The lord chancellor is willing to drop a second proposed cut in fees for criminal legal aid practitioners – depending on the profession’s response to government proposals to slash fees elsewhere. The Law Society has condemned the latest proposed cuts.
A second 8.75% fee cut was suspended for 12 months in April last year. However, publishing a consultation on litigators’ graduated fees schemes and court appointees today, justice minister Sir Oliver Heald said the lord chancellor 'is minded not to reinstate the second fee cut… while targeted and modernising fee reforms are taken forward’.
'We will seek to confirm this once the government has considered the responses to this consultation,’ he added.
In the short term, Heald said the government needed to address two areas where the current system 'does not ensure taxpayers' money is best used to reflect fair payment for work reasonably done'.
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.
An accompanying impact assessment document states that legal aid providers conducting cases with at least 6,000 pages of prosecution evidence would receive around £26m to £36m less for LGFS payments.
The ministry also wants to cap court appointees’ costs at legal aid rates. An appointee is used where a defendant is banned from personally cross-examining a particular witness. Appointees are currently paid their 'proper fee or costs'. The ministry says court appointee costs can be four or five times higher than legal aid rates.
The LGFS in the Criminal Legal Aid (Remuneration) Regulations 2013 remunerates litigators for Crown court work. The current scheme was introduced in 2008.
In the 2015-16 financial year, the government spent £341m on cases that completed in the LGFS.
The impact assessment states that, in recent years, there has been a ‘steep increase’ in cases with high PPE levels, which has increased the scheme's overall expenditure.
The document states that this follows a costs judge decision that broadened the circumstances in which electronic evidence could be paid as PPE. ’This was not the policy intention and neither this decision nor the resultant cost was foreseen. Intervention is necessary to better scrutinise work reasonably and actually undertaken,' the document states.
Responding to today's consultation, James Parry, chair of the Law Society's criminal legal aid committee, said: 'These cuts are unnecessary and ill-timed, given the long-term project to reform the litigator fee scheme, which will ultimately remove reliance on the pages of evidence which are creating this problem.
'The Society will be working with the MoJ on this longer-term project and we believe that it is unwise to impose short-term cuts on the scheme before that project has even started.'
Chancery Lane commissioned Oxford Economics to follow up a 2014 report looking at trends in legal aid expenditure. The latest report, the Society said, demonstrates that the ministry is on track to make further savings in the criminal legal aid budget without any further rate cuts.
Parry continued: 'The firms most likely to bear the brunt of these cuts are the larger firms on whom the government depends to deliver a criminal defence service. The result could be that the government fails to meet its statutory obligations to ensure everyone accused of a crime has representation where required - a fundamental aspect of the rule of law and rights of citizens.
'We recognise that the MoJ has concerns about the use of paper as a proxy for determining fees in the Crown court. With so much evidence now being video or data evidence, we have long shared those concerns. This is why we lobbied the Legal Aid Agency to start discussions about revisions to the LGFS to reflect the reality of Crown court cases today.
'It is deeply disappointing that the MoJ is making ill-considered ad hoc changes to the scheme when those discussions are ongoing and making good progress.'
The LGFS consultation closes on 24 March.