Fundamental rights to legal advice and representation for people accused of crimes are at risk, the justice select committee has warned, calling for a “comprehensive and independent” review of criminal legal aid.
MPs said there was “compelling evidence” of the “fragility” of the criminal Bar and criminal defence solicitors’ firms – a risk that “can no longer be ignored”.
In its report on criminal legal aid, published today, the committee said there was a common law right to legal advice and a right to legal representation for accused people under Article 6 of the European Convention on Human Rights.
Concluding that both these rights were at risk, MPs welcomed the decision of the Ministry of Justice (MoJ) to consider criminal law within the current LASPO review “as a first step in understanding the crisis that criminal legal aid is facing”.
However, they said findings from the LASPO review should be used to “underpin a comprehensive and independent review of criminal legal aid”.
The committee said its report was prompted both by high-profile disclosure failures and by the direct action taken by barristers protesting against the revised advocates’ graduated fee scheme (AGFS).
The committee said it considered it “regrettable” that the Bar felt compelled to take the action. Despite the government’s offer of £15m in additional funding for the AGFS and the Bar’s decision to accept it, many barristers felt “deeply unhappy” about the future.
MPs recommended that a system of annual reviews should be built into the AGFS, overseen by a panel including both criminal law barristers and solicitors.
They said solicitors had “serious grievances” about the litigators graduated fee scheme (LGFS), given the “absence of index linking for two decades, the 8.75% cut in fees imposed in 2014, and the recent reduction to the cap on pages of prosecution evidence”.
The committee said: “The Law Society’s judicial review of the government’s decision to revise the LGFS means that it would not be appropriate for us to offer comment on the details of the scheme at this point in time.
“However, we have received evidence indicating a worryingly high level of demoralisation among criminal defence solicitors and threats to the economic sustainability of criminal defence firms, with negative implications for the criminal justice system—especially for defendants.”
The committee said it was “regrettable” that the society had to resort to a judicial review and the MoJ should take “urgent steps to avoid this dispute having to be resolved by the courts”.
More generally, the committee was damning in its criticism of underfunding of the criminal justice system.
“We conclude that the underfunding of the criminal justice system in England and Wales threatens its effectiveness, and in doing so undermines the rule of law and tarnishes the reputation of the justice system as a whole.”
The committee recommended that the government undertake an “urgent cross-departmental review” of funding for all elements of the criminal justice system, including criminal legal aid and the Crown Prosecution Service, “with the aim of restoring resources to a level that enables the system to operate effectively”.
Christina Blacklaws, president of the Law Society, said: “Many lawyers no longer see a viable career doing criminal legal aid work, and it is difficult to attract newer members of the profession.
“The committee is right to call for a wider review of criminal legal aid regardless of the outcome of the legal challenge currently before the courts, given the extensive and compelling evidence of the crisis in the system.”
Andrew Walker QC, chair of the Bar Council, added: “This report shows clear and candid cross-party acceptance of what the legal profession has long been warning about – that years of savage cuts have led us to a crisis in criminal legal aid, which in turn threatens the future efficiency and effectiveness of our criminal justice system.
“We hope not only that this report signals a shift in political attitudes in parliament, but that it also leads to a decisive change in the attitude towards justice at the highest levels in government.”