MoJ lays out plans to open up and improve criminal legal aid market

MoJ: Private provision is not only solution

The government has set out its intention to remove barriers to entry to the criminal legal aid market and make the system “business-model neutral”.

Its detailed plans to reform criminal legal aid will also make it easier for CILEX lawyers to become duty ‘solicitors’, while the government’s Public Defender Service (PDS) will be expanded.

After announcing the headlines of its response to Sir Christopher Bellamy QC’s criminal legal aid review yesterday morning, the Ministry of Justice (MoJ) then published a consultation on its proposals as part of its formal response to the review.

There is a separate consultation on reforming the legal aid means test.

This all means that the promised pay rises will not take effect until October, despite Sir Christopher stressing the need for immediate extra funding.

The consultation said the current system reflected the historic structure of law firms and professions.

“The government believes that removing barriers to entry and making the legal aid system business-model neutral will help ensure that the right legal representation is available to everybody and assist in promoting greater diversity of practitioners.

“In the long term, this may include further support for practitioners who can carry a single case through to conclusion to support choice for defendants and innovation for the legal professions.”

In support of these objectives, and alongside work such as increasing in-court opportunities for CILEX professionals and solicitors, the government said it planned to review the standard crime contract.

“The objective will be to consider how administrative burdens could be reduced, how more neutral business models could be adopted and will consider how other changes could drive innovation.”

The MoJ said Sir Christopher had “noted the difficulties” faced by CILEX professionals in being accepted as duty solicitors because they needed to be accredited under the Law Society’s criminal litigation accreditation scheme, “which does not recognise CILEX’s advocacy qualifications as equivalent to its own”.

The government was “keen to see increased opportunities” for CILEX lawyers across the justice system to “increase the sustainability and stability of the provider base and to reduce barriers to access to this work where people enter the legal professions through alternative routes”.

The MoJ said it would work with the representative bodies and the Legal Aid Agency to make this happen.

However, it said the government did not believe that private legally aided provision was “always and exclusively the only way that criminal defence can be delivered” and was “conscious of the risk in the market and the moral and legal obligations” to ensure access to justice.

“The government therefore proposes to expand the PDS, on a limited basis initially focused on providing additional capacity in geographic or thematic elements of the legal defence market where there is potential unmet need, risk of markets failing or being disrupted such as for duty solicitors in rural areas and for specialised advocacy; or where the PDS might present greater value-for-money such as in VHCCs [very high cost cases].”

The MoJ said the government planned to start with “a small expansion of the PDS’s current provision including by trialling remote advice, particularly in rural areas where duty solicitor schemes struggle to fill a rota”, and areas of specialist advocacy such as court-appointed advocates.

“The government is also interested in exploring providing the defence in some [very high-cost cases] and intends to consult to gather further data on this.

“In the longer term the government believes the PDS has an important role to play as part of ensuring sustainable and stable provision of criminal defence.”

The MoJ added that the government had “noted Sir Christopher’s thoughts” on how non-traditional forms of provider and “new ways of working such as holistic models and not-for-profit providers might play a part in ensuring that the criminal defence market continues to provide access to justice”.

The consultation also sought views on where funding for solicitor training contracts could help firms, and how it could best be targeted.

Steps to improve retention and encourage careers could also see the MoJ support solicitors to gain higher rights of audience, it said.

The trial expansion of the PDS will be used to gather data on increased provision of remote advice to see if it is easier for those with caring responsibilities to undertake police station work.

While the MoJ said it was for the profession to take the lead on improving diversity, the question of disparities in barristers’ incomes depending on gender or race meant a “broader enquiry” was needed to understand the “interactions between the professions (including solicitors, solicitor-advocates, the Bar and CILEX professionals), and how the system can work better to provide opportunities for those from diverse backgrounds”.

The proposed legal aid advisory board would be asked to invite the legal regulators and representative bodies to investigate the causes of pay disparities, “and to report back with recommendations for both MoJ and the professions”.

The MoJ said the Legal Services Board’s work on a statement of policy on ongoing competence should be allowed to conclude before it considers the gap Sir Christopher identified in the system around quality control for advocacy.

At the same time, it intends to explore creating a Lord Chancellor’s list of advocates, with membership based on quality of advocacy and consistency of service, akin to the Attorney General’s panels.

For law firms, the review of the criminal contract would look to ensure that it promoted high-quality standards, including CPD, quality assessment and consistency of service.

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