Instruments drawn to the special attention of the House
Criminal Legal Aid (Remuneration) (Amendment) (No. 2) Regulations 2018 (SI 2018/1323)
Date laid: 10 December 2018
Parliamentary procedure: negative
The level of fees paid to lawyers, particularly junior advocates, under the Criminal Legal Aid Scheme caused contention for most of 2018. These Regulations, introducing Scheme 11, appear to address many of the concerns raised by the profession. The Explanatory Memorandum states that a wider review of criminal legal aid fee schemes is due to begin in January 2019.
These Regulations are drawn to the special attention of the House on the ground that they give rise to issues of public policy likely to be of interest to the House.
2.This instrument has been laid by the Ministry of Justice (MOJ) and is accompanied by an Explanatory Memorandum (EM) and an Impact Assessment. The specific details of the fee to be paid for each activity are set out in a separate document which the Regulations bring into effect from 31 December 2018.2
3.These Regulations amend the Advocates’ Graduated Fee Scheme (AGFS), which is the fee scheme through which criminal defence advocates are paid for carrying out publicly-funded work in the Crown Court. On 1 April 2018, the Government implemented a reformed AGFS (Scheme 10) with the intention of more fairly remunerating the work done.3 It was not well received, with advocates refusing to take cases and organisations representing the legal profession stating that it was causing a recruitment crisis, because junior lawyers were not being paid enough to compensate them for the amount of work required.
4.The MOJ proposed further revisions (Scheme 11) in a consultation exercise in August 2018, but following the strong views expressed by advocates in their responses, these Regulations include two key changes to the version of the scheme consulted on which proposed to add £15 million in spending compared to the baseline of the 2016–17 AGFS caseload and spend data. First, the Government will add a further £8 million to the pot, making a total of £23 million; this additional spending will be focused on fee increases for work typically undertaken by more junior advocates. Second, the Government decided to bring forward the proposed 1% increase to all fees, from April 2019 to the coming into force date of Scheme 11, so that advocates will benefit from this increase from the start of 2019.
5.Both the Bar Council and the Law Society have welcomed the revised scheme and hope that it will form a constructive basis for further dialogue about the future structure of the AGFS. The Government recognise that there is scope to improve further the way Crown Court defence advocates are paid to reflect the work that they do. However, the EM states that this will require further assessment, including the collection of new evidence and data, which will form part of a wider review of criminal legal aid fee schemes that is due to begin in January 2019.
2 Ministry of Justice, Banding of Offences in the Advocates’ Graduated Fee Scheme (AGFS) Version 1.2 (December 2018): https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/762989/banding-offences-agfs-v.1.2.pdf [accessed 2 January 2019].
3 Through the Criminal Legal Aid Remuneration (Amendment) Regulations 2018 (SI 2018/220) and the Ministry of Justice, Banding of Offences in the Advocates’ Graduated Fee Scheme Version 1.1 (February 2018): https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/683445/agfs-banding-of-offences.pdf [accessed 2 January 2019].