Government response
The government responded to the review on 15 March 2022.
Government’s full response to the Criminal Legal Aid Independent Review and consultation on policy proposals
Summary written by Accountability Index from the government's response. It is not the government's own words.The government says its response sets out reforms to criminal legal aid following CLAIR, combining a package of fee increases with longer-term structural reform of fee schemes.
- On fees, the government increased most criminal legal aid fees by 15%, in force from 30 September 2022, but did not uplift prison law fees or the PPE elements of the LGFS.
- It will consult on a revised LGFS that relies less on pages of prosecution evidence, expecting to do so "by early 2024". It says modelling a standard fee scheme needs data it does not currently collect.
- It has set up a Criminal Legal Aid Advisory Board, but its current view is that it would not be appropriate for the Board to advise on uprating fees, citing CLAIR's recommendation against a fee review body.
- It does not currently plan to expand the Public Defender Service, and does not propose to take forward a Lord Chancellor's list of advocates "at present", citing consultation opposition, though it will keep the latter under consideration.
Government's full response
Summary written by Accountability Index from the government's response. It is not the government's own words.The Ministry of Justice sets out its full response to the review, combining a fee uplift with longer-term structural reform, some of which it is pursuing in modified form and some of which it is not taking forward.
- On police station fees, the government "will consult further on a standard fee model" based on time spent, and intends to re-invest £16m a year into harmonising the scheme. It will keep the scheme as it is for practitioner seniority.
- On the Litigators' Graduated Fee Scheme, it agrees with CLAIR's observations on over-reliance on pages of prosecution evidence, and "expect[s] to consult on a revised LGFS scheme by early 2024".
- It does not currently plan to expand the Public Defender Service, will not uplift prison law fees "at this stage", and does not intend to reform the Magistrates' Court fee scheme beyond the 15% increase.
- It has allocated an additional £3m over two years for Special and Wasted Preparation and £4m over two years for section 28 work, with criteria being developed with the Criminal Legal Aid Advisory Board.
Government's full response: Executive summary
Summary written by Accountability Index from the government's response. It is not the government's own words.The government says it is "largely taking forward the recommendations proposed in CLAIR", with a 15% fee increase already in force and longer-term reforms to follow, some subject to further consultation.
- The government increased most fees by 15%, in force from 30 September 2022, and "does not intend to reform" the Magistrates' Court fee scheme beyond that increase.
- On police stations, it "will consult further" on a standard fee model based on time spent, and will re-invest £16m in a steady state into harmonising the lowest paid fees.
- It expects to consult on a revised Litigators' Graduated Fee Scheme "by early 2024", with less reliance on pages of prosecution evidence.
- It will not take forward a Lord Chancellor's list of advocates "at present" after significant opposition, but will keep it under consideration. It "does not currently have any plans to expand" the Public Defender Service.
About this review
Summary written by this siteIndependent review examining the long-term sustainability of the criminal legal aid system in England and Wales, covering police station advice, magistrates' court, Crown Court and appeal stages. Found the system was in serious crisis and recommended significant fee increases.
Recommendations 19
Recommendation 1
An independent Advisory Board should be established to advise the Lord Chancellor at regular intervals on the arrangements for the delivery of criminal legal aid. The remit of this body should include (i) participation by other stakeholders, including the Police, the CPS, and the Courts, as well as providers, to foster transparency and understanding of how decisions on criminal legal aid affect the wider CJS, and vice-versa; (ii) on-going consideration of the criminal legal aid system, identifying specific problems as they arise, and possible further reforms, including new ways of working; (iii) advising the MOJ on the data needed to ensure that criminal legal aid is efficient and responsive, in all areas of England, and in Wales, and (iv) and fostering diversity and equality of opportunity.
Recommendation 2
The MOJ should encourage and facilitate local arrangements, whether through local Criminal Justice Boards or otherwise, for improving lines of communication between the defence, the Police, the CPS and the Courts, with a view to understanding common problems and finding solutions in the interests of the CJS as a whole, while respecting the different constitutional roles of the various stakeholders.
3(i) The MOJ should consider, in conjunction with the Advisory Board as appropriate, the extent of unmet need in criminal legal aid in Wales or England, for example in terms of particular geographical areas (whether rural locations, small towns or inner cities), particular types of user (such as young suspects/defendants, or those with mental health issues), particular communities (such as those from a minority ethnic background) or particular areas of work (such as appeals or prison law); and if so, how those needs should be met, in particular by support grants to not-for-profit or similar organisations, or other measures, with a view to pilot schemes. Such consideration should include new possible ways of working as discussed in Chapter 15, including "holistic models" that span both criminal and civil needs, focussing on the needs of the user,
(ii) The MOJ should consider training grants to support more trainees in criminal legal aid firms.
Recommendation 4
The MOJ should invest in and significantly improve the availability of data to enable better assessment of the efficiency, incentives, costs and effectiveness of criminal legal aid and the various fee schemes, including the effect of decisions in different parts of the criminal justice system on the provision and cost of criminal legal aid.
Recommendation 5
There should be a substantial increase in the remuneration available to firms doing criminal legal aid work, better to enable criminal legal aid firms to invest in recruitment, compete for talent, maintain quality, provide training, and ensure retention. Additional funding of at least £100 million per annum (an overall increase of some 15%) is required, not least to enable criminal legal aid firms to offer remuneration broadly commensurate with the CPS, and to ensure equality of arms. To increase efficiency and protect the taxpayer, such an increase should be accompanied by reforms to the structure of remuneration set out below.
