After writing last week about how it was ridiculous to compare the income of legal aid criminal legal aid barristers to the Prime Minister’s income (as Chris Grayling proposed), perhaps we should think about the question – how much should they be paid?
Although it is on the face of things a very boring question for almost everyone except barristers, it does matter enormously. We cannot expect to have a properly functioning justice system without adequate lawyers to prosecute and defend. Our jury system can only function if competent advocates for the prosecution and the defence are available to test the evidence for each side. And we cannot expect to recruit good judges unless there is a pool of good lawyers from which they can be selected.
The image of the fat cat barrister living high on the hog at public expense is almost impossible to dispel. But even the Government’s own figures show that 65% of barristers doing criminal work receive a gross income of less than £50,000 annually. Perhaps that sounds like a reasonable living, but given that all these barristers will have unavoidable expenses of at least 25% this means that about two thirds of criminal barristers have an annual income of less than £37,500.
Just to be clear, according to the government, most criminal barristers earn not £37,500, but less than £37,500. And of course, the 35% who earn more than this probably include almost all the QCs. If one excludes these from the picture, it is likely that very nearly three-quarters of ordinary criminal barristers actually have an income below £37,500.
By an ironic quirk, a disposable income of £37,500 is the point below which, under the Government’s latest proposals, defendants would become eligible for legal aid. Legal aid is intended, according to the Government, to be targeted at those in need of representation in court who “can’t afford it.” So by the Government’s own measure the overwhelming majority of criminal barristers already have such a low income that they would themselves be eligible for legal aid under the latest proposals.
Very few criminal barristers joined the profession in order to get rich. But there is no self-evident reason why they should not be paid a comparable amount to other professionals within the criminal justice system. One obvious comparison might be with police officers, who, on average, are much, much better paid.
Take the Metropolitan Police. Once a new entrant to the Met has completed his or probationary two years he receives a basic salary as a PC of £32,610: very similar to the amount paid to a typical criminal barrister. But the difference is that unlike the Police Officer that is all the barrister gets, whereas the Police Officer gets many generous extras.
All police officers are immediately enrolled into a generous final salary pension scheme, albeit contributory. The barrister gets no pension at all unless he makes his own arrangements.
The list of other benefits for police officers is a long one (this is taken from the Metropolitan Police website):
22-30 days paid annual holiday, depending on length of service. This is on top of public holidays and an average of two rest days per week.
In addition some Metropolitan Police Officers are eligible for annual housing allowances of up to £5,000.
The barrister gets none of this.
Moreover, the barrister has generally paid thousands of pounds for his or her own education and training, and generally starts work thousands of pounds in debt. The police officer (who requires no formal educational qualifications at all) is well paid throughout the training process.
And this is a comparison between a newly qualified police constable and the average barrister (which of course includes many able and experienced barristers who have been working for many years). The police officer can look forward to many years of automatic pay rises, even without promotion. The barrister cannot. If the barrister is very good, and very lucky, there is a chance that after many years he or she may eventually start to earn an income comparable to that of a Police Inspector, although still without the perks and fringe benefits. The chances of doing better than that at the criminal bar at present are almost vanishingly slim, and the government’s latest proposals are going to reduce them still further.
I am not in any way suggesting that Police Officers are over-paid. Theirs is a hard and difficult job. Many police officers risk, and sometimes lose, their lives dealing with dangerous and aggressive people. But many others have routine office jobs. They are paid the same.
This remorseless attacks on a profession that is still somehow providing an excellent service for a very reasonable price is going to be counter-productive. If barristers’ legal aid payments – and very similar arguments apply to solicitors too – are cut any more able people will simply stop trying to practise criminal law. Trials will become more and more of a lottery. The quality of prosecution lawyers will also fall. More guilty people will get off. More innocent people will be gaoled. The quality of criminal judges (who are drawn from the ranks of practising barristers and solicitors) will collapse and our once proud justice system will be ruined.
Probably some sort of criminal bar will survive. The very rich will perhaps be able to practise advocacy as a hobby. A few dedicated individuals may continue to practise out of a sense of duty. Some barristers will perhaps do the odd criminal case for nothing. And perhaps some sort of public defender system, or more likely a dirt cheap private system, will develop, rather as in America where – aside from a few glaring exceptions – the poor and uneducated are generally defended by either beginners or fourth raters. But it will be a tragedy.