Chris Grayling, the Justice Secretary, has recently questioned the need for Queen’s Counsel, or Silks as they are known, to be instructed in criminal proceedings, and by that, he means defence criminal proceedings. This questioning comes on the back of a legal aid bill submitted on behalf of Asil Nadir in the region of £1 million. I do not know who represented him, but I suspect his defence team included a smattering of Silks.
The eligibility to legal aid has always confused and bemused me in equal measure. In the case of Nadir, it was proved in court that he had squirrelled away up to £29 million from Polly Peck when it went into administration. He fled the jurisdiction and lived high on the hog in his home in Northern Cyprus for 17 years. When he returned to the UK “to clear his name” (dumb move as it turned out), he was living in Mayfair on bail in a house rented at £20,000 per week, so no evidence of hardship, but against all this, he was granted legal aid on the back of a claim that he had no assets, and was dependent on handouts from his mother and girlfriend. Some mother! Some girlfriend! As it turned out, that didn’t wash with the judge, who ordered him to pay £5 million in compensation to the administrators.
But enough of Nadir if that’s possible, and back to Grayling’s wider point.
He said: ‘If you look at the daily rate for a senior QC it can be between £1,300 and £2,000. For somebody who’s going to become a QC in a month’s time, it’s half that amount. The question is, can we really afford so often to use people who are paid such an additional higher rate compared with somebody who’s nearly as experienced, who’s a seriously competent barrister, who will become a QC one day if they choose to do so.’ Quite so.
In a nutshell, and Grayling is referring to legal aid, if a senior barrister is qualified and competent enough to become Queen’s Counsel, it is more cost effective to use him at half the price instead of a Silk who is no better qualified and competent, simply because he is entitled to use the letters ‘QC’ after his name.
There was an active debate back in 2003, with the proposal that the rank of QC should be abolished altogether. The Bar Council, amongst others, argued that this would discriminate against ethnic minorities and women. For my part, I have never understood the rationale behind that argument, although I am not an ethnic minor, unless WASPS qualify, and I am not a woman.
Perhaps the obvious solution is for Silks not to use their appointment as an excuse to double their fees. That would leave the rank available to those who seek elevation and who feel it important to their standing in the profession, and satisfy Grayling’s demand that there should be better value for money in the market place where the public purse is the provider.
At the end of the day, the Legal Services Commission sets the budget, and if the Silk will not work within that budget, he loses the brief. End of story!