The Bar Council has said it is broadly in favour of the Ministry of Justice’s plans to restructure the Advocates’ Graduated Fee Scheme (AGFS) in criminal cases but warned that it should be ‘closely monitored’ to ensure advocates do not lose out on fees.
In a consultation response published this week the council said AGFS should be ‘more closely aligned to the level of difficulty and amount of work involved in advocacy of criminal defence cases’.
However, it warned that its support for restructuring ‘does not mean that it considers the rates proposed are adequate’.
The council said many barristers and chambers had undertaken their own calculations comparing the fees paid to them under the current scheme with the fees that they would be paid under the proposed scheme – and that many calculations had shown a fee cut.
‘Concern has been raised as to whether the new scheme would indeed be cost-neutral. What is clear is that there should be ongoing reviews of the scheme by some method, so that adjustments can be made in the light of experience,’ the council said.
According to the council, one suggestion could be for the old scheme to run in parallel with the new scheme for the first six or 12 months.
‘After that period it would be possible to compare the total of the two calculations and adjustment be made as necessary,’ it said.
The council warned that while advocates’ fees have historically been cut there has been further erosion to their value as a consequence of inflation.
‘It is therefore essential that any new scheme includes index-linking to prevent future erosion of the real value of those fees by inflation,’ the council said.
The council said research commissioned in October 2013 found that between 2007 and 2013, AGFS fees ‘reduced by 21% in cash terms equating to 37% in real terms’.
‘Another four years of inflation since 2013 means that those figures will be even worse today. This is an unsustainable situation and urgently needs rectifying,’ the council added.
The MoJ’s consultation paper, released earlier this year, states that the current scheme ‘relies too heavily’ on pages of prosecution evidence (PPE), served by the Crown Prosecution Service, as a means of deciding how complex individual cases are and how much a defence advocate should be paid.
The new proposal would introduce a ‘more sophisticated system’ of classifying offences, based on the typical amount of work required in each case. PPE will continue to feature in drugs and dishonesty cases.
Some elements of the fee would be ‘unbundled’, with fixed fees for specific elements of a case, for example, separate fees for up to six standard appearances.
However, the council’s response said it would prefer for every standard appearance to be separately paid because that is ‘consistent with the principle of payment for work done’.
After the proposals were published the Gazette reported that The Law Society had expressed concern that the plans would see QCs receive a pay hike while junior barristers and solicitor advocates would lose out.
An impact assessment document with the ministry’s consultation paper states that the total expenditure on self-employed QCs would increase by around 10%.
The council addressed this in its response and said it would also be responding to a separate MoJ consultation on the Litigators’ Graduated Fee Scheme to ensure access to justice.
‘It is important that the LGFS be rebalanced to properly reward litigators for the early stages of case preparation. The Bar Council notes the MoJ consultation on LGFS and intends to respond to that consultation by the 24 March 2017 deadline.’