The government yesterday defeated a Labour attempt to annul the legislation changing the scheme through which criminal defence advocates are paid for carrying out publicly funded work in the Crown Court, which has led to over 100 chambers declining instructions.
Voting the motion down by 300 to 252, Conservatives repeatedly questioned why barristers were protesting against the reformed advocates graduated fee scheme (AGFS) when they had offered praise after it was initially published.
However, there was also recognition that the criminal Bar needed greater support as there was a serious risk of reversing advances in social mobility and diversity by returning to a situation where only those with private wealth were able to qualify.
Shadow Lord Chancellor Richard Burgon said the aim of the motion was to make the government “think again and listen to people who have been backed into a corner”.
He argued that introducing a flat fee for the vast majority of cases would discourage lawyers from undertaking complex cases.
“The scheme fails to recognise the growing work required to deal with the increasing amount of evidential and unused material. Advocates are expected to consider that material without specific payments, however much additional material is served.
“That is especially worrying, given the fact that a series of trials, including rape trials, have recently collapsed because of failings in the disclosure of evidence.”
Labour MP Bambos Charalambous, a former housing solicitor, said: “AGFS spending has fallen by 40% since 2010, and given that the new scheme proposed in the regulations is meant to be cost-neutral, this is surely just a case of rearranging the deckchairs on the Titanic.
“The fact that the views of the Criminal Bar Association have not been listened to also leads me to conclude that the scheme is a sham, and exists purely to deliver cuts for the government.
“The minister and others have claimed that this scheme is an improvement on the previous one, but an improvement on a terrible, failing scheme which makes it into a bad one is, for criminal barristers, no improvement at all.”
Justice minister Lucy Frazer paid tribute to the work of criminal defence barristers, but continued: “This scheme was put together in close co-operation with the Bar leadership. Secondly, the scheme does not bring in a cut; at the very least, it is cost neutral, but it is more likely to give rise to an increase in expenditure, given that built into the calculations is a £9m risk of such an increase.
“Thirdly, the scheme is more advantageous to the Bar overall than the one it replaces, particularly for those at the junior end.
“Fourthly, a clear commitment was given at the time the scheme came in that the government would review it in 18 to 24 months. If, in the course of that review, legitimate concerns are raised about the system and a good case is made for investment, we will look at those proposals.”
She added that the cost of training was also affecting recruitment to the Bar. “When I went to the Bar, Bar fees for the course were £5,000, and they are now £15,000. Asking people to pay that sort of money is a barrier to access when the chances of their getting a pupillage and a tenancy are limited.”
She was supported by former Conservative Attorney General Dominic Grieve, who said: “The scheme was wanted by the Bar and it is clearly an improvement on the previous system. Granted there are very great difficulties with funds, but it seems entirely reasonable for the government to proceed with it.”
Bob Neill, the Conservative chairman of the justice select committee and a former criminal defence barrister himself, observed that “some of the things we are talking about have, I regret to say, always been there”, such as “the large quantities of unused material that people were never paid for reading”.
“I do think, however, that we should perhaps look at future designs of the scheme now, because of the issues we have found around disclosure… We need to look again at whether it is reasonable not to fund people for reviewing the disclosure in these cases.”
Arguing that the squeeze at the Bar started under the Blair government from 1997 onwards, he continued: “I am deeply saddened that colleagues and friends feel unable to accept work under the scheme. Is it perfect? No, I am sure it is not. Would it be better if more money could be found? Yes, I am sure that it would be. Is revoking the instrument going to solve that? No, I do not think it will. We need a much broader and maturely based debate about that…
“The most important things we need to do now do not include talking about the revocation of a scheme that could be improved. Instead, we must make the case for more funding for the criminal Bar.”
Alex Chalk, another former criminal law barrister, told MPs that the Bar’s protest was “not really about the intricacies of these specific provisions. Instead, it reflects years of pent-up anguish and frustration about the state of the criminal defence profession and, indeed, a profound sense of foreboding for its future”.
He noted that the government spent more money on welfare and pensions in two weeks than was spent on justice in a year, and more on the aid effort in Syria than the entire legal aid budget.
While opposing the Labour motion, he urged the government to look again at how to support the criminal Bar.
“I am not suggesting this is easy at all, but I want to make three simple points. First, if the criminal Bar falls over, the cost to the state will increase dramatically. The overheads involved in employing hundreds of barristers in a fully fledged public defender service will be extortionate and unaffordable.
“Secondly, the culture will change, and people will be far less likely to work after-hours and at the weekend. Thirdly, the sums of money required to secure the criminal Bar are modest. Barristers are not seeking wealth; they are seeking viability.”