MOJ CONSULTATION PAPER CP 18/09
This is the response on behalf of the Midland Circuit to the Ministry of Justice consultation paper “Legal Aid: Funding Reforms”. This document reflects discussions between and the views of many criminal practitioners on Circuit, including some who principally prosecute, as well as those who mainly defend and the majority who have a mixed practice.
The response concentrates on the proposal in respect of the Advocates Graduated Fee Scheme. We have not directly answered questions 4, 5 and 6. Such is the lack of detail in the so-called Consultation Document – no detailed figures, no costing, no impact assessment – that it is impossible to do so in an informed way.
Graduated Fee Scheme
Compared with many other areas, the Graduated Fee Scheme provides an effective and efficient tool for the controlling of public expenditure.
The first GFS scheme came into effect on 1 January 1997. The fees prescribed in 1997 were based on payments made in cases in 1995.
The initial scheme applied to trials not exceeding ten days - the vast majority of trials.
In 2001 the scheme was extended to cover trials up to 25 days in length. The intention of the Government was that this change should be cost neutral. In fact, the effect was a reduction of fees in 11 to 25 day trials of up to 20%.
Also in 2001, at the same time as the scheme was extended to cover 11 to 25 day trials, fees for many one to ten day trials were significantly reduced from the rates originally prescribed in 1997. The basic fee for cases of sexual offences, for example, was reduced by 10%. This reduction was imposed despite the fact that the work load in such cases had increased as a result of recent legislation and rule changes. The reduced fees were introduced at about the same time as there was (quite rightly) increased public and political demand for work of this kind to be conducted by advocates of particular experience and sensitivity.
In 2004 the scheme was further extended to cover all trials of up to 40 days duration. At the same time, there was some improvement in the fees for 11 to 25 day cases, to put right the unintended reduction of three years before.
This increase lasted for little more that a year. Cuts were introduced on 1 October 2005.
The overall effect for most cases of trials in the Crown Court was that fees first prescribed in 1997, based on 1995 figures, were reduced in 2001 and never increased.
The combination of inflation and an ever more complex process created by Government inspired legislation and rule change meant that there was an obvious case for review.
2005-2007: Lord Carter's Review of Legal Aid Procurement
In July 2005 the Department for Constitutional Affairs (as it then was) announced a review of the legal aid system: “A Fairer Deal for Legal Aid”.
In the Forward to the review document Lord Falconer of Thornton, the Lord Chancellor and Secretary of State for Constitutional Affairs, wrote that:
“The reforms will ensure that, like other mainstream public services, publicly funded legal advice and representation delivers for the public. This means guaranteeing that the taxpayer gets value for money from those who provide services with legal aid money. And it means targeting resources on people who most need it…”
To achieve this worthy ambition, it was announced that Lord Carter of Coles would “conduct an independent review of how such reforms could be delivered.”
Many practitioners were sceptical. Some declined to work at rates which most regarded as unreasonably low.
The Bar Council and Circuit Leaders encouraged cooperation and patience. Lord Carter's "Review of Legal Aid Procurement" took a year to complete. Many practitioners made a huge commitment to the process. Lord Carter, in a covering letter to the Lord Chancellor, expressed his gratitude “for the immense support and co-operation” of the Bar Council, the Law Society, practitioners and others. Further, Lord Carter emphasised the need for “a new co-ordinated and collaborative approach … a broader theme that will require reinforcement by [the Lord Chancellor] and the rest of Government … All parties must make a fresh start, with a new relationship based on openness and co-operation”.
Lord Falconer welcomed Lord Carter’s report and the MOJ/LSC have pressed ahead with implementing his recommendations.
Lord Carter recommended increases in the fees for most one to ten day cases. Plainly, Lord Carter regarded the new rates as no more than reasonable and proper remuneration, necessary to ensure quality representation.
For the most part, the effect of the increase recommended by Lord Carter was no more than to redress the effects of inflation on the original 1997 rates.
The increases did not cost the public purse any more in real terms. The increased fees for junior counsel in the majority of short cases were funded, in part, by a voluntary reduction in rates for QCs and, in part, by savings on the small number of very high cost cases, with even more of the longer cases being brought into the graduated fee scheme.
From the Government perspective, the revised Advocacy Graduated Fee Scheme was at worst cost neutral. It was designed with the objective that advocates would receive a slightly reduced share of a slightly smaller overall budget.
The new rates came into effect for new cases as from 30 April 2007. It was the late Autumn / Winter of 2007 before the new rates became the norm.
2009 Consultation Document
On 20 August 2009, the Ministry of Justice published a consultation paper entitled “Legal Aid: Funding Reforms”
It is asserted that:
· As a result of the Carter changes, fees for prosecution counsel are on average 23% less than the fees for the defence.
· The Crown Prosecution Service “has not reported any difficulty in obtaining advocates of sufficient quality as a result of the fee differential”.
