The parched earth of criminal legal aid will finally see a little rain after the government accepted Sir Christopher Bellamy’s recommendation to inject £135m to prevent a market collapse.
The Ministry of Justice (MoJ) said today that the funding boost would sit alongside “the most ambitious reform of criminal legal aid in decades that would ensure professionals are better paid for the work they actually carry out and help free up capacity in courts”.
It said the proposals would give more people the opportunity to forge a career in criminal law, whatever their background, “by funding the training and accreditation of solicitors and solicitor-advocates and removing barriers for members of the Chartered Institute of Legal Executives (CILEX)”.
The announcement came in the wake of the Criminal Bar Association revealing that 94% of members voted in favour of refusing to accept return work under the advocate graduated fee scheme from 11 April “unless government agrees to the measures necessary to safeguard the long-term sustainability of the criminal Bar”.
Sir Christopher’s criminal legal aid review, published in December, recommended an extra £100m for solicitors and £35m for barristers, a 15% increase, as “the minimum necessary as the first step in nursing the system of criminal legal aid back to health after years of neglect”.
The detail of the MoJ’s proposals were not released in advance, but a press release said the income and capital thresholds would be raised to make 3.5m more people eligible for criminal legal aid at the magistrates’ court, and over two million more people eligible for civil legal aid.
The financial cap on eligibility for Crown Court defendants will also be removed, ending the so-called ‘innocence tax’.
The MoJ promised a restructuring of the fee schemes “so they properly reflect the work that legal professionals do today”, and the creation of an advisory board to represent “all parts of the profession” and help shape criminal legal aid policy. The latter was a key recommendation of Sir Christopher.
Lord Chancellor Dominic Raab said: “We owe our whole legal profession – solicitors, barristers, court staff and judiciary – a debt of gratitude for keeping the wheels of justice turning over the last two years.
“That’s why we are accepting Sir Christopher Bellamy’s recommendation for an uplift in fees and a total of £135m extra investment to ensure legal representation is there for those who most need it as we build back a stronger and fairer society after the pandemic.”
Sir Christopher said that expenditure on criminal legal aid reached a peak of £1.2bn in 2004/05 but by 2019/2020 had fallen to £841m, a real-terms decline of 43%. Some fees for solicitors have remained unchanged for 25 years.
Law Society president I Stephanie Boyce welcomed the government finally heeding the many calls for investment.
“[It] represents a welcome first step towards repairing our criminal justice system and ensuring defence solicitors are available when any of us may need them…
“Twenty-five years of real terms cuts have seen the number of criminal legal aid firms almost halved since 2007 [from 2,010 to 1,062] and our heatmaps show that duty solicitor are ageing and increasingly scarce in some parts of the country.”
However, she said it was “disappointing” that the fee increases would be delayed for a few months.
“It remains to be seen whether the investment will be enough to halt the exodus from criminal defence work, but we hope this injection of cash can begin to turn the tide.”
Bar Council chair Mark Fenhalls said the announcement would “help start to rebuild a criminal justice system that the public wants and deserves”.
Professor Chris Bones, chair of CILEX, added: “CILEX professionals are essential to our justice system and the removal of the false barriers that prevent them from playing a full role in criminal legal aid is a huge step forward.
“Doing so will not only help to address current backlogs, but will also make an enormous difference to improving both the diversity and the sustainability of the sector.”
But Jo Sidhu, chair of the Criminal Bar Association, said the money would not affect its plans for industrial action.
He said: “The CBA members have made it absolutely clear that without a substantial increase in criminal legal aid fees, the alarming exodus of prosecutors and defenders from criminal work will continue if not accelerate.
“Our members have already made it clear that the suggested increase in fees by Sir Christopher Bellamy will not be sufficient to retain enough criminal barristers to keep the wheels of justice turning and that means victims will be failed.”
Further reforms in the MoJ package will make legal representation free for all under-18s as well as for parents challenging doctors over withdrawal of their child’s life support.
There will be legal help for families at inquests where there has been a potential breach of human rights, while domestic abuse victims who are disputing house ownership “will particularly benefit from our proposal that disputed assets will not count towards their wealth”.
The MoJ said boosting pay for lawyers representing suspects in police stations by 15% would tackle the “perverse incentive that currently encourages lawyers to wait and represent defendants in Crown Courts because it pays better”.