The Lord Chancellor is to launch an independently led review of the criminal legal aid system with the aim of improving its sustainability.
The Ministry of Justice (MoJ) also rejected criticism from lawyers that its policies adversely affect lawyers from Black, Asian and minority ethnic (BAME) backgrounds, women or any other groups with protected characteristics.
The news came as the MoJ confirmed it was pressing ahead with the proposals made in the first stage of the criminal legal aid review, which will mean an extra £35m-£51m for lawyers.
The Law Society described them as the first criminal legal aid fee increases for 25 years.
Under the changes, there will be new payments for litigators and advocates for reviewing unused material; additional payments for advocates with exceptionally high volumes of prosecution evidence, with payments made at an hourly rate; increased payments for advocates preparing Crown Court cases when a plea is given in the first hearing; and new payments for solicitors for the work they do ahead of sending cases to the Crown Court.
Following a consultation, the MoJ has increased the amount it will pay under the last of those categories from two hours’ worth of work to four, and will make payment under the magistrates’ court scheme.
Writing in the consultation response, Lord Chancellor Robert Buckland said the ministry had fast-tracked consideration of these aspects of the existing fee schemes in isolation, “to enable the delivery of quick wins ahead of the comprehensive review where the fundamental principles of the fee schemes could be considered in the round”.
The next phase of the review will involve “an independently led review that will be ambitious and far reaching in scope, assessing the criminal legal aid system in its entirety, and will aim to improve transparency, efficiency, sustainability and outcomes in the legal aid market”, he said.
“It will consider working practices and market incentives and how these can drive efficient and effective case progression and deliver value for money for the taxpayer. Planning is in progress and I plan to launch it as soon as possible after Parliament returns.”
Consultees told the government that, despite the monetary increases provided by these changes, the low level of fees across the advocates and litigators graduated fee schemes disproportionately affected BAME and female members of the profession.
The response paper noted: “The consensus was that low remuneration is having a detrimental effect on the sustainability of the profession which results in less diverse entrants undertaking criminal legal aid work.”
The London Criminal Courts Solicitors Association urged a London weighting to reflect the high proportion of BAME solicitors and partners in the capital compared to the rest of England and Wales.
A common theme was also the impact on junior advocates. “Several consultees noted that female and BAME advocates are represented more heavily in this group as compared to QCs, for instance.
“The consensus was that these groups and the lack of significant increase in junior advocate and solicitor fees generally has an adverse impact on the pipeline for diversity as the lack of significant remuneration makes it harder for those with less independent wealth or those who have child caring responsibilities to make a reasonable living.”
But the MoJ pushed back at these arguments. “We do not believe that our policies adversely affect BAME individuals, women or any other groups with protected characteristics,” it said.
“Some legal aid practitioners will benefit more than others from the delivery of these proposals. In addition, it is possible that the legal aid practitioners who particularly benefit from the proposals might be more likely to share a protected characteristic.”
The ministry said it expected that junior advocates and solicitor advocates were more likely to undertake the work that will be impacted by these proposals than QCs.
The Law Society said the increases were “a small step in the right direction”, but “a giant leap in investment is urgently required if criminal legal aid firms are to survive”.
President Simon Davis said: “A profession which was already perilously underfunded before the pandemic – with defence firms sinking at an alarming rate – has been plunged into even choppier waters by Covid-19…
“The future of the criminal defence profession is at stake and there is an urgent need for further government investment.”
As of last month, there were 1,146 firms holding a criminal legal aid contract, 125 fewer criminal legal aid firms than in 2019 and 735 fewer than existed a decade ago.
Mr Davis said he welcomed the independent element of the government review: “It should not be the paymaster who dictates whether what they pay is sustainable.”
Bar Council chair Amanda Pinto QC said: “This money is desperately needed and long overdue for criminal legal aid barristers… We are pleased that, at last, barristers are paid for work they are obliged to do to prepare cases properly for court.
“Nonetheless, the rates of pay must be revisited as part of the wider independent review, which we look forward to engaging with, to ensure the sustainability of this vital provision. Without further support from the government we fear that this great public service will disappear.”