Criminal Legal Aid Review: An accelerated package of measures amending the criminal legal aid fee schemes

Results updated 21 Aug 2020

We have now analysed your feedback, and published our response.

Criminal defence practitioners play a crucial role in upholding the rule of law. I greatly value the huge contribution the criminal defence profession makes to our society. I hope the policies we have decided on in this response will go some way to ensuring that the defence profession is paid more fairly for the important work they do.

These policies represent a first step towards the wider review. At the beginning of 2019, my department began a comprehensive review into the criminal legal aid fee schemes and wider market, aiming to reform the system holistically to ensure work done was fairly remunerated, that the provider market was flexible and delivered value for money for the taxpayer and that the legal aid system supports an effective and efficient criminal justice system. In light of pressing concerns from practitioners identified early on, we took the decision to fast-track consideration of some aspects of the existing fee schemes in isolation, to enable the delivery of quick wins ahead of the comprehensive review where the fundamental principles of the fee schemes could be considered in the round. These were the ‘accelerated areas’ of the review:

•    how litigators and advocates are paid for work on unused material
•    how advocates are paid for work on paper-heavy cases
•    how advocates are paid for cracked trials in the Crown Court
•    how litigators are paid for work on sending cases to the Crown Court
•    how litigators are paid for pre-charge engagement (which will be the subject of a separate consultation after the Attorney General’s response to consultation on amending the disclosure guidelines)

Having carefully considered consultees’ responses, I have decided to proceed with the proposals as set out at consultation, except for how litigators are paid for work on sending cases to the Crown Court. For this proposal, in light of the responses received, I am increasing the payment from 2 hours’ worth of work to 4 hours and will make payment under the magistrates’ court scheme.

Many consultation responses highlighted concerns about the sustainability of the professions, especially in light of Covid-19 which has led to a fall in cases coming before the courts. We paused the consultation on the accelerated areas to focus on our immediate Covid-19 response for legal aid practitioners, developing cash flow measures to ensure money owed in the system already was available to them during the pandemic. This necessarily delayed our response to the consultation, but now as we work collaboratively with the legal professions to get the courts back up and running, we are able to return our attention to it. Through these quick wins we can inject an additional £36 million to £51 million per year into criminal legal aid.

But the accelerated areas are only the first step towards the wider review, which we always intended would result in reforms that would support a sustainable and diverse market of practitioners. Since then, Covid-19 has thrown into sharp relief concerns about the sustainability of the market. In light of the situation we now find ourselves in, I remain convinced that our original aims were the right ones. Fundamentally, we want to ensure that the market can: meet demand now and into the future, provide an effective and efficient service that ensures value for money for the taxpayer, and continues to provide defendants with high-quality advice from a diverse range of practitioners. However, there remains a huge amount of work to do to deliver against these objectives.

Having reflected on whether our original approach to delivering the review was the right one to achieve these overarching aims, I have decided that the next phase of the Review should involve an independently-led review that will be ambitious and far reaching in scope, assessing the criminal legal aid system in its entirety, and will aim to improve transparency, efficiency, sustainability and outcomes in the legal aid market. It will consider working practices and market incentives and how these can drive efficient and effective case progression and deliver value for money for the taxpayer. Planning is in progress and I plan to launch it as soon as possible after Parliament returns.

Alongside the independent review we will also prioritise work to ensure that the fee schemes (especially the crime lower ones) are consistent with and enable wider reforms that seek to modernise the criminal justice system, in line with our original aims for the review. Given the rapid changes in ways of working that have been adopted across the justice system to support recovery in the courts, it is essential that the criminal legal aid system actively enables the defence profession to play its role in these efforts.

I would like to thank all those who have taken the time to respond to the consultation and look forward to continuing constructive engagement as we move towards the next phase of our ambitious review.
 
The Rt. Hon. Robert Buckland QC MP
Lord Chancellor

Files:

• Government response, 459.9 KB (PDF document)
• Equality statement, 792.5 KB (PDF document)
• Impact assessment, 683.3 KB (PDF document)
• Government response (Welsh summary), 355.7 KB (PDF document)