Barristers turning away from government legal work over frozen fees

Whitehall: Barristers speak out over government rates

The failure to increase the rates of pay for barristers handling government work since 1997 has created a “very high level of dissatisfaction and exasperation”.

The Constitutional and Administrative Law Bar Association (ALBA) said an “overwhelming majority” of the 635 respondents to its survey stated that, when professional expenses and tax were taken into account, it was now “simply uneconomic to do any volume of work at government rates; the opportunity cost is now too great”.

It said the senior judiciary was dissatisfied with the impact on the progress of cases, citing comments made by Mr Justice Garnham at a recent case management conference about delays to the case because the government could not find security-cleared counsel willing to act for it. He expressly linked this to the rates of pay.

ALBA has made a submission to the Treasury Solicitor after learning that the rates paid to counsel on the Attorney General’s civil panels, who undertake work for central government or as special advocates, were under review. It noted that counsel’s views had not been sought.

Using the Bank of England’s inflation calculator, it said that, had the rates been increased in line with the consumer prices index, the London C panel rate of £80 per hour (for those over five years’ call) would now be approximately £152, the B rate of £100 would be £190, the A rate of £120 would be £228 and the ‘standard’ silks’ rate of £180 would be £342.

The regional panel rates are lower than the London rates – £60 for the C panel, £90 for the B panel and £110 for the A panel.

“Accordingly, in real terms, government rates have almost halved since they were introduced. More than one respondent to the survey pointed out that, having progressed up through the panels over a number of years, in real terms the rate that they are now paid as an A-panellist is lower than that which they were paid when they were first appointed to the C panel.”

It did not appear that similar freezes had been applied to the rates at which Government Legal Department lawyers were charged out to their clients, or to the rates paid by the government to external solicitors, the survey noted.

“Respondents referred to the fact that, as a result, when the government engages external solicitors or expert witnesses on cases, panel counsel are now often the lowest paid members of legal teams, often being paid at a lower rate than external solicitors charge for trainees or paralegals.”

Barristers observed that government rates compared unfavourably to legal aid fees and even less favourably to those paid by other comparable public sector organisations.

“Many respondents referred to the fact that government rates are less than a quarter to a third of their normal rates (in some practice areas, such as revenue, the differential is much greater) and that, when professional expenses and tax are taken into account, the proportion is much lower.”

There was an understanding that government rates would not match those paid by commercial clients but the quality of work and element of public service that was often involved counterbalanced this to some extent.

However, the gap was still too big, ALBA said: “The clear message from the vast majority of respondents is that they are now less willing to do government work, and will typically do so only if it can be cross-subsidised by other work that is paid at higher rates.

“As a result, many respondents stated that they had been discouraged from applying for appointment to the panels or, having been appointed to the panels, they have placed tight limits on the volume of government work that they are prepared to do.”

Responses from clerks similarly noted a downturn in applications to the panels from counsel who would previously have been likely to apply, and an increased reluctance on the part of panel members to take on government work.

This was also leading to a loss of expertise, with more senior respondents reporting that they were finding it more difficult to secure juniors “of the appropriate quality or with the necessary expertise or experience to carry out challenging government work”.

Further, the rates were discouraging those working part-time because of caring responsibilities, particularly women, from doing the work.

The submission concluded: “The concept of unfairness was one that permeated the responses. There was clear evidence of a feeling amongst those who do government work that, despite the often huge efforts (and frequent sacrifices) made by counsel who do such work in order to obtain the best outcomes for their clients, they have been taken for granted.”

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