There is much talk of strikes in the air at the moment, with wide and varied organisations planning to take industrial action on 30 November. In a different context it now looks as if they could be emulated by barristers.

As reported in the ‘Law Gazette’, the new chair of the Criminal Bar Association, Max Hill, has warned that criminal barristers will take direct action, including withdrawing their services, if the government presses ahead with its plans for price-competitive tendering. He told the Bar Council’s recent annual conference that “price competition is anathema to an independent, high-quality bar”, and would mark an end to a quality service and equality. He said that the introduction of price competition and the retention of an independent bar are mutually exclusive, and that the government is in ‘cloud cuckoo land’ if it thinks the system would present a level playing field on which the bar can compete. “Price competition is nothing short of an order that the bar disband and go into business with solicitors. Call it fusion, call it partnership, call it what you like. It is the end of the bar,” he said. He added that barristers are prepared to “act on principle, to safeguard the public interest which is served by an independent bar of specialist advocates….We can and must stand up and act.”

On taking office as chairman of the Criminal Bar Association in September, Max Hill stressed that criminal barristers play a vital role, both prosecuting and representing people charged with criminal offences, to ensure the criminal justice system works efficiently and fairly. He warned that, in this context, legal aid cuts could cripple the criminal bar. In addition, in an interview with ‘The Times’, he said that in the view of the Criminal Bar the imminent cuts to barristers’ fees, on top of serial reductions in preceding years, amounts to a very real threat to a fully functional criminal justice system.

Also reported in the ‘Law Gazette’ is that plans to introduce the Quality Assurance Scheme for Advocates (QASA) have run into serious difficulties. The Criminal Bar Association has been told by Max Hill that, amid a dispute about linking payment to accreditation level, progress on QASA has been halted so far as the CBA is concerned. He said that the scheme as proposed would lead to “a world in which the word barrister would have no meaning, and no place within the fee structure.” He added: “Proper reflection from all sides may produce a solution. It is in everyone’s interest to allow that solution to emerge.”

So it looks as if his year of office could be interesting. Urging his colleagues to remain united in the face of the challenges that lie ahead he said: “Tough times are undoubtedly ahead for the criminal Bar. But rather than allowing these issues to divide and depress us all, my mission must be to raise our chins from the floor. I have one key message for anyone who will listen: you can destroy the publicly funded Bar if you want, but you will want it back when it is too late to recover what you have lost.”

Very high cost cases (VHCCs) are those estimated to last more than 40 days at trial, or 25 days if involving complicated combinations of factors. Last year there were about 400 defendants funded by legal aid in 100 VHCC criminal cases at a total cost of £100 million. Defence teams are typically paid around £400,000 for such cases but costs in some, such as the Jubilee Line Fraud case, have run into several millions.

In an attempt to ensure best quality and value for the most expensive criminal legal aid cases, the Legal Services Commission established a very high cost cases (crime) panel due to run till July 2009. “We believe this panel offers real benefits to those signed up to it. They have the first opportunity to take on work worth in excess of £100m a year.” But, according to the ‘Guardian’, of the 2300 barristers invited to join only about 100 barristers and three QCs have so far signed up.

The sticking point would seem to be the capped fees offered. Under the new scheme, for preparation work a QC’s fees will range from £91 to £145 an hour, and for time spent in court a QC will get £476 a day. For a leading junior, the range is £79 to £127 an hour, with £390 a day for time spent in court. A junior acting alone will receive between £70 and £100 an hour, with £285 a day for time spent in court.

Peter Lodder, QC, senior criminal barrister and Chairman of the Criminal Bar Association, is reported in ‘The Times’ as condemning “these derisory levels of income…hourly rates do not encourage efficiency…a system geared to an efficient dispatch of justice should have an effective payment system.” At the heart of the dispute, he said, was the “driving down of fees to a level at which properly qualified people who have invested many years of training are simply not being properly remunerated”. As reported in the ‘Guardian’, he said that the full impact of the Bar’s boycott had not yet been felt but that the first serious trials requiring QCs were due to reach court in the new year.

The first setback for the LSC has already occurred,. The 17-year-old accused of shooting dead schoolboy Rhys Jones was left without a QC a month before the trial was due to start and his solicitor was working for free. The problem occurred because the Legal Services Commission initially insisted that the defendant’s lawyers worked for a fixed fee, but they have now made an exception and reverted to the old pay structure. The LSC’s director of high cost case contracting has acknowledged difficulties with forthcoming large trials, and there may have to be other exceptions in future.