The claim
“The average criminal bar barrister working full-time is earning some £84,000.”
Shailesh Vara, Minister for the Courts and Legal Aid, 6 January 2014
The background
They didn’t want to call it a strike. But criminal barristers staged a walk-out at courts up and down the country today for the first time in the recent history of the profession.
It’s a sign of anger among m’learned friends at the government’s proposals to slash £220m from the legal aid budget over five years.
Barristers doing taxpayer-funded work on the lengthiest, costliest cases face cuts of up to 30 per cent. The fees for other Crown Court work could be reduced by up to 18 per cent.
In a previous FactCheck we found that the total spend on legal aid is actually falling, although we still pay lawyers more to defend people accused of crimes than other countries – if you accept it’s possible to make a fair comparison.
The crux of the argument today was over how much barristers earn. The government has released figures suggesting a small number of advocates are taking home six-figure sums.
But various lobby groups have argued that the real remuneration for criminal work is so paltry that it will force talented graduates out of the profession. Who’s right?
The analysis
It’s difficult to say how much criminal barristers get paid, because most are self-employed, and we’re not aware of a definitive survey of average earnings.
Anecdotal evidence suggest that top QCs can be handsomely rewarded, while those who have just entered the profession can find themselves in dire straits financially.
Nigel Lithman QC says he has been in contact with a barrister in her second year of practice whose taxable income was just under £14,000.
The anonymous Lincoln’s Inn barrister who writes this blog says she took home about £10,000 last year, bitterly concluding: “I would quite literally have been better off on benefits.”
Of course these could be extreme examples. What about average earnings?
We can’t do any better than the ad hoc statistical analysis produced by the government last week on the money the state pays out to barristers for criminal work.
At first glance, it would seem that six barristers got more than half a million pounds each from the public purse in 2012/13. That’s six individuals out of 4,931.
Some 1,275 barristers – about a quarter – were paid more than £100,000.
The mean average payout (total amount of money divided by number of people) was £72,000. But mean averages are skewed by outliers – like the small number of very high earners. The median average – the mid-point – was £56,000.
Mr Vara complicated this slightly today by coming out with a figure for average earnings of £84,000.
This, we are told, represents those who work full-time on legal aid cases only, taking out people who only do a small amount of taxpayer-funded work.
The methodology of this is obscure, but the “full-time” figure has the handy effect of stripping out the very lowest earners and bumping up the average.
It probably doesn’t matter very much, because whichever average you prefer – £56,000, £72,000 or £84,000 – the number doesn’t actually represent money the barrister takes home.
The government statisticians who compiled these figures made it clear that they “must be interpreted carefully and do not represent the personal earnings of the individuals listed in any one year”.
The amounts paid may relate to work “covering many years”. The sums could represent money paid to one barrister who is then obliged to share some of the cash with his learned friends.
The figures include VAT, which barristers have to pay back to the Treasury. That’s 20 per cent we can chop off for a start.
Then there is the long list of professional overheads barristers are obliged to shell out: rent paid to the chambers where they have their offices (perhaps several hundred pounds a month); clerks’ fees; practising certificate fees; travel; insurance; wigs; gowns; textbooks.
We could go on for some time, and then we would have a figure from which you have to deduct tax, and one which does not include sick pay or holiday pay.
Nigel Lithman QC, chair of the Criminal Bar Association, starts with the government’s own median fee of £56,000 and cuts it roughly in half to get to around £27,000 as an estimate of average earnings, the same figure mooted by the Bar Council.
That happens to be almost exactly the average UK gross income. Junior barristers not lucky enough to scoop a bursary or grant are likely to have tens of thousands of pounds worth of debt hanging over them when they enter the profession.
The verdict
The figures the Ministry of Justice have stressed this week seem decidedly dodgy. The department specifically said its figures should not be used to represent actual annual earnings – a fact which which seems to have been forgotten.
Even if you do want to use the figures, once you take away the many overheads self-employed advocates have to pay you are left with a middling sum of money.
Compare the £12,000 minimum salaries many pupil criminal barristers with the £60,000 offered to graduates by some top commercial law firms, and warnings of a brain drain do not seem far-fetched.
Having said that, we are yet to hear a clear explanation of why the legal profession can’t do more to ease the hardship of people at the bottom of the pile, if it is so worried about them.
And in mitigation, we ought to point out that there has been some spin about salaries from the other side too, with lawyers quoted by the BBC today saying they were “not prepared to work at hourly rates lower than the national minimum wage”.
This appears to be based on selecting some of the very lowest daily rates the government published last summer, in which junior counsel could get as little as £14 a day as part of a complex total pay package.
But the proposals were revised in September. An MoJ spokesman told us: “There is no proposal in September’s consultation that would allow the tapering system to go anywhere near as low as £14 a day.”
The department is keen to point out that no final decisions about how the cuts are managed have been made yet.
