The Ministry of Justice says it will fully consult on a new legal aid fee regime for immigration and asylum work after Labour urged the lord chancellor to rescind a temporary but controversial fee change.
The opposition has already tabled a ‘prayer’ to annul the Civil Legal Aid (Remuneration) (Amendment) (Coronavirus) Regulations, which last month introduced a £627 asylum fixed fee. This week, shadow justice secretary David Lammy, shadow attorney general Lord Falconer and shadow legal aid minister Karl Turner asked Robert Buckland to rescind the regulations and consult the legal sector on a new regime.
Labour’s letter, seen by the Gazette, reveals that Buckland told them his officials ‘were already engaging with legal aid practitioners on a future fee, as concerns had already been raised by practitioners under the old system, but this was urgently brought forward to aid practitioners sooner in the unprecedented situation of the Covid-19 pandemic’.
The Labour trio replied: ‘If the sector was engaged with on these changes prior to their implementation, there is clearly widespread feeling that the engagement was insufficient. Whilst we and practitioners in the sector accept the need for a rapid response to unprecedented circumstances, that response must not make the situation worse. What assessments were made of the impact of these fee changes before legislating?’
Buckland also told the shadow ministers that the amendment regulations were ‘likely’ to lead to a remuneration increase for legal aid providers. However, Lammy, Falconer and Turner said ‘likely’ was too low a bar by which to measure policy outcomes.
They added: ‘The most concerning element of the new regulations is their impact on those cases which exceed the fixed fee in value without reaching the escape fee for hourly rates. As has been widely highlighted, appeals in this category are very often complex cases, including victims of trafficking – the most vulnerable in society.’
Several anti-trafficking organisations have written to justice minister Alex Chalk expressing concern. The letter is signed by 22 organisations, including Ella’s, West Midlands Anti-Slavery Network, Helen Bamber Foundation, ATLEU, The Voice of Domestic Workers and Palm Cove Society.
They said lawyers ‘will be less likely to take on cases that are complex and demand more time, for people with complicated histories and vulnerabilities, as there is too great a risk that they will not be paid, and they cannot afford to take this risk’. Trafficking cases can be very complicated, often involving disclosing complex and traumatic events, and often involve translation, expert evidence, time and trust.
A ministry spokesperson said: ‘There will be a full consultation on these fee changes before they are finalised next year. The new, increased fee structure has been under consideration for some time and reflects the digitalisation of the tribunal system, which has allowed justice to continue to be done during the coronavirus pandemic.’
The ministry said immigration and asylum practitioners have been contacted regularly on the temporary changes and will be engaged through the consultation on what should replace them by June 2021. It said the new fee structure meant practitioners will be paid substantially more for their work per hearing than they are currently.