Just a few thoughts about this story on the proposed increase in legal aid criminal defence fees, which has been making some headlines today.
gov.uk/government/new…
gov.uk/government/new…
As an opening disclaimer, nothing that follows is intended as a dig at those who have worked exceptionally hard on behalf of the criminal Bar to negotiate with an historically untrustworthy and dishonest Ministry of Justice. They have done their best, and have secured gains. But.
The MoJ's press release headline is "The government will spend an additional £23 million on fees for criminal defence advocates". This sounds like a big figure, and the MoJ want the public to think it's a big figure, legal aid fat cats and all that. So let's put it in context.
The Advocates Graduated Fee Scheme, which pays defence advocates in legal aid cases, has been cut relentlessly over recent years. As has the overall criminal legal aid budget. As has the overall legal aid budget. As has the overall MoJ budget. Approx 40% across the board.
Criminal legal aid has been cut in real terms by £340m since 2011/12. That has been achieved partially by cutting fees paid to advocates (AGFS), part by cutting fees paid to litigators (solicitors) (LGFS), part by restricting availability of legal aid to those accused of crimes.
To cut a long story of cuts very short, the latest wheeze by the MoJ was to introduce a new scheme of AGFS earlier this year. Its effect was to cut the fees in some complex cases by up to 80% (see this open letter). The Bar took action and refused cases. thesecretbarrister.com/2018/11/20/gue…
This is because already poorly-paid work, particularly for the most junior practitioners, was simply unviable. We're talking £3-an-hour unviable in some cases. The MoJ insisted the new scheme was "cost neutral", just moving money around. This was untrue. It was a cut of £9m.
The MoJ persuaded the criminal Bar by a Brexit-like margin (51% to 49%) to go back to work on the promise of £15m extra funds being injected into the scheme by October 2018. The MoJ did not keep its promise. So in November we're still working on the new (terrible) rates.
There have since been negotiations between the Bar and the MoJ, in an effort to undo at least some of the damage. The upshot is this "additional £23m", which is in fact the original £15m promised, plus an extra £8m. Although those figures include VAT so it's closer to £19m.
But what do these abstract figures mean? Not much. For a start, it's based on modelling. So the increase only amounts to this figure if the workload in the courts remains broadly the same. It won't, because fewer cases are being charged and brought to court, to save money.
The total spend on AGFS in 2016/17 was around £224m. So an added £8m is very small beer. It will help smooth some of the roughest edges in the scheme, but doesn't touch the sides of the cuts over the past decade. Legal aid rates remain artificially low.
Junior criminal barristers will still be covering all-day hearings for senior colleagues and taking home less than £40 for the privilege. We will still have trials that we've spent days preparing randomly refixed by the court for dates we can't do, and will be paid £0.
We will still be paid not a penny to read through thousands of pages of disclosure - the vital material that could hold the key to saving an innocent person from years in prison. Our median take-home pay will still be a modest £27k. The most junior will still take home under £8k.
HOWEVER, here's the point. It's not actually about us. We choose this career and go into it with our eyes open. There's a far bigger picture, which we must not lose sight of.
Much as what we get paid matters to us (and to society - you ain't gonna have much of a lawyer prosecuting your burglar or defending you against a false allegation if they're billing £5 an hour), it's a tiny piece of that picture. The whole justice system needs investment.
The justice budget has been cut by 31% - by £2.9 BILLION - since 2010, with a further 9% cut (£800million) to take effect by 2020. The effects are those I, any many others, highlight every day. They are why I wrote the book. The justice system is broken.
The police have no resources to catch criminals. The CPS don't have resources to prosecute, or to comply with disclosure to protect the innocent. The courts that haven't been closed are crumbling, leaking wrecks. Victims, witnesses and defendants face chronic delays and errors.
Some defendants are excluded entirely from legal aid, forced to self-represent or pay privately. If acquitted, the government will not pay back their legal fees in full, leaving them destitute: thetimes.co.uk/article/gp-acc…
Prisons are too horrific to put into words. 
So while the MoJ may congratulate itself, make no mistake - this is not a solution. Not even close. £8m for legal aid when you've sacrificed £4bn, demolished the court & prison estate and excluded the most vulnerable from accessing justice, is not the end. It's barely the start.
