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Four barristers respond to consultation on barristers' legal aid fees

Date:3 MAR 2009

The Ministry of Justice (MoJ) and the Legal Services Commission (LSC) have published their response to the consultation paper 'Reforming the Legal Aid Family Barrister Fee Scheme' which was published on 18 June and closed on 10 September 2008. Comments were invited on options for reducing family barrister legal aid payments made under the Family Graduated Fee Scheme (FGFS).

Despite barristers' concerns about the reductions of their fees and the Family Law Bar Association's claim that the proposals will undermine the family justice system, only nineteen responses to the consultation paper were received. Of these, only four were from individual barristers. Six were received from solicitor and barrister representative bodies, one from a solicitor, and eight from the judiciary or judicial representative bodies.

However, there is still time for barristers and other interested practitioners to respond to the LSC's second consultation on this issue, Family Legal Aid Funding from 2010, which opened on 17 December 2008 and closes on the 18 March. Practitioners can respond to this consultation online by clicking here.

In September 2008, the Chairman of the Family Law Bar Association, Lucy Theis QC said in response to the consultation: "The proposed cuts will not only reduce the number of practitioners who are willing to undertake this important public service but also discourage those wanting to specialise in this area.

"These proposals will result in the reduced availability of publicly funded advocates. This will risk an increased number of litigants in person appearing before family courts with the consequence that there will be increased costs for the courts, the other parties (invariably in receipt of public funding) and delay in decisions being made in relation to vulnerable children. This will further undermine public confidence in the family law system."

The FGFS is a graduated payment scheme which sets out remuneration arrangements for barristers conducting family legal aid work. Standard fees are payable for pre-proceedings work, hearings and conferences. Uplifts, such as Special Issue Payments (SIPs), Settlement Supplements, and the High Court uplift, are payable as a percentage multiplier of the basic fees. In addition, 'bolt-on' fees are payable in each of the categories, such as Special Preparation Fees (SPFs), Court Bundle Payments (CBPs), or Incidental Payments. Higher basic rates are payable to QCs.

The MoJ and the LSC is eager to reduce expenditure on FGFS cases, which is now £26m per year higher than it was five years ago - rising by over 30% from £74m to nearly £100m. Payments to family barristers now represent 10% of the entire civil legal aid budget.

In response to the FLBA's concerns, the MoJ and the LSC argue that if they do not act to control rising average case costs, then they would be required to make other cuts to the civil legal aid budget. This would mean reductions in client eligibility or the scope of the civil legal aid scheme, and reductions in the numbers of people helped. This, they claim, would compromise access to justice more than reducing barristers' fees.

However the FLBA say that the Government should not solely be driven by budgets and cost-control, at the expense of the essential protection and assertion of the individual rights and freedoms.

In an effort to highlight the consequences of the proposed cuts to the Family Legal Aid budget, next week the Bar Council and the FLBA will publish a Survey Report which detailsthe work of the Family Bar.

The Government may use the current criticism of senior bankers to draw parallels with legal aid lawyers and gain more public support for legal aid cuts.

On Monday evening the Justice Secretary, Jack Straw, told an audience at the London School of Economics he deplored the "astonishing growth" in the numbers of lawyers paid for by the taxpayer.

The Justice Secretary said: "There is certainly nothing ordained by the Almighty which says that of those paid for by the public purse, lawyers should be any higher than in other professions."

"Lawyers and law firms who are dependent on state funding - and I emphasise dependent, as there are many whose existence relies exclusively on the public purse - would be wise to reconsider expectations of earnings," he added.

To read the MoJ and the LSC response to the consultation paper, click here.