Today’s piece by ex-pupil barrister Harry Mount arguing in favour of the government’s legal aid proposals needs a rebuttal, although whether The Spectator will offer one is a different matter. Let me offer a numbered list of errors, starting with the most spectacularly lazy, writes Simon Myerson QC…
1. Harry Mount believes that to deny legal aid to those with a gross income of £100,000 is hardly unfair. Alas, he has neither read nor comprehended paragraph 3.27 of the government’s proposals. They make it clear that the £100,000 figure refers to household income. If you are charged with a crime, then your income is aggregated with that of your partner. Two teachers might qualify. So might police officers. And, what’s more, if the person charged is innocent – and it does happen – they will not get their legal costs back. For a journalist not to bother to research or understand what he is opining on is shoddy and unprofessional.
2. The 90 QCs who wrote to the Daily Telegraph are not all millionaires. Moreover, it is sneering to suggest that they are (and sneering at someone for having earned money really IS foolish). It is also guesswork – which good barristers avoid.
3. The average pay for barristers doing publicly funded work (crime and family) is readily available. I believe that good journalists research. But I suppose that if The Spectator is more interested in polemic and screeching, research would get in the way. Funnily enough, two junior barristers on average earnings would qualify for legal aid.
4. The judiciary is united in the belief that litigants-in-person slow down the court system and thus delay justice to its millions of users. That belief is also public knowledge. Why Harry Mount – with a pupillage behind him but no discernible practice at the Bar – is better placed to opine that “Most things barristers do for hundreds of pounds an hour could be done as well not just by solicitors but by any intelligent person” is beyond me. He is entirely wrong.
My own (self-kept) records covering 12 years sitting in civil and crime suggest that litigants-in-person double the length of a hearing. It is not because they are not trying to be helpful. It is because they are not expert. Harry Mount might know enough to diagnose a cold, but that does not mean he should be practising medicine – tempting though it is to suggest that he should do so on himself.
5. If this really were “child’s play”, then why do so many people who can afford to pay (including the government) want lawyers? Perhaps the collected experience of millions of people is a better guide? The reality is that Chris Grayling’s proposals are aimed at the poor. I know that Harry Mount – public school, Oxbridge, the Bullingdon – may not have that at the top of his list of priorities, but that is no excuse for failing to actually think through what little he has read and assimilated.
6. Any couple can get divorced for less than £5,000 if they agree everything. As Harry Mount must surely know, the adversarial system only kicks in when there are adversaries: i.e. when people cannot agree. I have looked at the website he quotes: it’s a mediation service. Mediation is a good idea. But no one can be made to mediate. This is, it seems, a deliberately false analogy, in which case The Spectator should be ashamed. If it is not deliberate, then it is foolish in the extreme. Does no one fact check these articles before they are published?
7. Legal aid cases don’t have huge amounts of lawyers. The reality is that if big cases are legally aided, the solicitors are not in court, because the government will not pay for that. In my last long fraud case, a man’s liberty was at risk and his solicitors hired a newly-qualified paralegal to assist counsel, because they would not be paid to come to court and help him. If that had been a civil case – with £2.5m at stake – the parties may well have decided to have solicitors assist counsel. That is because the case had taken two years to prepare and involved approximately 65 full lever-arch files of documents.
8. No one charges hundreds of pounds to read a letter, unless the letter is about 20 pages long. In that case it may well take hours to read and understand. Ditto phone calls. I am sure that this part of the article sounded brilliant when Harry Mount read it aloud in his bath. But in the cold light of the printed page it is simply daft.
9. Judicial Review is how ordinary citizens resist the power of the government. I do not know what Harry Mount proposes to do about that, and it seems that he doesn’t either. Perhaps just saying “OK” to everything is his idea about how a country should be governed. After all, the chaps know best, don’t they? This sort of supercilious nonsense may well underlie the way in which this government wants to deal with individuals. I am surprised that the press supports it.
I am happy to deal with the rest of this article – and perhaps the axe which its author appears to wish to publicly grind (although my free legal advice is to be happy with what you do, rather than bitter over lost opportunities) – if offered the opportunity. Perhaps Harry Mount could give up his next column for this purpose? He could spend the time doing proper research for the one after that, and we would all be better off.
Simon Myerson QC is a barrister specialising in crime, civil and regulatory work at St Pauls Chambers in Leeds. He also authors the Pupillage and How To Get It blog and information resource for Bar wannabes.