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Lord Sumption tells barristers they’ve been getting it wrong on legal aid

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Maverick Supreme Court judge says state funding is essential for crime but ‘discretionary’ for civil work — and bar needs to accept the public think they’re ‘rich toffs’, however unfair that may be

Lord Sumption is known for his snazzy ties, fine head of hair, huge brain and sometimes outspoken style

The Supreme Court judge famous for having “a brain the size of the planet” has told the bar that it needs to change the way it looks at legal aid in an era of squeezed public sector expenditure.

Speaking at the Bar Conference on Saturday, Lord Sumption labelled spending on criminal legal aid as “fundamental” as he backed the government’s decision — announced moments before he took to the stage — to spend an additional £23 million on barristers’ trial fees in serious criminal cases. But he then proceeded to label civil legal aid as “discretionary”, telling the audience that however “desirable” it may be it had to justifiably compete with other calls on public funds, in areas such as health and social security.

Sumption, who famously wore a Team GB tie on day three of the 2016 Brexit hearing, continued:

“I know this is not a popular message — but the bar’s response to these challenges has not always been wise.”

He then gave his view on exactly how barristers have been getting it wrong on legal aid.

First Sumption said that the bar had often collectively overstated its case in arguing against public funding cuts, failing to recognise that “we can’t return to open handed approach of 1970s”. Previously in his speech Sumption had charted the sharp increase in legal aid in the 1970s, as it rose from supplying 10% of the bar’s earnings to 30% in just a decade. This was a “golden age” that is unlikely to repeat itself any time soon, he said, predicting a shrinkage in barrister numbers over the years ahead — as the effect of the government’s post-financial crisis slashing of the legal aid budget by £350 million works through the system.

The 69-year-old, who will retire next month having reached the statutory retirement age for the judiciary, went on to slam the bar’s recent campaigning methods, which he said would only work if the profession enjoyed instinctive support from the public.

“Barristers will never enjoy the kind of support nurses or teachers enjoy, that means they can’t use the same campaigning methods. Public demonstrations with banner in hand and wig on head look absolutely ridiculous and are completely counter productive,” he said.

Instead, Sumption argued that barristers need to accept that most people believe that “there is no smoke without fire” and that barristers are “rich toffs”. While he described this view as a “travesty” he emphasised that it is a “deeply embedded prejudice” that is very hard to dislodge.

As such, barristers need to focus on “the only real weapons” open to them — refusing to take on instructions for inadequate pay and working on government ministers, who “however resistant are at least likely to have a better understanding of the problem than most of the wider public”.

Earlier on in a wide-ranging speech peppered with some laugh out loud quips that initially got the audience on side, Sumption had reflected on his career as a commercial barrister — painting an amusing picture of his early days in chambers as part of a profession that was much less professional than it is today.

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63 Comments

Anonymous

Fair. The Bar is far too big with far too many mediocre members who would better serve the justice system as solicitors.

(30)(23)

anon

You clearly don’t understand how many mediocre solicitors there are out there.

(7)(3)

Anonymous

Far fewer than barristers obviously.

(1)(2)

Anonymous

I was there for the conference on Saturday and don’t believe this is a fair reflection of what we said.
I also believe this article should be balanced against what was said by Baroness Chakribati who spoke extremely well on these issues.

(11)(14)

Dr Frankenstein

Read the Financial Times if you want a balanced approach. THIS IS LC!!!!!!

(13)(1)

Anonymous

The FT is balanced?

(3)(1)

Anonymous

I was browsing the FT and noted no articles on legal bakers’ instagram accounts. Am I looking at the wrong publication?

(4)(1)

Anonymous

Yes, you were, you should browse Greggs for bakers.

