UP TO SNUFF

I have never felt particularly comfortable about professional engineering.  By that I mean devices chosen by the Ministry of Justice to promote candidates to higher office simply because of their colour, gender or creed, and regardless of their qualifications to fill the post on offer.

It started some years ago when the Law Society lobbied the then Lord Chancellor, it could have been the acerbic Scot Lord Clash of McFern, demanding access as advocates to all the higher courts.  Until then, these solicitors had rights of audience in the Magistrates Courts, where they felt most comfortable and could weave their magic and impress the court with their advocacy and adversarial skills.  The higher courts were the preserve of the Bar. Lord Clash, never a friend of the Bar, engineered their admission to the higher courts, in reality to break the Bar’s monopoly, but in so doing, allowed a rush of solicitors with little or no advocacy skills, to wash around the higher courts when, on any view but his own, it would diminish the reputation of the courts and the effective administration of justice. Despite a wealth of evidence to the contrary, it was determined that solicitors could apply for a higher courts certificate if they could satisfy the Ministry that they were up to snuff and, most importantly, they could pay the advocacy fee.

It is entirely possible that some solicitors can match the Bar in advocacy and adversarial skills, although in my considerable experience, I am yet to be convinced.  That said, with this professional engineering and a glut of lawyers from both branches of the profession, standards are plummeting. Lord Clash has little to be proud of.

And so it is with Queen’s Counsel.  In the not too distant past, it was regarded as a privilege and a mark of excellence to be appointed a QC.  Generally speaking, the appointment followed at least two previous applications, each time accompanied by a hefty application fee, with the candidate requesting references from big hitters in the profession and, with any luck, a high court judge.

Recent statistics show that of the appointments, men predominate as they have throughout the profession since time began.  However, there are moves afoot, with the connivance of Liz Truss, a female and the current Lady Chancellor, to professionally engineer future appointments to favour females.  I remember a colleague of mine making a highly amusing speech at one of the profession’s interminable conferences on how best to secure an appointment.  He concluded after a detailed statistical analysis that transgender candidates from one of the ethnic minorities stood the best chance of all.  His remarks may have been tongue in cheek, but beneath the humour lies a serious message, and it’s depressing.

VALUE FOR MONEY

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!