12.As observed by the former Minister of State for Courts and Justice, the Rt Hon Oliver Heald QC MP, “[t]he rule of law is the basis on which a fair and just society thrives”; it is “underpinned by an independent judiciary, and expert advocates defending those accused of a crime in open court.”11 The right of access to legal advice has been recognised by the courts as closely linked to the common law right of effective access to a court;12 as well as being a fundamental common law right in its own terms;13 and central to a democratic civilised society.14 In addition, Article 6 of the European Convention on Human Rights gives a person accused of a criminal offence the right to legal representation “to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require.”15 The operation of our criminal legal aid scheme must be viewed in this legal context.
13.The rules governing entitlement to criminal legal aid are set out in the Legal Aid, Sentencing and Punishment of Offenders (LASPO) Act 2012 and in Regulations under that Act.16 Determining whether someone qualifies for criminal legal aid involves applying a financial means test and an “interest of justice” test; the more serious the criminal charge, or the consequences for the accused, the more likely it is that they will qualify for legal aid.17 Most legally aided advice and representation for defendants is provided via payments from the Legal Aid Agency18 to solicitors’ firms and the independent Bar—although there is also a small Public Defender Service, part of the Legal Aid Agency.19
14.Before the introduction of fixed fees under the Litigators’ Graduated Fee Scheme (LGFS) in 2008, criminal legal aid payments were calculated very differently. Under the Legal Aid Act 1988, payment for work in the Crown Court was based on the time reasonably spent in conducting any particular case. The rates were similar to those paid to lawyers prosecuting cases on behalf of the Crown and slightly lower than fees paid by private (non-legally aided) clients. The Act allowed for remuneration rates to be annually increased in line with inflation. Richard Miller, Head of Justice at the Law Society, explained to us:
At the time, the rates paid under legal aid were a little bit below the rate paid for private work. The basis of that was that it was Government funding and therefore guaranteed, so some discount was considered reasonable, but it was broadly commensurate with the returns from private work.20
15.However, as Mr Miller went on to state, criminal legal aid payments for solicitors have had no inflationary increase for 20 years and have also been subject to significant reductions, leading to a situation where according to his estimate “legal rates are probably, at most, a third of the rates paid for private work.”21,22 Daniel Bonich, Vice-Chair of the Criminal Law Solicitors’ Association, estimated that there had been a cut of about 42% in real terms since 1997; and “[t]hat is without taking into account the actual cuts, such as the most recent 8.75%.”23 [see paragraph 19 below]
16.In 2008, the previous method of calculating legal aid payments for Crown Court work based on the amount of work carried out was abandoned in favour of a Litigators’ Graduated Fee Scheme (LGFS), which is a fixed fee model;24 a separate fixed fee scheme was introduced for providing legal advice at the police station and for magistrates’ court work.25 Under the LGFS, litigators are paid a “graduated fee”, determined by “proxies”: the type of case, the offence type, trial length and the number of pages of prosecution evidence (PPE). An important change introduced by the LGFS was that defence solicitors could no longer make a claim for an uplift payment for work that required particular diligence.
17.In addition, the LGFS no longer permitted any separate payment for reviewing unused prosecution material, as this work was considered to be wrapped up within the graduated fee. Under the previous regime, if a defence solicitor had spent time considering unused material, provided they could justify to the Legal Services Commission26 that the work was reasonably done, they would receive payment.
18.Daniel Bonich accepted that the LGFS saved on administration costs for the legal aid scheme, and that, for criminal defence solicitors, there was “a degree of certainty that comes in from fixed fees because you know pretty early on what you are likely to be paid.”27 However, he also thought that the LGFS had significant disadvantages for practitioners:
As much as anything, it is the lack of any uprating. It is a lack of flexibility to reflect changes in practices; for example, the amount of unused material and the amount of digital material has ballooned massively … .
19.In 2013, the MoJ put forward controversial proposals for competitive tendering of duty solicitor contracts, restricting participation in the duty legal aid rota;28 these contracts would have allowed a limited number of firms the chance to represent new entrants to the criminal justice system.29 The MoJ modified these proposals following a successful judicial review by solicitor organisations, but implementation of a revised scheme was delayed after 99 separate legal challenges to the procurement process, preventing the start of the contracts. In 2014, the MoJ imposed an 8.75% reduction in LGFS fees as part of the phased implementation of a 15% fee cut; the second reduction of 8.75% was planned for the following year. In January 2016, the then Lord Chancellor, Michael Gove, announced that the new contracting model would be abandoned and that the second 8.75% reduction in fees would also be suspended.30 However, as we discuss below, this was to be followed in 2017 by proposals for major revisions to the LGFS.
20.Like the LGFS a decade or so later, the Advocates’ Graduated Fee Scheme (AGFS) had been introduced in 1997 as a fixed fee model for legal aid remuneration for criminal defence advocates in the Crown Court; such advocates are generally barristers, but may also be solicitor advocates—that is, solicitors who are qualified to represent clients at hearings in the higher courts, usually called Higher Court Advocates (HCAs). Prior to the introduction of the AGFS, payment for criminal advocacy—as for criminal litigation work—was based on an individual assessment of the work that had been undertaken in any particular case; this would be carried out by the Legal Services Commission, the precursor to the Legal Aid Agency.31 The AGFS determined fees through a complex formula, taking into account the type of advocate; the nature of the offence; the length of trial; the number of pages of prosecution evidence (PPE); and the number of prosecution witnesses. The scheme “bundled” certain hearings into the graduated brief fee, rather than paying for them individually, with additional daily attendance fees for longer trials only.