(5)(2)

anon

I was a legal aid barrister for 21 years on principle (Can take the girl out of the comprehensive …). I don’t do crime. I do deplore the rates for the criminal AND family junior bar – we are moving back to truly being a profession of ‘rich toffs’ because no beggar else can afford to slog it out in the trenches for the 10 years it takes to be established.
Did nobody notice that when legal aid rates for bread and butter work were slashed until the marrow squealed it effectively breached the ‘cab rank rule’: bluntly, ‘if you are poor, you will be able to access the same standard of legal representation as a rich toff.’
Now, however, the rate for divorce and crime has been set so low that barristers who can afford to work on private work only have a much sounder basis on which to refuse legally aided work altogether.
Even I am not prepared to make a 7 hour round trip on freezing trains to spend 5 hours at court with an inexpressibly vulnerable (and dangerous) lay client who needs the best advice and feisty advocacy for minimum wage. And my parents were that lay client.
So here goes Miss Comprehensive into the land of privately paying toffs. Perhaps the working classes just don’t have that vital backbone when the crunch comes ? Perhaps if somebody restores the rates somewhat there’ll be a rush of toffee-nosed kids to man the defences ? There certainly won’t be anyone left who actually needs to earn a living.

(11)(7)

Anonymous

‘Backbone’ for being paid next to nothing after chambers expenses and travel is just another way of saying a large trust fund

(7)(2)

Anonymous

I was at this event. Fair summary.

(4)(6)

Anonymous

I said on here at the time of the absurd strikes that the demonstrations looked ridiculous and would harm the profession. The effect was (in any particular case rightly or wrongly) of well-off posh people having a tantrum. I was down-voted by dozens – presumably crimbo hacks and reflexively anti-government students.

I’m very pleased to see that the wisest member of the Supreme Court bench says much the same as me.

(20)(11)

Anonymous

Humblebrag

(14)(1)

Anonymous

Without the humble.

(19)(0)

Anonymous

I predict that someone below will tell me to f*ck off and accuse me of having never predicted anything.

(12)(3)

Anonymous

A prediction after the event? You’re the biggest dumbass alive for sure.

(1)(3)

Anonymous

Have you considered that maybe… just, maybe… that was the joke.

(3)(3)

Anonymous

Jokes have to be funny…

(1)(0)

Uriah

I wouldn’t care to say if my jokes was funny, sir.

But then I am everso ‘umble.

Anonymous

Fuck off you prick when was the last time you predicted anything? Never I bet.

(5)(5)

Anonymous

And yet, barristers fees did get increased and solicitors fees did not.

Barristers went on strike and their fees were increased.

Solicitors didn’t go on strike and their fees were not increased.

I not sure why you think you have been proved correct.

(2)(3)

Anonymous

He needs a trim.

(6)(1)

Anonymous

The Tory pipes up again.

He has a point about barristers being clueless campaigners though. They just don’t know how to campaign in the public sphere. I’ve said it for years. They are too wedded to the concept of making submissions to a reasonable judge who actually reads the papers.

As Tony Blair said in A Journey – if you stay in the law too long you become too much of a lawyer. Those like Blair who left at a relatively young age, and took an interest in politics outside the law, retain an ability to connect with non-lawyers.

(12)(5)

anon

Blair (and Mrs. Blair) continue to live off the fat of the landed; their practices all private, all humongous remunerated.

(12)(1)

Anonymous

What’s your point caller?

(0)(1)

Anonymous

You first, Tory boy 😉

(2)(0)

Anonymous

Legal aid is basically welfare for crap barristers. There, said it. Everybody knows it. Same is true to a lesser degree of most instructions from public authorities etc.

(9)(15)

anon

Presumably authored by a posh-toff, commercial barrister.

(13)(1)

Anonymous

What he says is correct for the criminal bar.

Ok I’ll give an exception to young criminal barristers on the way up. But those criminal hacks who boast about their legally aided crown court trials after 20 years in practice simply haven’t moved on up.

(7)(7)

Anonymous

Moved up to what exactly?

(8)(0)

Anonymous

Anywhere is “up” for a legal aid barrister.

(5)(3)

Anonymous

I suspect that poster is a student who thinks up from Crown Court trials are Supreme Court trials

(4)(0)

Anonymous

Correct. Doesn’t mean I’m wrong though.

(1)(1)

Oxonian

When the Legal Aid strike and protests were on a few years ago, the Oxford Bar “got” that dressing up in wigs and gowns would not attract public support.

