Harry Mount

Take it from a former barrister: Chris Grayling is right to reform legal aid

There’s only one problem with Chris Grayling’s legal reforms – they don’t go far enough

Take it from a former barrister: Chris Grayling is right to reform legal aid
Text settings

Shakespeare took it a little far in Henry IV, Part II, when Dick the Butcher said, ‘Let’s kill all the lawyers.’ Chris Grayling hasn’t made the same proposal but you could be forgiven for thinking otherwise, listening to the howls of anguish and indignation coming from the Inns of Court. Grayling, the first non-lawyer to be made Lord Chancellor since the 17th century, has simply said he wants to make some savings in the legal aid bill. To the lawyers, unaccustomed to having their privileges and subsidies challenged by anyone, this means war.

Already, 90 millionaire QCs — poor, impoverished Cherie Blair among them — have written a letter to the Telegraph attacking legal aid cuts for judicial review cases. A group of leading solicitors wrote to the Times to declare the reforms ‘an attack on the fundamental rule of law’. A retired Court of Appeal judge, Sir Anthony Hooper, has claimed that cutting this subsidy would destroy England’s ‘world-renowned’ system of fair justice. All of these bleating lawyers appeal to the need of society’s most vulnerable people for specialist legal advice.

It’s odd how these barristers never suggest cutting the ruinous cost of that specialist legal advice. At a time when Britain is flat broke — and most people are making savings — it is far from clear why QCs get vastly inflated fees from public funds to pay for Georgian terraced houses, Buckinghamshire country piles and children’s school fees. Barristers still benefit from the gilt-edged perks of the last great unreformed profession (I write as a former barrister). And now they fear that, for the first time in half a millennium, the rule of pampered, flattered lawyers may be coming to an end.

In his still-minor attempts to spring-clean the legal profession, Mr Grayling may kick off a revolution — one twitch on the thread and, fingers crossed, the whole moth-eaten brocade of the British legal system will come apart. Barristers don’t just hate Grayling for not being part of their fraternity. They hate him because he is exposing the overcharging charade they preside over and seems utterly unimpressed by their bluster about ending justice as we know it.

The lawyers much prefer their don’t-rock-the-boat insider Dominic Grieve QC, the Attorney General. Parliament is full of these legal insiders — of the 107 professionals voted in as Tory MPs at the last election, 56 were solicitors or barristers. Another 26 Labour MPs came from the legal professions. Just like it took two outsiders — Margaret Thatcher and Michael Gove — to take on the unions, it will take another to explode the cosy myths of lawyerdom.

A false equation has grown up over the slumbering centuries when barristers’ lucrative boondoggles have lingered on, largely unchanged. Because barristers wear old-fashioned clothes, work in handsome, 18th-century buildings and charge a fortune, they must be geniuses, or so the warped thinking goes. A few of them — like the late George Carman, who I worked for — are brilliant; in the same way there are a few brilliant writers, engineers and plumbers. But most barristers are intellectually ordinary, standard graduates — with one extra year of academic law training, or two, if they are non-law graduates.

There’s no reason why they should be paid any more than other graduates in less overrated jobs. But their high prices, and their dashing reputation, stoked up by Charles Dickens, John Mortimer and a million courtroom dramas, have conspired to produce this delusion of brilliance. It is a delusion many of them fall for themselves.

A few specialist areas — banking law, trust law, intellectual property — require brainiacs with Oxbridge firsts, who deserve to be well paid. Most of the rest of it is child’s play. Divorce, death and housebuying are straightforward enough — lots of us manage them with little difficulty — and so is the law associated with them. But over the centuries we’ve let a small group of not particularly gifted people monopolise the legal control of these routine, if crucial, acts.

It’s true there’s been a tiny chipping away at the barristers’ monopoly on addressing a court. More and more solicitors have rights of audience, a typically obscure legal expression implying there’s some peculiar, arcane gift needed to talk to a judge. Most things barristers do for hundreds of pounds an hour could be done as well not just by solicitors but by any intelligent person. Many of the things high-street solicitors do, too — conveyancing, divorces and wills among them — are a doddle, especially in the age of the internet.

I’ve just done my will for £15 online — with a few friends signing it — rather than pay a lawyer £1,000. In America, they’ve set up wevorce.com, an online legal company offering internet divorce packages for $7,500, rather than the US average of $27,000. Instead of our adversarial system, where two barristers and two solicitors bleed a couple dry, wevorce.com uses a single lawyer as a mediator, and provides the boilerplate legal documents online. At the click of a mouse, the staggering waste of money on solicitors, barristers and paperwork disappears.

Lots of civil cases in England could go down the same budget path, cutting as many overcharging barristers out of the equation as possible. And for ministers in the British government, who have been fooled by lawyers into taking their advice into everything they do, much could be saved with a clean sweep — sack all the government lawyers.