21.Andrew Walker QC, the Chair of the Bar, explained to us in oral evidence that, originally, the AGFS:
… .applied only to cases where the trial was going to be between one and 10 days—the less significant cases. Four years later, in 2001, it was extended to trials up to 25 days. When that change was made, there was a commitment to cost neutrality, which is a term that has become, and is currently, contentious.32
Mr Walker went on to tell us that, in 2004, the Government accepted that the 2001 restructure of AGFS fees had actually led to an unintended cut; it agreed to amend the AGFS rates, but not sufficiently to take account of inflation. At the same time, the AGFS was extended to include trials of up to 40 days and, in 2005, all rates for Queen’s Counsel (QCs) were reduced by 12.5%. In 2007, following publication of Lord Carter’s review of legal aid procurement,33 fees were increased by 18%—although this was 8% less than the rate of inflation since 1997, estimated to be 26%.34
22.Following a 2009 consultation on reforming the AGFS, the MoJ implemented a staged reduction in the fees paid to defence advocates, with the aim of bringing them more closely in line with fees paid to advocates representing the Crown Prosecution Service. AGFS fees were reduced by 4.5% per annum with effect from April 2010 for a three-year period—a 13.5% reduction in total. The MoJ’s 2013 Transforming Legal Aid consultation led to an initial decision to implement a new, simplified, version of the AGFS that would have further reduced barristers’ fees by, on average, 6%.35 In response to this announcement, the leadership of the Bar introduced a “no returns” policy and organised days of action. Mr Walker explained the context in which the Bar had decided to take action:
… our assessment, statistically, in 2013 was that the cuts just from 2007 to 2013 had been 21% in cash terms and 37% in real terms based on the CPI. For some cases, it was even more. For the mid-range dishonesty cases there were cuts of 60% in real terms over that six-year period. 36
23.On 27 March 2014, criminal barristers called off their action after reaching a deal with the MoJ to suspend cuts until after the next general election in May 2015. The then Secretary of State for Justice, the Rt Hon Chris Grayling MP, was reported as commenting on that day:
Following constructive discussion with leaders of the bar and Law Society, we have agreed further measures to help lawyers as they prepare for legal aid savings. In return the leaders of the bar have dropped their objection to working at reduced rates on very high cost cases, and have agreed to call off their action to disrupt courts. An efficient and fair criminal justice system—both for the public and people that work within it—is my top priority, and I believe this agreement is a positive step forward.37
24.Mr Walker told us that this marked what was effectively a truce between the Bar and the Ministry of Justice: “it was that truce that kept action at bay until now; the truce was the backdrop to the new scheme being formulated and, in due course, brought into effect.”38 As we note below, the Government continued to engage constructively with the Bar in the formulation of a new AGFS scheme, modifying its proposals to take on board responses to its consultation; however, these modifications have failed to address all the Bar’s concerns.
25.In Chapter 3 and Chapter 4 of this report, we consider in turn the recent changes to the LGFS and to the AGFS, and the reaction of the legal professions to these changes.
12 R (Daly) v Secretary of State for the Home Department [2001] UKHL 26; per Lord Bingham of Cornhill, paragraph 5
13 R v Shayler [2002] UKHL 11; per Lord Hope of Craighead, paragraph 73
14 R (Daly) v Secretary of State for the Home Department [2001] UKHL 26; per Lord Cooke of Thorndon, paragraph 30
15 Article 6(3)(c), European Convention on Human Rights
17 The “interests of justice” test involves considering factors such as the person’s previous convictions, the complexity of the case, the nature of the offence and the possible consequences of conviction - for example, the risk of imprisonment, the risk of losing one’s livelihood or consequences for personal reputation. Cases tried in the Crown Court are deemed to satisfy the test.
18 The Legal Aid Agency is an Executive Agency of the Ministry of Justice. It is led by the Director of Legal Aid Casework, appointed by the Lord Chancellor under section 4 of the LASPO Act 2012.
19 The Public Defender Service, established in 2001, undertakes litigation and advocacy in all types of criminal cases. It operates from offices in Cheltenham, Darlington, Pontypridd and Swansea.
24 The LGFS does not apply to Very High Cost Cases [VHCCs]. A case designated as a VHCC must be conducted by accredited VHCC providers. Under current arrangements, the defence team (solicitors and advocates) for a VHCC will be assigned a dedicated case manager in the Legal Aid Agency who negotiates with them as to what work they will do under an individual case contract.
25 Fixed fees were introduced for Crime Lower work, which includes work at the pre-charge and police station stages, in the magistrates’ courts and for prison assistance; these are the relatively high volume, lower cost units of criminal legal aid.
26 The Legal Services Commission, a non-departmental public body sponsored by the Ministry of Justice, administrated the legal aid scheme from 2000 until it was abolished in 2013.
28 Transforming legal aid: delivering a more credible and efficient system. Ministry of Justice, April 2013
29 Of the 1,500 firms that had had crime contracts, only 527 were awarded the new ‘duty’ contracts; for the remaining firms, their contracts would be restricted to “own client” work.
30 Following further consultation, a new criminal legal aid contract was introduced from 1 April 2017 and over a thousand providers were awarded contracts, most of which are for both ‘own client’ work and duty solicitor work.
31 The Legal Services Commission, established under the Access to Justice Act 1999, replaced the Legal Aid Board in 2000.
33 Legal Aid: A market-based approach to reform. Lord Carter of Coles, July 2006
35 Transforming Legal Aid: delivering a more credible and efficient system, CP14/2013. Ministry of Justice, April 2013.
Published: 26 July 2018