Naming and shaming
26 May 1998
Martin Bowley QC thinks that the Government should put its own legal team in order before attacking other lawyers. Martin Bowley QC is barrister at 36 Bedford Row.
It is difficult to decide whether the Lord Chancellor Department's (LCD's) recent attempt to "name and shame" lawyers and firms who have received substantial sums from the Legal Aid Fund was more disreputable for its intellectual dishonesty or for its political cynicism.
The Lord Chancellor must have know that politicians, the media and the public would all focus on the totally misleading headline figures. And they did.
What publicity will Lord Irvine give to a fee I was recently allowed by the taxing officer at the Old Bailey? Eight months after the trial ended I was allowed daily refreshers of £330. After deducting chambers and other expenses, and providing for my pension contributions, little more than £200 a day will be left to be taxed. No one gets very fat on that!
The true political agenda behind the LCD's unattractive exercise was to distract attention from the inadequacies of the Lord Chancellor's proposals for legal aid reform. They will save little - if any - public money, as personal injury legal aid litigation is virtually self supporting. Success fees in "no win, no fee" cases will result only in more money in lawyers' pockets. The "cab rank" rule cannot apply. There will be no incentive to take on uncertain cases.
There are areas of the Legal Aid Fund where real savings can be made, but so far the Lord Chancellor has ignored them. Any Family Division judge will confirm that there is unnecessary duplication of representation in too many child cases.
Not long ago, in a family appeal, the House of Lords found itself faced with five silks, five juniors and five law firms - but only two arguments. When their Lordships suggested that there should be only two sets of fees, the lawyers were shocked.
Very few domestic murder trials require two counsel on either side. In most fraud trials there are defendants who are less involved than others and who do not require the services of two senior counsel.
At present, paragraph 503 of the Bar's code of conduct places the onus on the barrister to advise his client if he considers there is over-representation. But how many silks, who have been brought in by their junior, are prepared to say that they can do the case on their own and that the junior should be dropped?
One solution would be to place the onus on the solicitor to apply for a legal aid certificate for the level of counsel he thinks should lead for his client - silk, senior junior or junior junior. It would then be for that person to justify, in writing, the need for additional representation at the trial, and the level of that representation. That should exercise some control over unnecessary double manning.
The real naming and shaming should be of the members of Labour's legal team for their inadequate preparation for government. The well-documented Cabinet rows over freedom of information and incorporation of the European Convention on Human Rights are two examples. The farce over House of Lords reform is a third. The inability to agree on reform of the voting system is a fourth. The ill-thought-out legal aid proposals are a fifth.
What were these lawyers doing during 18 long years of opposition? Earning money?