Instead, counsel gathered in dignified silence outside Oxford Crown Court as Nicholas Syfret QC, then head of 13KBW Chambers, who had an annexe in Oxford, delivered an eloquent and reasoned speech about how the Legal Aid cuts would harm the most vulnerable in society.

Sadly, this received little press coverage (presumably because the barristers did not dress up).

(14)(0)

Anonymous

The barristers who dressed up for their marches are the same twats who secretly put their wigs on when home alone, and/or make sure they strut around Fleet Street with their court shirt too two buttons undone, wing collar and bands detached.

(7)(1)

nice but dim

As a complete aside, has anyone read his books on the Hundred Years’ War? Worth a read?

(9)(1)

Bumblebee

Ha! Nice to know you read LC, Jonathan.

(5)(2)

Anonymous

The £23m works out at about £10 a brief.

Various things have happened to the criminal bar – the extension of higher court rights to solicitors has decimated the amount of work available. For those commenters who don’t understand how this works – solicitors have first dibs by being able to deal with clients at the earliest opportunity, they will refer any advocacy work to their inhouse team because the firm makes more money that way & crim barristers are stuck with what’s dumped/can’t be covered.

– there has been a massive move to get as many offences as poss charged in the mags court. There is a financial incentive to sols to get clients to plead here. Any guesses anyone on how much a crim barrister now gets where a plea is referred to the CC for sentence? It barely covers the bus fare.

Finally legal aid rates for crim barristers have not seen any real increase for years.

And no crim barristers are not the rubbish end – a lot of them went into it for genuine reasons & actually because (at one stage) you got to do real advocacy as opposed to doing paperwork. The rug has been completely pulled from under their feet and many of them in middle age and above can’t actually jack it all in to become a hedge fund manager.

The lobbying has been rubbish but the strike did not go on for nearly long enough. My point (as a taxpayer) is that having a properly qualified, properly paid brief helps the administration of justice (shorter trials, less time wasting) & actually saves the taxpayer money.

(9)(2)

Anonymous

‘Real advocacy’ as opposed to ‘paperwork’

Come on. I would like to spend all day providing comment for the BBC News, but sadly business realities mean I have to do my paperwork, as is the case with any business.

The plus side is that I gain a deeper understanding of the law.

(1)(2)

anon

Respectfully suggest you refrain from ususimy big words you don’t appear to understand.

(1)(1)

Anonymous

Oh the irony! You fall over your keyboard and fail to proofread, thereby mucking up an insult to someone else’s intelligence.

#epicfail

(3)(1)

Anonymous

I am sorry but you demonstrate exactly what is wrong with the Criminal bar in chambers. Every point you have made is factualy incorrect:-

1) The was an application round for Standard Criminal Contracts in 2017. It was open to any Chambers that wished to, to apply for one. It is open to every barristers to do the PSQ and MCQ in exactly the same way as solicitors. Chambers are not prevented from aquiring their own work and joining duty schemes in the same way as solicitors do. Chambers chose not to and instead adopt a model under which they will not do 98% of the total work available. That might be viable for the most experienced members. It is totally bannanas for a zero year PQE baby.

Junior barristers will only do 20% of a junior solicitors job and therefore cannot get established in practice as their incomes are too low as they chose to exclude themselves from most of the work a junior lawyer can actually do. This is why there is not enough work. Nobody is forcing you to take a brief at £130. You could do a police station rota instead and make £880.

2) You are factually wrong. The AGF is £130 plus £90 per hearing. This does cover your bus fare. If a client pleads guilty in the Magistrates Court a CAT 1A Standard Fee of £248 (for the whole case) is paid to the solicitor. This does not cover the employment costs of engaging a solicitor to do it and the firm will make a small loss on that particular case. If however he gives no indication in the Mags and pleads guilty at PTPH instead an LGF fee is paid. A Group B 500 PPE G Plea LGF is £2,274.12 (plus VAT). As you may have noticed, this is rather more. There has been an increase in committals for sentence and the fixed fee of £248 / £130 is a hang over the 1st Scheme in 1997. Under Mode of Trial only a very minor case could be committed for sentence as jusidiction was decided before a plea was entered. Plea before Venue meant all either way cases would be committals for sentence rather than Graduated Fees. The CBA totally failed to address the issue of fixed fees. This has been a problem for 10 years.

