Solicitors fury at “real-terms cut” in criminal legal aid fees

Raab: Lawyers will be fairly paid

The Law Society yesterday reacted with fury to the government’s failure to deliver the 15% increase in criminal legal aid fees that its own report said was needed as a bare minimum.

It warned that solicitors could turn to industrial action and told would-be criminal defence solicitors they were unlikely to generate “a reasonable professional income from this work”.

The Ministry of Justice (MoJ) only yesterday published its full response to last December’s criminal legal aid independent review (CLAIR), following a consultation issued in March 2022.

CLAIR’s author, Lord Bellamy KC, has since joined the MoJ as its House of Lords minister.

His report described a 15% increase in legal aid fees – £100m for solicitors and £35m for barristers – as “the minimum necessary as the first step in nursing the system of criminal legal aid back to health after years of neglect”.

He stressed: “I do not see that sum as ‘an opening bid’ but rather what is needed, as soon as practicable, to enable the defence side, and thus the whole CJS [criminal justice system] to function effectively, to respond to forecast increased demand, and to reduce the backlog.”

But in announcing the final details of the fee rises – having bumped some in September following an interim response – the MoJ said solicitors would only see an 11% increase.

In all, solicitors will receive an extra £85m – with changes to police station (£16m) and youth court fees (£5m) adding £21m to what had already been done – and barristers £43m. There will also be an additional £11m for expert fees to “eventually” be paid each year.

CLAIR recommended training grants to support more trainees in criminal legal aid firms. The MoJ consulted on allocating £2.5m a year to this but has decided instead to put the money into solicitors’ fees for police station work, after respondents said a fee increase “would be more beneficial to the profession and do more to recruit and retain junior practitioners”.

The proposed £3.2m for expanding the Public Defender Service will go to police station fees, as will £10m initially earmarked for longer-term reform of the litigators’ graduated fee scheme (LGFS), “as that would benefit more solicitors’ firms more quickly”. This means a 30% increase in police station fees in all.

At the same time, the police station fees scheme will be reformed over the next three years to reflect the amount of time spent on cases, while in 2024, the MoJ will set out a new LGFS for Crown Court work.

“Proposals will include a new way to calculate payments reflecting the type of offence, trial outcome and length, and the amount of evidence in each case – rather than the current system which is mainly based on the number of papers served to the prosecution, regardless of if these are ever read and how much time was involved in preparing them,” the MoJ said.

Lord Chancellor Dominic Raab said: “We are reforming criminal legal aid so our lawyers are fairly paid for the vital work they do delivering high-quality legal support for those who need it.

“We have taken on board the recommendations of the independent review and are modernising the system to deliver justice for victims now and in the future.”

The CLAIR sought views on how non-traditional forms of provider and new ways of working, such as holistic models and not-for-profit providers, might best play a part in the criminal defence market.

Not many of the 203 respondents properly engaged with the question but the MoJ said that the Legal Aid Agency – in reviewing the standard crime contract to increase the sustainability of the legal aid market – “will consider different contracting arrangements and how different business models might operate within them to increase the sustainability of the criminal legal aid market and promote more efficient ways of working”.

Law Society president Lubna Shuja said the fee increase was actually “a real-terms cut on fees that have been frozen since the 1990s”.

“Numbers of duty solicitors and criminal legal aid firms continue to fall at an alarming rate – with several police station schemes on the verge of collapse… The [CLAIR] was the last hope that the Ministry of Justice would take the crisis seriously and that there could be a viable future in criminal defence practice for our members.

“Instead, Raab has thrown down a gauntlet to the profession. This reckless decision not only puts many of our members’ futures in jeopardy, it is likely to prove to be a fatal blow to a criminal justice system that used to be the envy of the world.”

Ms Shuja said the society was warning those entering the profession and considering a career in criminal defence practice that “it is highly unlikely that you will be able to generate a reasonable professional income from this work”.

Similarly, the inadequate funding could mean solicitors conclude that continuing in criminal defence “may be incompatible” with their professional obligation to manage risks to the financial stability and business viability of their practices.

Referring to the barristers’ strike that ended in October after a deal with the MoJ, she added: “Having seen that direct action gets results, the response from some of our members may be to resort to disruptive tactics.”

Legally, the Law Society is prevented from calling on solicitors to strike.

However, Ms Shuja said the Law Society would look at a legal challenge to Mr Raab’s decision.

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