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Transforming legal aid: Government response

Date:27 FEB 2014
Journals Manager + Online Editor

Ministry of Justice - Transforming Legal Aid: Next Steps The Government has today confirmed its final package of reforms to the legal aid system following extensive consultation.

Alongside the steps being taken to make legal aid more sustainable and cost-effective for taxpayers, Justice Secretary Chris Grayling has also announced a range of measures specifically designed to support lawyers through a period of transition and modernisation.

In addition, he has also agreed with the Lord Chief Justice that a review will be undertaken to identify ways of streamlining court processes. This will, in particular, look at ways to reduce to a minimum the number of pre-trial hearings which require advocates to travel to and attend court. Pre-trial hearings are discussions on issues around case management that could be effectively dealt with, for example, over email or on the telephone. This would allow advocates to make better use of their time and potentially take on more cases.

The Justice Secretary also announced that more appropriate fees will be paid to defence lawyers in the future so they no longer lose out when a case heard in the Crown Court, which could have been heard in the Magistrates' Court, does not go ahead because the prosecution drops the case.

Justice Secretary Chris Grayling said:

'As everybody knows this Government is dealing with an unprecedented financial challenge and I have no choice but to look for the savings I have to make across the full range of the Ministry of Justice's work. I cannot exempt legal aid from this but that doesn't mean I don't understand how challenging these reductions will be.

Legal aid is a vital part of our justice system but we must ensure it is sustainable for those who need it, for those who provide legal services as part of it and for the taxpayer, who ultimately pays for it.

I have genuine respect for the quality services provided by the independent criminal Bar and solicitors. I have spoken at length with solicitors and barristers about these reforms and listened closely to their views.

Today's publication reflects many of the changes asked for. It does mean fee reductions but it also includes a series of measures to ease their effect on lawyers, including a range of support and assistance requested by The Law Society. I also want to make clear today that this Government will not seek further savings from criminal legal aid.'

The plans published today put forward a package of specialist support and advice specifically designed to help lawyers respond to the current challenging economic climate, as well as a commitment that the MoJ will review the effects a year after changes have been implemented. The full package includes:

  • Providing specialist help and guidance on where further financial help could be available to lawyers who need access to finance to help restructure their businesses.

  • Paying more appropriate fees to lawyers if the prosecution drop the case. Currently, if a case is halted due to the prosecution offering no evidence, lawyers whose clients choose to have a case heard in the Crown Court when it was also suitable for the Magistrates' Court are paid fixed fees at a similar level to those paid in the Magistrates' Court. Given this is beyond the control of the defence, going forward we will pay at a higher rate (the cracked trial fee in a Crown Court case).

  • Introducing interim payments to help with lawyers' cash flow in long trials. Currently lawyers in trials that last more than 10 days have to wait too long in some instances for fees to be paid, as bills are submitted at the end of a trial. We will therefore allow lawyers in these instances to claim some of their fees at the beginning of the trial to ensure better cashflow.

  • Providing support to solicitors preparing for the new tender process including establishing a business partnering network to offer information and guidance for practitioners seeking help with regard to restructuring their business.

  • Building on existing plans to use digital technology to increase the efficiency of courts by ensuring lawyers waiting to participate in trials are able to work remotely - for example by using free Wi-Fi and having access to power sockets.

As part of the Government's response to September's consultation, it has also been confirmed which proposals to make legal aid more cost-effective for taxpayers will be implemented. These are:

  • Implement a new, simplified, version of the Advocates Graduated Fees Scheme (AGFS) and reduce barristers' fees by, on average, 6%: We are implementing Option 2 from September's consultation. 99% of crown court cases involve advocates being paid through AGFS and so in September's consultation document we included a new model - Option 2 - following requests from barristers for a model based on the Crown Prosecution Service (CPS) one. This represents, on average, a 6% fee reduction for barristers and an average 2% reduction for those at the lower end of the fee income scale, including the Junior Bar. This is part of our effort to target the highest fee reductions at the highest earners. There will be a review after one year.

  • Introduce a new model of tendering for solicitors' duty slots to achieve value for money and make sure there is always help available for people questioned or charged with a crime. As part of this we will allow an unlimited number of own client contracts for solicitors who meet quality standards so people can choose their own solicitor or opt for the duty solicitor being provided. Duty slots will be allocated through a tight contracting mechanism based on quality and capacity to ensure that only firms, or groups of firms, which demonstrate clearly they have the capability to operate in this more challenging financial environment. Following specialist advice from Otterburn Legal Consulting and KPMG LLP there will be 525 of these contracts (the maximum in the range put to us as part of this advice).

  • Reduce solicitors' fees in a phased manner and continue with the slower implementation timetable for new criminal legal aid Duty Provider Work contracts in order to give the market more time to prepare. An initial reduction of 8.75% will apply to new cases starting on or after 20 March, and the next reduction would not apply until the following year. We will review the effect of the new contract structure once it has been in place for at least a year, in summer 2016.

The Government is also publishing its response to the Joint Committee on Human Rights (JCHR) today. Following careful consideration of their report and recommendations it has been decided to make some further exemptions to the Residence Test.

The full response is available here.