Law: Time for a silk cut?

The House of Lords is calling million-pound barristers like Michael Mansfield to account for spiralling legal aid fees.
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The Independent Culture
RUMOUR HAS it that one of the first pounds 1m briefs happened in the 1980s when a well-known QC was approached to appear in a long-running case in the Far East and told his clerk, thinking that the law firm would baulk at the figure: "I don't want to be stuck out there for that long - tell them that they'll have to pay me pounds lm" - and to his surprise and annoyance - they did.

Since that time, many `star' barristers have reached the million mark, but given the current culture of `let's hang all the lawyers and drown the fat cats', the not entirely unexpected result has been the convening of a new kind of Star Chamber next week when the five Law Lords in the House of Lords will hold an inquiry into the criminal legal aid fees of four leading QCs.

The four `stars' at the Bar to come under the scrutiny of the Lords are maverick left wing barrister Michael Mansfield QC, Christopher Sallon QC, Peter Feinberg QC and Richard Henriques QC, for the work done on appeals which went to the House of Lords. The inquiry was set up because Michael Davies, clerk to the parliaments, refused to sanction the bills of the four silks, and depending on their lordships' findings, it is likely to have wider implications for calculating legal aid and the fees of criminal law QCs.

The last time there was a similar hearing in 1993, the judge, Lord Templeman, used the comparison of one silk's fees with three headmaster's annual salaries, but that was instigated by the barristers.

This is the first time that the Law Lords will decide whether barristers' fees should be brought into line with other public service professionals. The likely comparators will be with the medical profession, equating silks with senior NHS consultants.

For example, Sir Magdi Yacoub receives pounds 57,800 a year, plus a yearly A+ merit award of pounds 54,910; he is also believed to earn pounds 150-200,000 a year from private practice, some of which he donates to research projects at his hospital.

The inquiry comes at an opportune time for the Government which is keen to be seen to be naming and shaming - commentators have speculated that the recent publication of legal aid payment figures for the top group of barristers and solicitors firms - in response to a question put by a Parliamentary Private Secretary - was actually at the behest of the Lord Chancellor or his parliamentary secretary Geoff Hoon, who were essentially asking a question that they wanted to answer.

Leading criminal barrister Martin Bowley QC comments: "It is difficult to decide whether this attempt to name and shame those lawyers and firms is more disreputable for its intellectual dishonesty or for its political cynicism."

He adds: "Lord Irvine must have known that politicians, the media and the public would all focus on the misleading headline figures - and they did."

Bowley recently acted in "a complicated murder case, he put forward `the fully monty' of six distinct defences to the charge of murder"; eight months after the trial ended, he was allowed daily refreshers of pounds 330, and after deducting chambers and other expenses, and pension contributions, about pounds 200 a day was left to be taxed. He adds: "No one gets very fat on that!"

But the annual publication of payments from the legal aid fund always gives use to accusations of lawyers milking the system. The Legal Action Group extrapolated from Law Society and Bar Council figures last year that the legal profession does well out of the state: legal aid provides more than pounds l in every seven earned by all solicitors and over pounds l in four brought in by the barristers.

But what has also given those at the top of the legal profession the impetus for holding the inquiry follows on the negative comments from a number of judges on the level of these fees, including the speech by Sir Gavin Lightman at the Chancery Bar Association recently where he said that "to the public, the grant of silk is tantamount to the grant of a licence to print money. This may be an exaggeration, but there is an element of truth."

And even the right-wing Adam Smith Institute Report in February called for the abolition of title of Queen's Counsel - the author, Peter Reeves, a former Oxford solicitor, argued that the selection of silks is an arbitrary process which enables those chosen to that position to bike up their fees.

Bruce Houlder QC, vice-chairman of the Bar Council's public affairs committee, responded in defence of the silk system in The Lawyer. "It is sometimes forgotten that barristers take an enormous risk in taking silk and automatically disable themselves from receiving lucrative work from both the public and private sector. There are those that have discovered these risks in an acute form. Once granted, letters cannot easily be returned, and the new QC may face financial disaster if the skills for which he was recognised as a junior find no marketplace in silk." Another argument put forward against the abolition of QCs is that the big stars at the Bar will be able to command high incomes whether they are called QCs or not. But the inquiry is part of what many in the legal profession consider should be a wider review of legal aid, both criminal and civil. The Bar might argue that if criminal fees are reduced, the inevitable result is that they will all switch to doing civil work because it is better paid. But in the narrower terms of the inquiry, it is not disputed, according to one senior barrister, that "certain silks, have been taking the scheme for a ride and that the rest of us will suffer. But the average criminal silk is not earning big money, probably pounds 60,000, bearing in mind the overheads and other expenses."

Perhaps the irony for the four silks at the centre of the House of Lords inquiry is that they have instructed another silk, Jarnes Munby QC, to represent them, while the Bar Council has retained Sydney Kentridge QC to represent the Bar's interests. For once, those instructing two top QCs do not have to worry about paying expensive silks' fees, as it is traditional for those at the Bar to appear for other barristers for nothing. Whether it is happening in this case, no one is able to comment.