The criminal defence community cannot absorb any more legal aid fee cuts, the Law Society and practitioner groups have told the government, which this week suggested that it will press ahead with controversial proposals.
The Law Society, Legal Aid Practitioners’ Group, Criminal Law Solicitors’ Association and London Criminal Courts Solicitors’ Association yesterday issued a joint position statement opposing the Ministry of Justice’s proposals to reform the litigators’ graduated fee scheme (LGFS).
The organisations have made 10 joint representations to the Ministry of Justice and Legal Aid Agency.
They say: ‘We do not agree that any further cut in fee income is capable of being absorbed by the profession and therefore oppose the imposition of an 8.75% cut across the board or the proposed cap on pages of prosecution evidence.
‘We believe that the imposition of either cut will damage the supplier base and provides a very real threat to access to justice. The net effect of the damage will see an increase in cost to the taxpayer thus negating any potential savings.’
A second 8.75% fee cut was suspended for 12 months in April last year. However, justice minister Sir Oliver Heald said the lord chancellor was minded not to reinstate the second fee cut. This would be confirmed once the government considered the responses to the consultation, which closes on 24 March.
The ministry proposes to reduce the threshold for pages of prosecution evidence (PPE) from the current cap of 10,000 pages to 6,000 pages. It also wants to cap court appointees’ costs at legal aid rates.
The Society and practitioner groups say there should not be a link between the proposed second fee cut and LGFS spend.
They say they cannot support what amounts to a 75% cut in rates payable to court-appointed advocates. They argue that the ministry has failed to consider, in its impact assessment, the effect such a cut will have on victims of crime or prosecution witnesses. It will also deter firms from accepting such ‘high risk work’.
Earlier this week the LAA, publishing a consultation and fee cut update, said PPE ‘is no longer seen as the most effective way of assessing how much work a litigator needs to do on individual cases’. In the short term, it wants to lower the upper limit for counting PPE.
With regards to payments to court appointees, the agency said the government view ‘is that these higher rates cannot be justified’.
The Society and practitioner groups say it is ‘inappropriate, unfair and unreasonable’ to require litigators to absorb the impact of the ‘LAA’s failure to properly interpret the PPE regulations when the court was simply correcting an injustice created by the LAA’.
With the nature of cases being prosecuted changing, ‘it follows that prosecuting such cases will create an increase to expenditure in every department. It is fundamentally wrong to expect legal aid practitioners to absorb this’.
LGFS spend should not be considered in isolation, they add. ‘The number of very high cost cases [has] decreased considerably together with the spend which has been absorbed into the LGFS payments. All or part of the increase may be attributable to cost cutting and policy change instigated by the LAA themselves.’
They say the consultation renders the government’s desire to restructure LGFS payments in the long term impossible. Any restructure would involve a redistribution of fees that the MoJ and LAA are seeking to cut. ‘Until such time as the consultation and/or proposed cuts are suspended or withdrawn any long-term restructure is superfluous,’ they say.
The statement concludes: ‘Any further cut threatens the sustainability of all firms regardless of size or structure. It therefore follows that a line must be drawn as the profession cannot absorb any more cuts.’