The government’s proposals to modernise legal aid fees for advocates could jeopardise the long-term sustainability of the criminal justice system, the Law Society has warned. Warning of bankruptcies and 'advice deserts', Chancery Lane said that the Ministry of Justice’s proposals to change legal aid payments for Crown court advocates are likely to be a massive disincentive to solicitors who undertake criminal cases.
The ministry’s consultation on reforming the advocates’ graduated fee scheme closed yesterday.
The scheme, which was last reformed in 2007, pays criminal defence advocates legal aid for representing those accused of crimes in the Crown court.
Legal Aid Agency spend on publicly funded criminal defence advocacy in the Crown court under the scheme was around £213m in 2014/15. The ministry says the latest proposals are designed to be cost-neutral and should provide more certainty for advocates about their fees.
However, Society president Robert Bourns said analysis conducted by a large number of barristers’ chambers and law firms which undertake work in the Crown court show that the junior bar and solicitor-advocates will be considerably worse off under the proposed scheme.
One London firm has estimated it would suffer a 28% cut in its AGFS fees. The Society understands this will be fairly typical for other firms in the capital.
Bourns said: 'Well-paid QCs will benefit from a pay increase, meanwhile advocates towards the bottom of the payscale will either stay the same or receive much smaller increases.
'The ministry has based the proposals on a flawed notion of “case mix” which does not exist. The proposals would not promote compliance with ongoing initiatives such as Better Case Management.’
The Society’s response includes shocking estimates calculated by some firms and chambers should the ministry proceed with its proposals.
Bourns said: 'This is a dedicated workforce which has not received a fee increase since 1998. There is a significant risk that firms who undertake this work, which includes dealing with highly vulnerable people, will go bankrupt, risking localised market failure and advice deserts, and jeopardising the administration of justice.’
Chancery Lane has suggested a ‘relatively minor’ structural amendment, which is included in its response.
‘If our suggestions are not adopted, it would be preferable to retain the present scheme, but only with a new funding order that changes other parameters,’ the Society said.
Meanwhile the Criminal Bar Association, in its response, said it did not advocate a position in favour of or against the proposals, adding that parts of the proposed scheme require 'substantial amendment'.
Highlighting 'significant' issues, the association said the budget for criminal legal aid is inadequate, index linking is essential to avoid a further erosion of fees, and cracked trials and elected cases are not adequately remunerated in the proposals.
The association also fears the proposed fees are inadequate for junior members.