Time for a Change

Duncan McCombe and Sam Roake reveal the grim reality, as a Young Bar survey shows 50% of criminal juniors are working for free. Doing nothing is not an option and a solution must be found, they argue.

Ask a group of junior criminal barristers if they’ve ever taken a magistrates’ court (MC) brief on the understanding that they would receive no fee whatsoever, and half will tell you yes, they have.

That’s the grim truth as revealed by the recent survey carried out by the Young Barristers’ Committee (YBC). With 1 in 4 eligible junior barristers (those in the first seven years of practice and specialising in crime) completing the survey, there is now a firm evidence base to back up what has been known anecdotally for a long time.

Unpaid fees aside, on the occasions where a fee is paid, the situation is also bleak. The majority told us (64%) that MC fees are paid on average somewhere between 1-6 months after the hearing. Twenty-four per cent said the delay was 6-12 months. Ten per cent described having to wait more than a year.

This is despite the fact that the Legal Aid Contract which solicitors sign with the Legal Aid Agency (LAA) requires counsel’s fees to be paid within 30 days (clause 3.3(b)(i)). Less than 2% of respondents were paid in that time on average.

Whose fault are these lengthy delays? 70% blamed instructing solicitors; 10% said it was the LAA; and only 2% pointed the finger at clerks or chambers (8% weren’t sure).

Sixty per cent of respondents had raised concerns in chambers, despite the obvious professional risks involved. The results, they said, were disappointing. While a tiny minority had experienced positive change (whether through fees being successfully chased or chambers no longer taking instructions from that firm), most said that nothing had changed at all.

That’s life at the Bar?

Most were given short shrift: ‘That’s life at the Bar!’… ‘It’s part of the job!’ were examples of replies respondents had received from chambers. Another was told ‘Shut it if you want Crown court work!’; others told a similar (and familiar) story of chambers wanting to keep solicitors on-side so bigger, juicier briefs could be brought in. Another, during pupillage, was even reprimanded for raising concerns.

So, while most respondents blamed solicitors for payment delays, many of those individuals also described clerks and chambers as being complicit in the situation. Aside from the clear moral wrong of exploiting junior barristers, this raises regulatory concerns: in particular the requirement (Bar Standards Board Handbook rc110i) to treat all members of chambers in a fair and equitable manner, and the issue of referral fees.

This, along with other factors, is having a devastating impact on the young Bar. As one respondent said when asked what was done after he/she had raised concerns about the payment of MC fees: ‘Not a lot. Now on secondment trying to find a way out of the profession. Can’t afford to live. Very disheartened about the whole career at this stage – working for basic minimum wage.’ No wonder the number of barristers under five years’ Call has fallen by 30% between 2005 and 2015 (practising certificate figures for the Bar, January 2017).

Doing nothing is simply not an option

Some action has been taken over the years. In 2002 the Bar Council agreed a protocol with the London Criminal Courts Solicitors’ Association concerning the payment of MC fees. This was updated in 2008 and can be found here: bit.ly/2h7zjIi. The protocol, although voluntary, sets out minimum rates for MC work (£50 for first appearances, remands, bail applications, sentences and adjourned trials; £75 for a half-day trial; and £150 for a full-day trial) and states that fees should be paid within 30 days of invoice. The new protocol was accompanied by a letter from the then Chairman of the Bar, Timothy Dutton QC, to the profession emphasising that these were minimum rates, and drawing attention to the relevant regulatory requirements for chambers (now under the BSB Handbook rc110i) and the serious potential consequences of breaching them. Yet, almost ten years on, the problem persists.

Like those 50% of criminal juniors working for free, readers are probably wondering what the solution might be.

It is clear that the current protocol is not working. If you didn’t realise it existed, you’re not alone – 43% of respondents didn’t either. The fee levels haven’t changed since 2008, not even adjusted for inflation, and will rightly be seen as derisory by many. Some of the fees received by respondents fell below even these levels and – of course – sometimes a fee won’t be received at all.