My local Crown Courts do apply the 25% for plea at PTPH but 33% for plea in the Mags. That is advice clients who are banged to rights and asking me if they should plead guilty now have to be given. It is why there are more committals for sentence. I would be better off if the client pleaded guilty at PTPH. The client would not.

3) You are still going on about Crown Court fees. If you have a busy Crown Court practice you will make over £100k. If you are just doing other people’s mentions and sentences then you won’t. The problem is not the fees paid in the Crown Court, it is the very low Standard Fees payable in the Magistrates Court. Solicitors fees for Mags hearings are now at 1978 levels. The CBA and Chambers in general did not care about this when hourly rates were removed. But the effect was that 20 years ago a Mag remand would pay £100 (£200 in todays money). Now it pays £50. The complete lack of interest from Chambers in the rates paid for lower crime has made it impossible for junior members to get started. IF you make it to establishing a Crown Court practice then you’ll be fine. You won’t however as the fees for Mags cases are too low for you to stick at it for long enough.

If you are serious about being a criminal advocate, then it can be done and you can still make a living in the early years. Get yourself PSQ and MCQ accredited. You are already doing the Mags remands you need for the portfolio. Why not just write ’em up and submit your portfolio to Cardiff? You won’t last at the Bar on £12k a year doing Mags remands. But supplement that by another £20k for doing your two police station and one court rota a month and you have a workable model.

(15)(1)

Anonymous

Have you actually been in a Crown Court recently? Croydon half empty, Snaresbrook, Woolwich – the list goes on.

And who says I am in my early years. You clearly are.

(0)(1)

Anonymous

Thats called not having a practice.

Yes. The volume of Crown Court cases has fallen. What’s your point? Westminster Court Duty wasn’t empty today with 8 cases. The Barnet & Hendon rota wasn’t empty with 4 attendances, Central London wasn’t emplty with 2 attendances the list goes on. Less than 8% of cases go to the Crown Court at all and half of them are fixed fee cases. Its not the fault of solicitors that you chose not to do the work that is available and pays a higher fee anyway and instead chose not to work and blame solicitors for the fact you haven’t got any work. Thats on you.

I assumed you were in your early years given your complete ignorance of the fees structure. Any barrister or solicitor who has even filled out an AGF1 or LGF1 knows a fixed fee is less than a graduated fee. Except you it would seem.

You made a moronic comment that solicitors have a financial incentive in ensuring that cases are “referred” (the correct word is committed) to the Crown Court for sentence. The reverse is true and the solicitor is paid less if the case is committed for sentence rather than sent. Cases are never “referred” to the Crown Court they are either sent Section 51 and attract a graduated fee or committed for sentence Section 3 and attract a fixed fee. Do try and use the right words at least when you pretending to be senior.

When you get caught out as being completley ignorant of basic criminal procedure and blissfully unaware of the fees actually paid for Crown Court work, stop digging by pretending to be senior. If you junior you are just a fool. If you are senior then you knew what you were posting was complete bollocks and you are a liar.

(6)(0)

Anonymous

Former Bazza here, what still amazes me you get hoardes of BPTC grads obtaining pupillage in criminal sets. They will be from very modest /working class backgrounds and despite being told they can’t make a living they still think they can buck the trend . Well they won’t and they don’t . From my intake not one is at the criminal bar any more they all had the foresight to get out in under 3 years max and retrain . I have little sympathy for them . One I knew 2 years call used to average receipts if £750 per month gross , go figure….

(2)(2)

Anonymous

Hmm well if they are qualifing, sticking at it for a year and then going into other areas I’m not sure you can call that foolish of them. Lots of solicitors have to do years on crappy paralegal jobs and then do a 2 year TC. Taking 12 months on crappy wages to qualify doesn’t seem so silly.

(2)(1)

Anonymous

In-house is the way for crim bods to go to actually stand a chance of making a living.

(1)(1)

Anonymous

In house doing fraud at a commercial city law firm you mean. The only proper escape.

(0)(0)

Anonymous

@anon above , I have no idea why they don’t do just that.