The barristers who wrote to the Telegraph were practically all QCs, or senior counsel, as they call themselves in their self-important letter. There’s no reason to split barristers from QCs, or solicitors from barristers, except to construct a false hierarchy which demands bigger fees the higher you climb the ladder.

It also produces a wicked duplication — or triplication, or even greater multiplication — of legal representation. If you visit a court’s public gallery, or, even worse, if you’re actually in court being represented, prepare to be horrified by the number of people on both sides. For a big case, each side will have junior and senior counsel and a couple of solicitors. Throw in the judge, and the costs rise to thousands of pounds an hour.

Big cases have months and months of preparation, too, with your barrister billing you crazy sums for basic jobs: hundreds of pounds for a phone call or to read a letter, even more to put finger to keyboard. Only this week it emerged that a bag-carrying junior barrister in the Leveson inquiry — Carine Patry Hoskins, who had a fling with Hugh Grant’s barrister, David Sherborne — was paid £218,606 of taxpayers’ money for 16 months’ routine work.

You’ll waste thousands, too, on conferences between solicitors and barristers to discuss the same set of papers — papers the solicitors will charge you to draft and the barristers will charge you to read. And best of luck if you try to complain about the way your case is handled. This week, the Legal Services Board declared that the Bar Standards Board, the barristers’ regulator, failed to reach satisfactory standards in every area it operates. Complaints go unresolved for years; two thirds of complainants said they were treated unfairly. But what are they going to do? Sue?

On top of your barrister’s voracious demands, the legal fees you pay also subsidise the ludicrously high costs of chambers. Barristers are essentially freelance, each renting a room. Charming as the Inns of Court are, you don’t half pay for the privilege of working there. Successful junior barristers don’t get much change out of £5,000 a month in return for a pretty office and the most antiquated appointments-booking system on earth: a room full of barristers’ clerks. In return for a hefty cut of the barristers’ earnings, clerks do little more than sort out their bosses’ fees and diaries, and carry papers to court — nothing a computer and a big trolley can’t do.

But then it’s not the barristers that pay for all this in the end. You do. It’s bad enough if it comes out of your own pocket but at least you’ve chosen to waste your money like this — well, you have if you’re the claimant or petitioner; there’s no such choice for the poor old respondent or defendant.

Even worse if it’s the poor old taxpayer who’s on the hook for a legally aided case. Like all free money, it’s sprayed around like there’s no tomorrow, because the only person who isn’t represented in the lawyer-packed court is the taxpayer. There’s no one around to cut costs, no one to insist each side should be represented by a single solicitor, let alone a magical lone lawyer for both sides, as used by wevorce.com.

No surprise, then, that the number of state-funded cases has soared. In 1974, just 160 applications for judicial review were made. By 2000, it was 4,250. By 2011, it was 11,000. Legal aid has been massively abused by vexatious litigants — and there’s always a salivating barrister waiting at the cab rank to take the taxpayer for a ride.

Scams have proliferated, many of them under legal aid. Under the last government, anyone wanting to stop a school becoming an academy tracked down an unemployed person to register a spurious complaint, and then claimed legal aid: one team of taxpayer-funded lawyers sued the government; another lot defended them. The complications of European law — jamming up the well-oiled, cheaply run cogs of ancient British common law — have added to the feeding frenzy.

Chris Grayling is trying to staunch the flow of taxpayers’ cash, and time-wasting cases, by introducing new tests and conditions to get access to judicial review. He hoped to slice £220 million from the government’s £2.1 billion legal aid budget, and would withdraw it only from people with disposable incomes of more than £37,500 — that is, after they’ve paid tax, national insurance, mortgage, council tax, childcare and living expenses. Grayling equates that to people earning gross incomes of over £100,000. Hardly unfair.

In Bleak House, Dickens gives a vivid description of the English legal system in 1852. The Court of Chancery, he said, ‘so exhausts the finances, patience, courage, hope, so overthrows the brain and breaks the heart, that there is not an honourable man among its practitioners who would not give — who does not often give — the warning “suffer any wrong that can be done you rather than come here!”’ In 2013, there is a reason barristers rarely go to law themselves; why married divorce barristers rarely get divorced, however much they hate each other. They know what an overpriced, agonising racket the British legal system is.

To remedy this is the real prize awaiting Grayling. It’s time to reform the whole profession: cut fees, dissolve the distinction between barristers and solicitors, and make it much more common for people to represent themselves. Legal aid should be just the start. It is time to give the entire legal profession the spring clean it so richly deserves.

Listen to Harry Mount debate this article with pupil barrister Greg Callus on this week's View from 22