The myth of "fat cat" barristers

Criminal barristers threaten to strike over cuts to legal aid fees.

Max Hill QC, Chairman of the Criminal Bar Association, will give a speech this evening hitting out at the government's cuts to the legal aid budget and barristers fees, arguing “the criminal justice system is at risk because barristers’ role within it is becoming increasingly less viable”. He will threaten the government with industrial action by barristers – although this is unlikely to happen without further discussion with the association's 3,500 members.

The results of a survey of CBA members show that 89 per cent would be willing to take direct lawful action, such as refusal to attend court. The majority of respondents had experienced delays in payment from the Legal Services Commission.

This is fighting talk. For many people, the idea of barristers going on strike will seem absurd. The government's cuts to the legal aid bill have been presented as necessary to prevent "fat cat" lawyers running off with vast sums of government money. It's a familiar story. However, quite apart from the effect that the legal aid cuts will have on numerous people who find themselves unable to get legal aid support in their divorce or domestic violence cases, the separate cuts to legal aid fees may well push many barristers into bankruptcy. Fees were cut by 13.5 per cent by the Labour government, and a further 11 per cent by the current government.

Max Hill says that when he took over the role of Chairman in 2010, he was ready for the challenges presented by a recession and ongoing economic uncertainty:

But I did not know that there would be such heartache, depression and personal bankruptcy caused by the wanton failure of central government to shore up the Legal Services Commission in such a way that they might pay us in reasonable time for concluded cases.

I did not know that criminal barristers would email, ring or meet me to tell how they couldn’t pay their tax in January.

This comes as no surprise to me. Magistrates' court work, which forms the majority of legal aid cases, is extremely badly paid. Barristers, who are often pupils or young junior barristers, get paid around £50 per appearance, which is the legal aid fee. The disorganised state of most courts means that they are kept waiting around all day for the case to come up, so they can't usually do more than two cases per day, if that.

Solicitors receive the money, and it is their job to pass it on to the barrister. Unfortunately, this doesn't happen quite so straightforwardly as it might seem. Delays are commonplace, and non-payment happens far more often than you'd expect. Barristers are self employed, so if there's no work, there's no money, and if there's no money, there's no job security to see them through. Out of this money, barristers must pay chambers rent, often as much or more than 14 per cent of each £50 payment.

The legal aid bill is predicated on the assumption that people who don't get legal aid should be able to represent themselves in court. It's not surprising that this government thinks that several years of training, bar school, and practise are expendable. But it's a fallacy, as we would soon discover if the barristers did go on strike -- something that would be totally without precedent. Courts that did open would be chaotic, the waits longer than ever, with people desperately trying to fight their cases with no knowledge of the law. Miscarriages of justice would be par for the course. I suspect we would soon discover that legal aid is worth investing in.

Tim Kevan, writer of the BabyBarista novels and columnist for the Guardian, tells me:

If legal aid work pays significantly less than other areas, it is likely in the long run to discourage away the best candidates. This undermines one of our most precious and basic rights: that of the state guaranteeing to all, regardless of means, the right to a fair trial.

This appears to be just what is happening.

Barristers should have just as much right to strike as any other group if they are being wronged. As Hill says, “the time has come to bypass our political masters. If they won’t listen to us, let us go to the public, because that is where governments are vulnerable. Our causes are just.

“In all things, I say we should do what we do so well in court already, every day. Fight without fear or favour.”

Photograph: Getty Images
Photo: Getty
Show Hide image

How a small tax rise exposed the SNP's anti-austerity talk for just that

The SNP refuse to use their extra powers to lessen austerity, says Kezia Dugdale.

"We will demand an alternative to slash and burn austerity."

With those few words, Nicola Sturgeon sought to reassure the people of England, Wales and Northern Ireland last year that the SNP were a party opposed to public spending cuts. We all remember the general election TV debates, where the First Minister built her celebrity as the leader of the anti-austerity cause.

Last week, though, she was found out. When faced with the choice between using the powers of the Scottish Parliament to invest in the future or imposing cuts to our schools, Nicola Sturgeon chose cuts. Incredible as it sounds the SNP stood shoulder to shoulder with the Tories to vote for hundreds of millions of pounds worth of cuts to schools and other vital public services, rather than asking people to pay a little bit more to invest. That's not the choice of an anti-austerity pin-up. It's a sell-out.

People living outside of Scotland may not be fully aware of the significant shift that has taken place in politics north of the border in the last week. The days of grievance and blaming someone else for decisions made in Scotland appear to be coming to an end.

The SNP's budget is currently making its way through the Scottish Parliament. It will impose hundreds of millions of pounds of cuts to local public services - including our schools. We don't know what cuts the SNP are planning for future years because they are only presenting a one year budget to get them through the election, but we know from the experts that the biggest cuts are likely to come in 2017/18 and 2018/19. For unprotected budgets like education that could mean cuts of 16 per cent.

It doesn't have to be this way, though. The Scottish Parliament has the power to stop these cuts, if only we have the political will to act. Last week I did just that.

I set out a plan, using the new powers we have today, to set a Scottish rate of income tax 1p higher than that set by George Osborne. This would raise an extra half a billion pounds, giving us the chance to stop the cuts to education and other services. Labour would protect education funding in real terms over the next five years in Scotland. Faced with the choice of asking people to pay a little bit more to invest or carrying on with the SNP's cuts, the choice was pretty simple for me - I won't support cuts to our nation’s future prosperity.

Being told by commentators across the political spectrum that my plan is bold should normally set alarm bells ringing. Bold is usually code for saying something unpopular. In reality, it's pretty simple - how can I say I am against cuts but refuse to use the powers we have to stop them?

Experts - including Professors David Bell and David Eiser of the University of Stirling; the Resolution Foundation; and IPPR Scotland - have said our plan is fair because the wealthiest few would pay the most. Trade unions have backed our proposal, because they recognise the damage hundreds of millions of pounds of cuts will do to our schools and the jobs it will cost.

Council leaders have said our plan to pay £100 cashback to low income taxpayers - including pensioners - to ensure they benefit from this plan is workable.

The silliest of all the SNP's objections is that they won't back our plan because the poorest shouldn't have to pay the price of Tory austerity. The idea that imposing hundreds of millions of pounds of spending cuts on our schools and public services won't make the poorest pay is risible. It's not just the poorest who will lose out from cuts to education. Every single family and business in Scotland would benefit from having a world class education system that gives our young the skills they need to make their way in the world.

The next time we hear Nicola Sturgeon talk up her anti-austerity credentials, people should remember how she did nothing when she had the chance to end austerity. Until now it may have been acceptable to say you are opposed to spending cuts but doing nothing to stop them. Those days are rapidly coming to a close. It makes for the most important, and most interesting, election we’ve had in Scotland.

Kezia Dugdale is leader of Scottish Labour.