David Gauke, the justice secretary and Lord Chancellor, has admitted that the Ministry of Justice (MoJ) is feeling “a little frustrated” by the direct action taken by criminal law barristers over legal aid fees.
Speaking to peers on the House of Lords constitution committee yesterday, Mr Gauke also admitted his concerns about the danger posed by populism to the rule of law and promised to speak out on the issue.
Asked for his response to research exposing the lack of young criminal lawyers and the refusal by barristers to work under the new advocates’ graduated fees scheme (AGFS), Mr Gauke said: “Obviously this action is taken in the context of the AGFS scheme.
“We feel a little frustrated by this, because this is something that predates my time and was revised after close consultation with the legal profession, including the Bar Council and Criminal Bar Association.”
Mr Gauke said it was important for the government to review the 2013 legal aid reforms contained in LASPO as “some difficult decisions” on legal aid were made, but he did not want to “pre-judge” the outcome.
“Applicants for legal aid in the Crown Courts are overwhelmingly getting legal aid and the support they should do in the way they did previously. We don’t have large sums of money available to us.”
It was suggested on social media that the reason most applicants for legal aid receive it was because many others knew they would not succeed and did not bother applying.
Mr Gauke said Britain had been successful since the Industrial Revolution because it had a “trusted” legal system, and this attribute must be “at the fore” if it was to be successful in the future.
He said the rule of law was not only “important for protecting our liberties” but at the heart of the country’s economic success.
“There is a degree of populism that is either not sympathetic to those values or finds the constraints the rule of law might impose difficult.
“Those of us who believe in the rule of law need to articulate its importance and centrality not just to our liberty but to our prosperity.”
Challenged by the former Lord Chief Justice, Lord Judge, as to why he did not speak out as a cabinet minister in defence of the judges accused by the Daily Mail of being “enemies of the people” in the wake of the Miller ruling, he agreed that all cabinet members had a duty to uphold the rule of law and the Lord Chancellor a “unique responsibility”.
He said it was now his duty to be “out there defending the value of the judiciary and its importance” and described as “dangerous” media discussions which undermined the legitimacy of the judiciary.
If there were similar headlines in the future, the Lord Chancellor said he would “make the case” for the judiciary and consider summoning newspaper editors to the MoJ.
Asked about the £1bn court modernisation programme and whether getting rid of 6,500 court staff by 2022 would help the reforms, Mr Gauke replied: “The measure of success of a public service is not the number of people it employs.”
He said the MoJ was in “regular conversations” with the Treasury over funding for court maintenance and improvements and a survey was under way to assess “longer-term needs”.
He declined to give a date for the reintroduction of a Courts Bill to implement those parts of the reform package requiring primary legislation.
“I am keen to make progress before much longer. I would urge a degree of patience.”
Shortly after his appearance, and in the wake of the parliamentary debate on criminal legal aid the day before, the Criminal Bar Association (CBA) recommended that its members “escalate” their current action – refusing new instructions – and institute a ‘no returns’ policy from 25 May.
The protocol published alongside the announcement said: “This will mean in the event that the instructed advocate is unable to attend his or her own hearings, due to diary clashes, trial overruns, warned list cases coming in, court ordered mentions etc, then they would return the instructions to their instructing solicitor.
“In the usual course of things, such a solicitor would simply ‘return’ this work to another barrister. With a ‘no returns’ policy in place, this will prove challenging.”
Since 2003, the cab-rank rule has not applied to graduated fee cases.
The CBA emphasised that remuneration levels were “only part of the general crisis” facing the criminal justice system.
“We repeat that the poor and vulnerable in society are being denied access to justice due to the continued onslaught of cuts.
“Members of the public are at risk of miscarriages of justice and the faith of the public in the jury system is being undermined by the chaos in courts. Access to justice is a critical part of a civilised democracy.”
Sets like Temple Garden Chambers, 1 Pump Court and 2 Harcourt Buildings have already come out in support of the CBA.
In a statement, Temple Garden Chambers said: “The criminal justice system is at breaking point and is failing victims, defendants and the wider public.
“Barristers undertaking publicly funded work have seen cuts of 40% to their incomes over the last 20 years, with current fees at a lower level than they were in 1998. The proposed reform of the AGFS scheme compounds those cuts and adds to them.
“Rather than being advantageous to the Bar as the minister claimed [on Tuesday], the new AGFS scheme is Doomsday for the profession…
“We call on the Ministry of Justice to show the goodwill promised by the minister in Parliament and to engage with the profession.
“In the absence of any such goodwill, we have no option but to refuse to cover returned work as of 25 May 2018.”