A parliamentary attempt to derail the criminal legal aid reforms failed earlier this week. A motion proposed by the shadow justice minister Richard Burgon to scrap changes to the Advocates Graduated Fee Scheme was defeated by 300 votes to 252.
The Criminal Bar Association responded with an immediate pledge to ‘escalate’ their action ‘in order to show that we really have reached breaking point’. In a message to members, the group called on barristers to consider continuing to refuse instructions and operating a ‘no returns’ policy as well as taking part in ‘targeted days of action to highlight the crisis in the system’. Richard Burgon told MPs that as a result of the controversy around 100 chambers were now ‘in effect, striking’ and refusing legal aid work.
Lucy Frazer, parliamentary under secretary of state at the Ministry of Justice, made four points in defence of the government’s new arrangements. ‘First, this scheme was put together in close co-operation with the Bar leadership. Secondly, the scheme does not bring in a cut; at the very least, it is cost neutral… . Thirdly, the scheme is more advantageous to the Bar overall than the one it replaces, particularly for those at the junior end. Fourthly, a clear commitment was given at the time the scheme came in that the Government would review it in 18 to 24 months.’ Dominic Grieve, the former attorney general, also defended the arrangements saying that it was ‘wanted by the Bar and it is clearly an improvement on the previous system’. ‘Granted there are very great difficulties with funds, but it seems entirely reasonable for the Government to proceed with it,’ he added.
Richard Burgon argued that the reforms ‘fundamentally’ changed the way in which advocates were paid. ‘The vast majority of cases will now receive a flat fee for a case, so that a case with 250 pages pays the same as a case with 5,000 pages,’ he said. ‘A rape case with a single complainant and defendant will have the same fee as a rape case involving multiple victims and multiple defendants. That disincentivises lawyers from undertaking complex cases, which often require weeks of preparation.’
Citing hitherto unpublished research by the Ministry of Justice about unrepresented defendants (see LegalVoice here), Burgon noted that judges and prosecutors felt that those who appeared in court without a lawyer were more likely to be found guilty. ‘The legal system should not be skewed towards wealthier people,’ the MP said.
‘Everybody who wants it should have access to proper legal representation if charged with a criminal offence. Justice should be blind. It should also not be based on the depth of people’s pockets. We now have criminal barristers forced to take co-ordinated action in refusing to take up legal aid work because of changes to the Government’s funding scheme.’
The MP quoted the experience of one barrister who travelled 94 miles a sentencing hearing in relation to an assault on a baby. ‘The fee for that hearing is £60. £10 of that goes straight to my chambers as rent. I spent £33 on petrol and £6.30 on parking. The CPS do pay some travel—I think I’ll get £23.50 for this. Therefore, I come out with £34,’ he said. ‘… I don’t wish to sound ungrateful for my £34. I just can’t help but feel a little undervalued. I’ve been at the criminal Bar for nine years.’
The Tory chair of the House of Commons’ justice committee Bob Neill called for ‘a more honest awareness of the realities of remuneration’. ‘The press have something to answer for in that regard. It is all too easy to talk about fat-cat barristers and the occasional £1 million-plus fee, which usually relates to a case that lasted about 18 months and was of a highly complex nature. Those sorts of cases are not around any more, for a raft of reasons, and those reports wholly misrepresent the position of the vast majority of barristers, who are working on really modest take-home incomes.’
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