CRIMINAL LAW COMMITTEE UPDATE: BARRISTER LEGAL AID STRIKES

This will no doubt have an effect upon the courts’ ability to clear the significant backlog of around 58,000 cases currently awaiting trial in the criminal courts. The CBA say that the action is necessary to ensure that there is a sustainable and diverse profession able to serve the criminal courts in the future.

Solicitors undertaking legally aided criminal cases are in a different position to barristers, as they are unable to refuse to work under the terms of the criminal legal aid contract. Their choice is much starker – either to do the work on terms imposed by the government, or to refuse to undertake such work at all. Nevertheless, many solicitors will be carefully considering whether to sign up to new criminal legal aid contracts, set to commence by the end of the year.

In order to understand how this situation has come to be, it is necessary to take a brief look at the recent history of criminal legal aid funding, and the current government’s reform proposals that have triggered the action by the CBA.

Time-based fees paid to solicitors and barristers were almost entirely replaced in the 1990s and early 2000s by a scheme of fixed fees. These fixed fees were originally based on the notional average times spent on different cases, based on rates set (and not increased since) the 1980s. Rather than increase over time, along with the hourly rates in other areas of work, these fixed fees have instead been cut by successive governments, both in absolute and real terms. For example, in 2014, the government implemented an 8.75% cut of all solicitors’ fees, despite independent research that showed that the market was too fragile to sustain such a cut. A further cut of 8.75% in July 2015 was implemented but later suspended by the government. Even more damaging reforms proposed since then have been successfully resisted as a result of action by the professions.

A deeper analysis of these issues can be found in my Committee’s evidence to the Justice Select Committee, during their enquiry into the sustainability of legal aid in 2020. In summary, both solicitors and barristers practising criminal law face an existential threat as a result of the significant underfunding of criminal legal aid, with very few new entrants into the profession and many barristers and firms exiting the market.

In December 2018, Sir Christopher Bellamy was appointed by the then Lord Chancellor to lead an independent review of criminal legal aid (CLAIR). His final report was published in November 2021. Its central recommendation was that funding for criminal legal aid should be increased, as soon as possible and as a bare minimum, to an annual level of 15% above present levels.

This central recommendation was welcomed by my Committee, and indeed by most practitioners and representative bodies, reflecting as it did our serious concerns about the sustainability of the criminal legal aid market, and the profound constitutional impact of the failure of that market.

We anxiously awaited the government’s response to the independent review, which came nearly four months later, on 15th March. The response took the form of an extensive consultation document, which set out the various proposals both for fee increases and wider reform of the market.

The BLS Criminal Law Committee, in responding to that consultation, observed that the government’s response fell significantly short of addressing Sir Christopher’s central recommendation. Rather than a 15% increase in legal aid funding, the government’s own impact assessment predicted an average 9% increase in the fee income received by criminal legal aid solicitors by 2024. So, not immediate, and not 15%. It was self-evident that such a modest increase in fee income would not enable private providers to offer salaries that would compete with those being offered by the Crown Prosecution Service. Nor could firms compete with the terms offered by practices in other areas of the law.

The additional concern is that the rates offered will not be sufficient to enable firms in this sector to bring about the extensive change required to improve efficiency in the criminal justice system.

In addition to falling short of the minimum amount recommended by Sir Christopher, the Government’s response did not reflect the urgency with which the funding increase is required. My Committee also made representations that the proposed increase in fees will only apply to new legal aid orders, not to existing ones. Given that practitioners are only paid at the conclusion of a case, this mean that solicitors and barristers will not benefit from the increased fees in many new cases until 2024 or beyond, when those cases can be listed for trial by the Crown Court. Practitioners are doubly affected by delays in listing, in turn exacerbated by the pandemic and the government’s delay in applying the proposed uplift in fees.

A further major concern expressed by my Committee, and other professional bodies, is that the 15% minimum increase recommended by Sir Christopher could not have taken into account the extraordinarily high current rate of inflation – around 11% at the time of writing. It is quite possible that the bare minimum increase of 15% now falls short of what is required.

We are living through a crucial period for the future of criminal legal aid. The government’s actions in the coming months will determine whether there is a viable market for criminal legal aid services in the future. The importance of those services is far more significant than simply securing representation for those accused of crime: it extends to the functioning of our criminal justice system as a whole, to safeguarding victims and witnesses, and ultimately to protecting the society in which we live.

The issue does not affect those in the defence community alone. Many members of BLS who are colleagues at the Crown Prosecution Service have raised their concern about the impact of insufficient funding as on the future viability of a robust defence community. It is in the joint interest of players in the criminal justice system to ensure that defendants are properly represented.