Finding a long-term solution

While a new protocol, or wider knowledge of the current protocol, may help at the periphery, we do not think that it is a long-term solution to the problem. The YBC’s view is that the answer is more likely to lie in the modernisation of how counsel’s fees are paid for MC work. In a criminal justice system where there is a general drive towards digitisation, and in which Crown court fees are a) set at fixed levels and b) paid directly to counsel, doesn’t the mode of payment in the lower courts look like something of a relic, and an unfair one at that? (Would anyone redesigning a system for payment now structure it as it is?)

It is the YBC’s view that a new system is needed where fee levels for all the various hearings are fixed (and kept under review) and paid directly to the advocate.

We have had various meetings with the LAA, the Remuneration Committee at the Bar Council and solicitors. No one has raised any objections of principle to such a scheme. Most of the objections appear to be simply that nothing will change and therefore that it is not worth trying. We could not disagree more. This is a serious and long-term problem which is undermining the viability of the profession as a whole. The LAA indicated to us that a change, although potentially difficult, is ‘not beyond the wit of man’. As has been shown with the proposed AGFS (Advocates’ Graduated Fee Scheme) reforms, the LAA is willing to make changes if the profession commits the time and effort to assist it in doing so.

Fairer system of payment

A system of direct payment would be fairer and would prevent abuse. It would bring remuneration for MC work in line with remuneration in the Crown court. It seems to us that this should eventually allow for efficiency savings for the LAA. It would also remove an administrative burden from solicitors, who would no longer have to deal with paying advocates for work done on their cases.

Any change of this nature would take time. The current Legal Aid Contract has three years to run and has the option of being extended for another two years beyond that. Let us use this time to put together a robust long-term solution to this long-running problem. We must start now.

The Criminal Bar Association has already offered its support and naturally, we welcome the views of all parties in this debate – the Bar, the LAA, the Ministry of Justice, and of course our colleagues in the solicitors’ profession. We have begun that process of engagement with all of those groups. It is the YBC’s sincere hope that real progress will be made on this vitally important issue. If you have suggestions, please email us at YBC@BarCouncil.org.uk.

Further information can be found on the Young Bar Hub’s summary of the survey.

IN THE SHORT TERM: potential solutions

While the search for a long-term solution continues, here are some tips as to what may help to alleviate the situation in the short term:

  • Help your solicitor. Even though you as counsel may have a fixed brief fee, the solicitor is paid per hour by the LAA including for your time. Proper time recording of hearing and preparation time may help bump the solicitor’s fee into a higher bracket and therefore have a knock-on effect as to the fee you can charge for your work. Similarly, solicitors we spoke to said that receiving a single monthly bill from chambers for MC work, rather than numerous individual bills from each barrister, would help them with their administration.
  • Report abuse. The BSB cannot do anything about breaches of the handbook about which it has not been told. This may require reporting by more senior members of the profession on behalf of their junior colleagues who may feel unable to do so. The Bar has a proud tradition of standing up for the vulnerable; it should do so within the profession too.
  • Educate yourself and your clerks. Solicitors get paid a monthly fee for MC work based on their previous volume of cases, which is then reconciled at regular intervals with the actual amount of work done. They are not paid directly on a per case basis. Accordingly, as one solicitor we spoke to put it, there is ‘no excuse’ for late payment. The LAA told us that it is happy to investigate late payment or non-payment of counsel’s fees on an anonymous basis if it is reported to them.

If paid, when is payment received?

  • (64%) 1-6 months after the hearing
  • (24%) 6-12 months
  • (10%) more than a year

Whose fault are these delays?

  • (70%) instructing solicitors
  • (10%) Legal Aid Agency
  • (2%) clerks or chambers
  • (8%) not sure

Duncan McCombe – Chair of the Young Barristers’ Committee (2017)

Sam Roake – Member of the Young Barristers’ Committee (2017)

(This article first appeared in Counsel Magazine issue: October 2017)

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