24 June 2002
It is rare that the Bar Council makes a courageous decision, but it appears to have done so in its recent assault on the cab rank principle.
Courageous because the move was part of the Bar's ongoing campaign against the Government's slashing of fees for publicly funded work; and also courageous in the definition of the word employed by Humphrey Appleby, the senior civil servant in the Yes, Prime Minister series. Courageous for Appleby meant a radical measure that upset the applecart with far-reaching and potentially damaging consequences.
What happened is that the Bar Council became so incensed at New Labour's introduction of graduated fees for family barristers' work - reducing their fees to a level commonly described as that of a plumber - that it has removed the application of the deeming principle to this work. The principle bans a barrister from refusing a case because they feel they are not sufficiently paid for it. In removing the principle, the Bar Council also did away with the cab rank principle in family-related work, because from then on counsel were permitted to reject cases.
Certainly, one can understand the Bar's outrage at the Government. The eminent criminal silk Malcolm Swift once said that more money is spent on Whitehall stationery than on funding the system that has replaced legal aid. Lawyers also continue to be an easy target for Government cash cuts.
Less understandable is the sense behind the council's thinking, for the upshot has been that only counsel with the smallest of practices are now taking graduated fee work (ie very junior counsel) because no one else would touch it with a bargepole. However publicly spirited they are, they still have to survive and pay chambers contributions, and £60 for a 15-page pleading in a family graduated fee case is hardly going to keep them ticking over for long.
Of course, previously graduated fee family work would be the domain of a spread of the Bar, including silks and senior juniors as well as those with less than five years call. They were much better suited facing a silk on the other side than the poor publicly funded junior is today.
But it is not just the Family Bar that is in the doldrums, for the Government in its madness has also classified non-privately funded work relating to the Inheritance (Provision for Family and Dependants) Act 1975 under the graduated fee scheme. This work is the domain of the Chancery Bar, which reports a similar cycle as the Family Bar, with fees hitting an all-time low and a reduction in the quality of advocacy. One clerk in a chancery set reports that basic rates for inheritance work have dropped from a maximum of £275 down to £110.
As a result solicitors are having to tout their cases like desperate salesmen, as one chambers after another rejects their instructions. A letter from four-partner London firm Galbraith Branley to family set 29 Bedford Row starkly describes the reality: "Since the introduction of graduated fees we have found it increasingly difficult to get counsel. This is particularly the case in relation to ancillary relief, which is regarded by the profession as uneconomic." 29 Bedford Row only receives graduated fee work so long as solicitors instruct the set with private work.
Furthermore, courts are accounting for the low number of counsel willing to do graduated fee work by only listing cases when a barrister has been instructed. Most worrying is that some solicitors have ceased doing publicly funded work altogether.
Ultimately, this slightly nightmarish reality, in which the main sufferers are the lay clients, was sparked by the Bar Council's decision to waive the deeming principle. However, the Council is simply doing its job of representing the interests of barristers, and few can fail to sympathise with sets that reject appallingly badly paid work.
There is, however, a wider implication to the Bar's liberalisation of the cab rank principle. Some chambers have - in breach of the principle and for one reason or another - traditionally rejected pieces of work. While the council frowns on such behaviour, it is widely held that it will continue on the path of effectively waiving the cab rank principle for more and more types of work, and with far-reaching consequences.