Criminal legal aid: Justice Committee says reforms risk undermining rule of law, calls for urgent review

Government reforms to criminal legal aid risk eroding rights to legal advice and representation, tarnishing the reputation of our justice system, and undermining the rule of law – risks that can no longer be ignored, says the Justice Committee in a new report published today. MPs call on the Government to carry out a comprehensive and independent review – similar to the recent independent review of legal aid in Scotland – with the aim of devising a scheme that is sustainable and user-focussed.

Today’s report considers recent changes to criminal legal aid, including the Litigators’ Graduated Fee Scheme (LGFS) and Advocates’ Graduated Fee Scheme (AGFS). In the Committee’s separate inquiry on disclosure of evidence in criminal cases, an emerging pattern in the evidence indicated that these schemes were working against the ability of the defence properly to fulfil its role, as neither scheme offers remuneration for time spent reviewing unused prosecution material.

This, together with the dispute that had emerged between the Criminal Bar and the Ministry of Justice over the revised AFGS, prompted the Committee to take oral evidence from the Criminal Bar and solicitors' representative organisations. Based on this, together with understanding of the background to the AGFS dispute and an exchange of correspondence with the Secretary of State for Justice, the Committee decided to publish this short report on criminal legal aid.

The Committee calls for the review of criminal legal aid to be launched no later than March 2019 and take no more than twelve months to complete. It also recommends that the review be underpinned by output from the criminal legal aid workstream within the post-implementation review of the Legal Aid, Sentencing and Punishment of Offenders (LASPO) Act 2012.

The Committee also recommends that the Government conduct an urgent cross-departmental review of funding of all elements of the criminal justice system, with the aim of restoring resources to a level that enables the system to operate effectively. The details of the review should be published in advance; its timetable must ensure completion in time to influence the conclusions of the 2019 Spending Review.

Chair of the Justice Committee, Bob Neill MP, said:

“In criminal cases, there is a common law right to legal advice, and a right to legal representation under the European Convention on Human Rights. There is compelling evidence of the fragility of the Criminal Bar and criminal defence solicitors' firms, which places these rights at risk – a risk which can no longer be ignored. 

“We heard first-hand the deep unhappiness among barristers about their situation and the future of the criminal justice system as a whole. The Government cannot kick these problems down the road any longer and they must carry out comprehensive reviews to develop policies that are sustainable in the long term.

“An effective criminal justice system is one of the pillars on which the rule of law is built. Under-funding of the criminal justice system in England and Wales threatens its effectiveness, tarnishing the reputation of our justice system as a whole, and undermining the rule of law. These reviews should be carried out with urgency to end the crisis we are currently facing.”

Other conclusions and recommendations:

• The Committee considers it regrettable that the Law Society has had to resort to bringing a judicial review to pursue its grievances about the LGFS, and it recommends that the Ministry of Justice take urgent steps to avoid this dispute having to be resolved by the courts; whatever the outcome of the case, there should be a wider review of criminal legal aid.
• The Committee also considers it regrettable that the Criminal Bar felt compelled to take direct action in response to the new AGFS, given the potential for adverse impact on defendants, claimants and the functioning of the courts. However, the underlying reasons for the dispute can be understood: the staged reductions in fees from April 2010 onwards, unhappiness about the revised scheme and the Criminal Bar's heartfelt concerns about the future of their profession and under-funding of the criminal justice system.
• While the Committee welcomes the Government's additional funding for the AGFS, and the Criminal Bar's acceptance of the offer, it does not believe that the underlying issues have been resolved; many barristers remain deeply unhappy about their situation and about the future of the criminal justice system.
• The Committee acknowledges the challenges facing the Ministry of Justice in reworking the AGFS so that it is fair to all advocates, and in ensuring that the scheme is future-proofed against changes in the profile of Crown Court cases. It also acknowledges that the Ministry has made genuine efforts to address the concerns of the Criminal Bar. The Committee recommends that, without further delay, a system of annual review be built into the AGFS, overseen by a panel which includes representatives from the Criminal Bar and Solicitor organisations; the panel's remit should include considering the inter-dependency between the AGFS and the LGFS.
• The pressure placed on defence lawyers to fulfil their professional obligations by reviewing increasing quantities of unused prosecution material is fundamentally unfair and likely to become unsustainable, and increasingly prejudicial to the defendant. We recommend that restoring legal aid payments for reviewing unused material above a certain page threshold be considered as part of the comprehensive and independent review of criminal legal aid that we have recommended above.