(0)(1)

Anonymous

Barton v Wright Hassall judge in civil courts are only for the rich shocka!

(0)(0)

Anonymous

B v WH is one of the finest judgments of recent years. Long overdue.

(0)(0)

Anonymous

Elitist decision about promoting the use of lawyers in my view.

Why do think its a fine judgement and why do you think its overdue?

(0)(1)

Anonymous

Read it with your Litigant in Person’s dogged attention to detail, think long and hard, and the wisdom and justice of it will eventually become apparent to you.

(1)(0)

Anonymous

I know its something to do with the fact that you don’t like Litigants in Person and you’re not a good enough lawyer to make a living if they’re treated fairly.

But why do you think its ‘the finest decision in recent years’ and ‘long overdue’? Your dogged attention to detail seems to have overlooked the question.

(0)(1)

Anonymous

Typical LiP: you tell them what to do; they don’t do it; they come back wanting more help.

This is why litigation involving a LiP takes so much more time than it should and why there’s such a risk of an unjust result.

LiPs against each other is either comedy gold or a complete and utter car crash. I’ve been instructed in quite a few cases where both sides have been LiPs but my client has realised they’re heading for the rocks and finally got round to paying for proper advice. Judges in those cases always seem so happy to see the lawyers.

(0)(0)

Anonymous

I know, you don’t like LIPs. I don’t need you to tell me what to do and I don’t need your help. I’m telling you to explain why you think Barton v Wright Hassall was the finest decision in years and why you think it was long overdue. You don’t seem to be able to and you’re doing a good job of showing it wasn’t.

Cases involving LIPs don’t take more time.

You’re right, Barton v Wright Hassall was unjust because a LIP was involved.

And yes, you’re right, a lot of judges are biased towards lawyers v LIPs.

Answer the questions if you can.

(0)(0)

Anonymous

Have you actually read B v WH? Do you actually understand that the rules must be universal? Do you have any idea how expensive litigation is for a represented client who has to fend off a foolish, obsessive LiP?

Since you need to be spoon-fed: the reason that the case is so significant is that it states at the highest level that the rights of the represented and unrepresentated are the same.

No special treatment for you, Mr/Ms Compulsive-Whinger.

Anonymous

Yes I’ve read it, hence my view that it was an elitist decision designed to make people use lawyers and one which made the court look ridiculous. There is of course a simple way for represented parties to save money against a LIP – self represent.

I understand you agree with the decision because you’re not good enought to earn a living as a lawyer if LIPs are treated fairly, its the only possible explanation for you to describe it as ‘one of the finest decisions in recent years’. Still not sure what you mean by ‘long overdue though’?

Anonymous

If you practised law and saw the frustration and waste created by LiPs you’d understand.

But you don’t. You’re a LiP. A here-today-gone-tomorrow obsessive. No doubt with a ham fisted attempt at a cause of action and an incomprehensible witness statement.

And you lost. I expect.

Anonymous

I know, I know, you don’t like LIPs and you think Barton v Wright Hassall was the ‘finest decision for years’ because you aren’t good enough to last 5 minutes on a level playing field.

LIPs don’t add time or cost to proceedings, that is done by untrained judges, or lawyers deliberately causing delay when dealing with LIPs in order to bump up costs.

Don’t confuse losing with fair outcome.

And you still haven’t said why you think the decision was long overdue.

Anon

I works in a large provincial mixed set. We cannot get juniors to undertake criminal work as nowadays it is kept in house by defence solicitors and the CPS and when they are instructed the rates are a joke. £46.50 to go to a court centre an hour away, do the hearing and get back to chambers…and then pay rent etc on that fee. The bar is dying from the bottom up in crime and in ten years time there may be no criminal bar of any real substance. Then and only then will the penny drop that experienced people are needed to prosecute and defend difficult cases…and they just won’t be around. Great shame for the taxpayer who will see poor advocacy cost them more in the long run….

(6)(0)

anon

… and there was no-one left to speak for me …

(3)(0)

Anonymous

sounds like a collective failure of leadership. give me bob crow any day over this lot

(0)(0)

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