· Therefore defence rates should be reduced to about the level of prosecution fees.
In the Forward, Lord Bach states that this latest review is prompted by the need of “efficiencies” and “to ensure that legal aid is prioritised effectively” - similar euphemisms and jargon which were said to be at the heart of the 2005 Review which led to Lord Carter’s report.
However, Lord Bach adds that these proposals “represent policy changes which … are necessary, irrespective of economic circumstances”. In other words, it is proposed to tear up Lord Carter’s reasoned scheme for increased fees for advocacy in the Crown Court.
Just two years after the Carter reforms were implemented, the Government has broken its word.
The consultation document gives a false representation of recent events.
The Crown Prosecution Service was closely concerned in the Carter process. A member of the CPS was seconded full time to Lord Carter’s review team, (one of eight full time staff).
The intention was that prosecution fees should be increased to reflect, at least in part, the Carter increases. Just days before Lord Carter's report was published, the total spend "envelope" was reduced, at the behest of the Government / Director of Public Prosecutions – with the specific
intent that the CPS might be better able to increase fees along the lines of the Carter reforms.
For two years, negotiations between the Bar and the CPS have continued – albeit somewhat sporadically and in more straightened economic circumstances.
While discussions have continued, most practitioners have naturally continued to conduct prosecutions at the old, inadequate rates. Government Ministers would have been the first to criticise the Bar had anyone refused to prosecute pending the outcome of the current discussions. Even so, it is undoubtedly the case that some able practitioners have drifted away from prosecuting, to concentrate on defence work.
Further, great caution has to be exercised before proceeding on the basis of unattributed assurances from the CPS that all of their advocates are of “sufficient quality”. Ask any seasoned judge or experienced practitioner about the use of in-house advocates and it will be clear that all is not well.
Now to propose swingeing cuts in fees, which are no more than reasonable rates, on the ground that barristers have been prepared to continue to prosecute for fees which are widely regarded as inadequate, is disingenuous and unprincipled.
The proposal lacks any sound basis.
· Prosecution fees are said to be on average 23% less than defence fees. No figures are provided to justify or confirm this suggested average. Where does it come from? Is it provided by or confirmed by an independent statistician? The so-called Consultation Document is wholly devoid of any detailed figures or calculations.
· With a suggested average of 23%, it must follow that for some classes of case the proposed reductions would be more than 23%. This could reduce fees to a level lower than in the mid-1990’s. Yet, like so many other areas of work in this era, the job has become more complex and burdensome.
· In any event, until the review of prosecution fees is concluded, no proper comparison or assessment can be made.
· The proposal is uncosted. There is no indication, not even in the broadest terms, of the total sum involved.
· There is no indication as to how any sums saved might be re-applied elsewhere.
· There is no impact assessment. This is particularly troubling. Publicly funded work is the traditional route into the profession for many women, BME barristers and generally those from a less well-off background. There is already a serious problem with reduced recruitment to the criminal Bar. These reforms could have profound consequences. Some will cease to practice. Some Chambers on Circuit could disintegrate. Faced with financial pressures and a crisis of morale, many Chambers will cease to recruit.
· Part of the Carter reforms was to shift to Chambers much of the administrative burden. This came at a cost. The Bar was prepared to accept this as a price worth paying if finally, after more than ten years, some fees were to be increased. It is now proposed that the increases are to be swept way, but the cost, the administrative burden on Chambers, is to remain.
The Bar has a fine tradition of cooperating with Government in devising and implementing necessary reform. The concept of a graduated fee scheme was developed for the Government by the Bar. GFS has provided the Government with predictable and controlled expenditure on an important public service - qualities so manifestly lacking in many other areas of public expenditure. But this has done nothing to stem an incessant barrage of review, reforms, consultations, change and change again. What does all this cost? So much time, effort and money expended, not on prosecuting or defending cases, but on endless reviews and re-organisations.
The MOJ press release of 20 August 2009, announcing the latest reforms, asserted that “the proposals intend to make better use of the criminal legal aid budget, reform and rationalise payment structures and sustain legal aid for the next 60 years”. A steady state for 60 days would be welcome; but even that is too much to ask.
On 11 September 2009 the LSC announced tendering for the 2010 Criminal Contract. Because of the terms of your document, this has had
to be deferred. Likewise the BVT pilots. Was this appreciated when this consultation document was published?
The proposed reneging on the Carter rates is ill-considered. Lacking any proper details, costing and impact assessment, this is not a genuine or meaningful consultation.
Gareth Evans QC Greg Dickinson QC
Leader, Midland Circuit Chair, Consultation Committee
No. 5 Chambers 1 High Pavement Chambers
Fountain Court, Steelhouse Lane 1 High Pavement
Birmingham B4 6DR Nottingham NG1 1HF
Tel: 0845 210 5555 Tel: 0115 941 8218
Fax: 0121 606 1501 Fax: 0115 941 8240
25 October 2009