A furious war of words has erupted over the latest plans to cut barristers’ fees in family cases. The disclosure this week of an imminent government paper aimed at recouping £12 million through a 15 per cent cut in the gross legal aid fees barristers earn has prompted a predictable but still heartfelt outcry from the family bar.

Lucy Theis, QC, who chairs the Family Law Bar Association, says that the fresh onslaught on fees will hit some of the most vulnerable children in society — those involved in care proceedings — at a time when there already concerns that local authorities will be deterred from seeking care orders because of the new court fees of £4,000 a case.

“The protection of children is a concern to all of us,” she said. “There is often no second chance when children are at risk of harm. At a time when senior family judges are publicly raising concern that the system is creaking at the seams, the Legal Services Commission [LSC] seems intent on putting it under increasing pressure — children, parents and the administration of the courts will suffer.

“The removal of a child from his or her natural parents by the State has rightly been described as one of the most draconian orders that can be made. It is the parents and children with no voice who will be left with either no representation or no experienced representation when the State wants to take their children into care. It is that stark.”

What has particularly angered barristers is the way that the news emerged — through a media briefing. They accuse the LSC of not having the courage publicly to announce “this latest assault on legal aid” and operating through “drip-fed information to the press”.

Then there are the figures used. They want evidence for the commission’s claim that there has been a 14 per cent increase from 2005 to 2006 in the numbers enjoying more than £100,000 annual earnings (gross, before overheads, etc). A spokesman for the Bar said: “We are looking at the data but we think the true average figure is in the £35,000 to £40,000 region — it all depends of the type of work and the amount done.”

Added to this, there is confusion over figures quoted by the LSC at the media briefing. An annual gross earnings figure of £140,000 was cited: this, a spokesman has since clarified, was not a figure of average earnings but a gross figure up to which some barristers earn.

Perhaps most infuriating of all to the Bar, the commission maintains that it is now trying to recover a pay rise that should never have been awarded in the first place. Family barristers, according to Crispin Passmore, the commission’s policy director for civil legal aid, had secured rates of pay from the Lord Chancellor in 2004 that gave them a 4 per cent pay rise.

“The reason this was done was because of anecdotal evidence that barristers would leave family legal aid work without that increase,” he said. The commission had now conducted an analysis which showed that this was far from the case and that the numbers of barristers had increased.

“With the benefit of hindsight we now see what actually happened and there are more barristers taking on this work — and charging more for it, even though it is the same work,” he said.

Mr Passmore also rejects the idea that the move might lead to inexperienced barristers doing work of critical importance. “I have every confidence in solicitors choosing barristers who are qualified and competent to do a case and also in barristers not taking cases beyond their ability or competence,” he said.

Belle Turner, a family law barristers, member of the Bar Council, Family Law Bar Association and Young Barristers Committee, says she had received an “absolutely overwhelming” response to the suggestions about barristers’ earnings and news of further cuts. “If they make the changes suggested we shall not be able to continue in practice.”

In a letter that has attracted 60 signatures from junior barristers, she says that they are “saddened” that the commission is throwing around figures in “an attempt to justify further drastic cutbacks to family legal aid . . . before any formal proposal has been put out for ‘consultation’,” the letter says.

“A standard family legal aid case pays £130 for a two-and-half-hour hearing with four hours’ preparation. A junior barrister has to pay his or her travel costs from this fee [if the journey is less than two hours long] and pay anywhere between 15 and 25 per cent in chambers expenses from that sum, before any deduction for income tax.”

Mr Passmore had commented that “we are not talking about the minimum wage” while hitting out at the family bar, she added. “But junior earnings for legally aided work alone are frequently less than £50 take-home pay for an eight-hour day.”

Family lawyers survive by cross-subsidising work from private cases, she adds. They cannot survive doing legal aid alone. And the work is among the most important and harrowing at the Bar, being complex and emotionally charged.

Ministers have been forced to set out their position. In a letter to The Times today, Lord Hunt of Kingsheath, the legal aid minister, points out that barrister-advocates are paid much more than solicitor family-advocates for the same work. “We want a fairer system, where they are paid the same, regardless of whether the advocate has a background as a solicitor or a barrister.”

Ministers also want value for money: the proposals come as spending from the legal aid budget on childcare cases has increased by 24 per cent between mid-2003 and mid-2004. But 29 per cent of the costs relate to additional payments — extras that can be charged on top of the standard rate, Mr Passmore maintains. This meant that the average cost of children’s care cases had gone up by 20 per cent and by 11 per cent for contact cases.

Carolyn Regan, chief executive of the Legal Services Commission, says: “We spend £2 billion a year on legal aid of which a substantial proportion is on family work — £500 million, split roughly half and half between public [care] cases and private family cases.”

The commission had a responsibility, she said, to ensure that the public had the best access to legal services possible and good value for money.

That might mean fewer lawyers providing a service but providing a better service in terms of hours and facilities, she said. At present 2,735 firms were offering family legal aid work, of which 50 per cent were doing 80 per cent of the work. “There is no shortage of lawyers wanting to do this work: we recently held a tender and had seven times the number of bids than work available to offer.”

Barristers at least have the judges on their side. A family High Court judge, Mr Justice Coleridge, says that the “family justice system . . . is being mismanaged and neglected by government” and giving warning that such low rates of pay will see family lawyers “disappear from the high street and they will never come back”.

An appeal judge, Lord Justice Wall, says that “we are getting more and more litigants in person” . . . because “lawyers are simply not doing publicly funded children work because they can’t make a living out of it”.

The problem is the straitjacket on the nearly-broke public sector. There is no more money in the pot for legal aid — whether criminal, family or civil. The cuts being made in the name of efficiencies could well damage the service provided but by the time a shortage of skilled lawyers to do the work (solicitors as well as barristers) is apparent, it will be too late to restore a quality service.

The commission has postponed the implementation of some of its changes until 2010. In the meantime, rather than foment hostility with fresh cuts, it might be better to answer the Bar’s call for a wider dialogue on radical reform — not just on the immediate fee rates — but on the system as a whole, and on funding such cases in the future.

Public scrapping over such a crucial service is unedifying. Of course the commission must eliminate opportunities for barristers needlessly to charge extras or exploit the rates to the limits. And no: compared with some of the public officials who may look enviously at their fees, barristers are far from earning the minimum wage. But should they be, given the importance of the work and skill required?

Savings can and have rightly been made to what was once a legal aid gravy train. But the limits of good housekeeping may have now been reached.

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