Tuesday, 22 January 2013

Cost Over Quality: Do Chris Grayling’s comments perpetuate the pattern of declining standards?

Justice Secretary Chris Grayling yesterday (Monday 21st January 2013) sought to ‘start a discussion’, which in the view of some may represent another line in a long running monologue by the Government: reduction of cost at the expense of quality.  Mr Grayling, bemoaning the large legal aid bill, suggested that the use of Queen's Counsel in the defence of those charged with criminal offences could be reduced by employing those on the cusp of achieving the same status. In short, substitution of less senior – and thus less experienced and less expensive – barristers for the most senior.

Several questions arise from the Minister’s statement. First, one might wonder why those ready to step up to the higher echelons of the legal world would feel content to accept what Mr Grayling argued was around half the wage of a QC, for exactly the same burden and complexity of work. Alternatively, it might be argued that those on the cusp of Silk status might leap at the chance of such top level work to bolster the CV. However, those at this stage of their career are not generally the very young and eager (and perhaps slightly desperate) practitoners, keen to please whenever possible. A reputation will have already been established.

In any case, should this class of junior barrister be willing to accept harder work for no more pay, that does not mean they are either ready or able to manage it. They may be - but one wonders how much assessment will be made of capability when the lure of slashed costs calls. Perhaps more realistically, one would imagine that the junior barristers referred to are likely to be significantly more junior. This raises the question of how far down the ranks difficult cases will fall before the right pay scale can be accommodated.

This raises potential concerns about how the most challenging and expensive cases will be handled by those employed using the Minister’s logic. After all, QCs are highly unlikely to represent the common or garden defendant facing a straighforward trial, and one might assume they would be unhappy about the loss of work to those lower down the ladder. Alternatively, they might feel relieved of the workload; but one would suspect that in a sector as squeezed as criminal legal aid, any fee is appreciated.

According to Bar Standards Board statistics, as of 2010 there were 15,387 practising barristers, of which 1,397 were QCs. One would presume that the number of QCs representing criminal defendants compared with more junior barristers is disproportionately low (specific statistics have been difficult to locate and would be appreciated by anyone who can contribute them !) Most criminal defence lawyers have seen fees go down and workload go up according the Biennial Survey of Barristers Wokring Lives - and for nowhere near the fees of QCs or counterparts in other areas of work.

Worryingly, the comments of the Minister may represent a gateway to attacking criminal defence fees generally - which do not reflect the amounts earned by those QCs criticised in the press. This therefore projects a distorted image of legally aided criminal defence. QCs are arguably employed to defend in circumstances where their experience, skill and status afford the defendant necessary protection. To replace this minority of the most able – but most expensive – in what is likely to be the most complex cases seems illogical but typical of the Government's persistent attitude towards criminal defence: cost over quality.

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