson QC | 1 High Pavement, Nottingham
|
| David Spens QC | 6 King's Bench Walk
|
| Jonathan Caplan QC | 5 Paper Buildings
|
| Anthony Jennings QC | Matrix Chambers
|
| William Blair QC | 3 Verulam Buildings
|
| Peter Collier QC | Sovereign Chambers
|
| Patrick Gibbs QC | 3 Raymond Buildings
|
| Richard Clayton QC | 39 Essex Street
|
| Anthony Kirk QC | 1 King's Bench Walk
|
| Philip Moor QC | 1 Hare Court
|
| Junior Practitioner Members
Thomas Crowther
| Temple Chambers |
| William Baker | Peel Court Chambers
|
| Ian West | Fountain Chambers
|
| Karon Monaghan | Matrix Chambers
|
| Fiona Jackson | Furnival Chambers
|
| Nicholas Hilliard | 6 King's Bench Walk
|
| Nicholas Wood | Hollis Whiteman Chambers
|
| Simon Barker | Maitland Chambers
|
| Thomas Little | 9 Gough Square
|
| Carol Atkinson | Corum Chambers
|
| Statistician/Economist
Professor Martin Chalkley
| Dundee University |
| Barrister's Clerk representatives
Gary Brown
| 15 New Bridge Street Chambers |
| Ex Officio Members
Stephen Hockman QC
| Chairman of the Bar 2006 |
| David Hobart | Chief Executive of the Bar Council
|
| Executive Secretary
David Anderson
| Remuneration and Policy Assistant |
| October 2006 | |
33
Pursuant to section 76A of the SDA, which came into force on 18
April 2006. Back
34
Pursuant to Section 49A of the DDA 1995. Back
| 
