The Unmentionable Fee

In my previous post about the AGFS consultation I promised I had more thoughts to share about it. And whether you want them or not, here are some more of those thoughts….

If you spend any time hanging around robing rooms (and thanks to floating trials and/or it being a cheaper way of keeping warm on a winter’s day I tend to spend a lot of time hanging around in robing rooms) then you will hear some common complaints from criminal practitioners. We complain a lot about not being paid for the second day. We moan about doing mentions for free. We really moan about paying people to do our mentions in other court centres whilst we do the second day of a trial for no additional payment. And never ask counsel how much they are being paid for a sentence hearing. 

I have no doubt that the working group who had input into the draft scheme had these sort of moans very much in mind. And they have tried to rectify them. Again it is important to remember that this is moving money around the pot. So the money for the second day’s refresher sees brief fees reduced. The current brief fee included an amount for the second day and fairly directly the money has now been split into two. Which is morale boosting to know that your second day does actually attract its own reward but is one of the reasons why we now look at the fee for the first day, the brief fee, and say “really?” That has a definite knock on effect when it comes to cracked trial fees but that is a whole separate blog (I bet you can’t wait).

It is proposed to pay for the first six standard hearings in a case under the new scheme. We are told that it is only a very small number of cases that have more ancillary hearings that this. I must confess it is not entirely clear how exactly the seventh mention should be remunerated, save for the fact that it is going to come out of the graduated fee, albeit at no specified rate. 

I would suggest that mentions for the purposes of onward remands which are required by statute should be remunerated as being outside the standard appearance regime (including hearings related to custody time limit applications). 

But at least we are getting paid for those first six standard appearances. That should silence the moaning mention miseries in the robing room. We are going to get £60 a pop. Which is nice. 

It is not, however, as nice as the £100 we got for such hearings in April 2007. Or the £96 we got in April 2010. Or the £91 we got in April 2011. Or the £87 that we have been paid for such hearings since April 2012. I know the pot is staying the same but that kind of feels like a pay cut. In fact it looks like a pay cut. It sounds like a pay cut. And it is a pay cut for the Junior Bar who are not swanning around picking up brief fees left right and centre but will, in the early days, often only do “standard appearances” for days on end. It is a pay cut based upon cut upon cut. 

I know that junior practitioners will do mentions and standard appearances for days on end because that is what I did when I was first on my feet. And I was getting £45 per mention back then so at least £60 is a bit of an improvement. Except it isn’t. Because I did my first £45 mention in 1993. And in today’s money that equates to £64.09. So I am getting paid less for those standard appearances than when I was a pupil. That is time travel that Doc and Marty McFly would be impressed by. 

I am not dependent on standard appearances for my income but for the very most junior it will be an important part of their income. And it is being slashed to the bone here. And serves as a perfect example for the general depletion of fees over the years. 

This is not the fault of those from the Bar Council, the CBA and the Circuits who have tried to come up with a better scheme. This is a result of the fact that those who control the overall level of fees have cut and cut again. This latest redistribution of the pot only serves to highlight that we are trying to stretch a sandwich sized piece of cling film over a football pitch. Every time we try to adequately cover one square inch we expose acres. 

The £60 mention fee, less than we were being paid 24 years ago, simply highlights that they stated intentions of the scheme – to provide payment that matches work and feeds the young barrister – is impossible to achieve if the size of the pot remains the same. 

Once upon a time, Andrew Langdon QC tweeted “And what we need to do is work together in resisting dual contracts and winning a rise in the summer of 2015”. He is now Chairman of the Bar. Dual contracts are in the long grass with most of Grayling’s output. But it is now heading towards the spring of 2017. Our voices of complaint should not be against those who have worked hard to design a modern scheme that reflects how evidence is served. Our voices of complaint should echo what the Chairman had to say in in that Tweet in March 2014. 

If the Government want a sustainable scheme, if they want the cost savings that removing PPE undoubtedly bring, then they should reward our contribution to the design of the scheme with more money. It is plain and simple. We should not work at these rates. 

So answer the consultation. Make your suggestions. But I respectfully suggest that your submissions should make the case for more money. And that you begin to press those in positions of inlfuence, power and organisational control to make the case with you. And to invite such people, those who lead our profession, to be in a position to lead us in a fight to obtain proper remuneration, with everything that entails. 

2 thoughts on “The Unmentionable Fee

  1. mmchgeorge99

    I agree that our anger at the shortcomings of the AGFS should be directed at those responsible for the endless rounds of cuts that have characterised recent “amendments” to the grad fee scheme, namely the MoJ. However, as Jamie points out the current Chairman of the Bar called for a pay rise back in early 2014. Then in October 2015 when the Bar Council announced its proposed scheme which has now been adopted by the MoJ, it included a demand for “a fair and permanent mechanism for reviewing of the operation of this Scheme”. No such mechanism is contained within the consultation document. All of which leaves me more than a little perplexed as to why when this consultation was launched the proposed scheme was supported by the BC, the Leaders of the Circuits and the Criminal Bar Association. One of the worst features of every version of the AGFS we have had since 1996 has been the lack of a review mechanism. As a result each version devalues the fees year by year. The Bar leadership is not responsible for the cuts we have endured but they are responsible for protecting the interests of their members and they should not be supporting a scheme that does not provide adequate reward for the hard work done in the public service by the criminal Bar. Our leaders should be insisting that there can be no deal without (a.) a pay rise, for the reasons Jamie sets out and (b.) the review mechanism the BC was originally calling for. Without both features the new scheme will be as worthless as all the previous versions. So when you make your submissions, please do, as Jamie suggests, make the case for a pay rise but at the same time argue too for the review mechanism that is an essential component of a worthwhile scheme and make sure you tell the Bar leadership that you expect them to settle for no less.

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  2. kevin hennessy

    I am afraid its the same old problem in my view. We are the legal profession, but as long as the Bar and Solicitors negotiate independently of each other, we will continue to face cuts. I am astounded that we continue to make the same mistakes year after year. We engage with the MOJ in the way that we engage with an imbecilic client – politely, but patronizing. Only the MOJ are aware that we are doing this and use it to their advantage. They know that we lack the courage or conviction to do what is needed to stop this attack on our fees. We were terrified to use the actual word ‘strike’, but hid behind the nonsense of ‘training days’ and the Bar & Solicitors stabbed each other in the back. Even now we are told to engage with the consultation, but what is our bottom line? what do we do if it is rejected?

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