Recommendation 6
The general principles for reform of the solicitors' remuneration schemes should be that (i) work done should be properly paid (ii) perverse incentives be removed and (iii) administration costs be minimised. The best available compromise for meeting these objectives is the present remuneration scheme for the Magistrates' Court, which is a system of lower standard, higher standard, and non-standard fees, permitting most routine work to be carried out at a fixed cost, while allowing reasonable claims for more complex cases. I recommend that the Magistrates' Court scheme be also the basic model for criminal legal aid work in the police station and the Crown Court. For the avoidance of doubt, the remuneration model should reflect the seniority of the solicitor where appropriate. The remuneration should also incentivise case ownership, early engagement with the police/CPS, and proper preparation. In principle, each main component of the work, namely the police station, the Magistrates' Court and the Crown Court, should not be reliant on cross-subsidy from other work.
Recommendation 7
The remuneration payable for police station advice and assistance should be restructured along the lines of the Magistrates' Court remuneration scheme namely a lower standard fee, a higher standard fee, and a non-standard fee in exceptional cases, so as to reflect better the different circumstances of cases, improve quality, and ensure that proper advice and assistance is available as early as possible. Such restructuring should be based on the matters specified in paragraph 2(3) of Schedule 4 currently used to calculate the escape fee, but also reflect the seniority of the solicitor concerned. The remuneration rates should increase as recommended above, and should as soon as practicable phase out different rates based on individual police stations.
Recommendation 8
The MOJ should, in conjunction with the Advisory Board as appropriate, and in collaboration with the police and Home Office, initiate a detailed study of the operation and effectiveness of advice and assistance in the police station, including assembling more detailed data, for example on whether the take-up of such advice by suspects can be improved, the quality of the service given, the means of delivery (physically or remotely), the possibility of basing duty solicitors in larger police stations, the use of accredited representatives and their effective supervision, and improvements in training and/or accreditation needed generally, and in particular in relation to young or vulnerable suspects, and those from a minority ethnic background.
Recommendation 9
Pre-charge engagement should be remunerated. The preparation necessary to determine whether pre-charge engagement is appropriate or not should be remunerated irrespective of whether pre-charge engagement subsequently takes place. Similarly work reasonably necessary to maintain contact with the police and/or the client in the period between the initial police station arrest/interview and the charging decision should be remunerated, irrespective of the extent of any substantive pre-charge engagement, and whether ultimately there is a charge or not. This remuneration should be treated as an extension of the police station scheme, as reformed as recommended above.
Recommendation 10
To encourage as much communication as possible between the police/CPS and defence prior to the first hearing in the Magistrates' Court, criminal legal aid funding should be available to remunerate discussion between the defence and the prosecution prior to that first hearing, including remunerating the preparation necessary for such discussion, for example any reasonable requests relating to the disclosure of the initial details of the prosecution case or unused material. This remuneration should be based on the same structure as the present Magistrates' Court scheme.
11(1) The existing Magistrates' Court scheme should be retained, but remuneration increased in line with the general uplift in remuneration recommended above,
(2) There should be a system of higher and lower standard fees for appeals and committals for sentence from the Magistrates' Court to the Crown Court,
(3) Committals for sentence should not be remunerated at less than the equivalent remuneration for a guilty plea in the Crown Court.
12(1) The MOJ should generally prioritise devoting additional resources to the Youth Court, in particular by raising the fees either to the level that would apply were the case to be tried in the Crown Court, or generally in relation to other Magistrates' Court fees, and provide that there be certificates for counsel for youth court appearances,
(2) An appropriate system of accreditation with appropriate training should be developed for advocates appearing in the Youth Court.
13The LGFS should be restructured, on the understanding that the intention is not to reduce solicitors' remuneration overall, to the contrary, but to rebalance such remuneration to better reflect work actually done and to facilitate the general increase in fees recommended above. The restructuring of the LGFS should proceed along the following lines:
(i) The principle of lower standard fees, higher standard fees and non-standard fees used in the Magistrates' Court, and recommended above for police station advice and assistance, should be extended to the LGFS, with different fees applicable to different classes of offences set out in the LGFS Table of Offences, the latter to be simplified as appropriate,
(ii) The preparation and other hourly rates and amounts upon which the lower standard, higher standard and non-standard LGFS fees will be based should reflect the need to properly remunerate the work done, ensuring that taken overall litigators' Crown Court work may be viably undertaken,
(iii) The rates for confiscation proceedings dealt with under paragraph 26 of the LGFS should be increased so as to incentivise sufficient litigators to take on this work,
(iv) The provisions of Schedule 2, Part 3 of the LGFS providing for a fixed fee in the Crown Court in certain cases should be abrogated.
Recommendation 14
In accordance with my recommendation in Chapter 13, advocates' remuneration under the AGFS should be increased overall by some £35 million (15%) partly through an overall increase in fees, and partly through a restructuring of the AGFS as recommended below.
15The restructuring of the AGFS should include a general uplift in fees and the following changes:
(i) The relationship between the brief fees for different offences should be reviewed, in particular to determine whether fees for murder and serious sexual offences adequately reflect the gravity and complexity, and whether PPE is having a distorting effect,
(ii) Greater flexibility in the provisions governing special preparation so that work reasonably done be properly remunerated,
(iii) The fees for special preparation and considering unused material be increased,
(iv) Wasted preparation where an advocate cannot attend a trial through no fault of their own should be claimable in all cases of wasted preparation in excess of 2 hours,
(v) Work reasonably undertaken should be claimable and payable within 90 days without the need to await the conclusion of the trial before claiming payment,
(vi) Fixed fees under the AGFS including those provided for the PTPH should benefit from the possibility of enhanced payment, through a claim for special preparation or otherwise, so as to reflect the work necessarily done in the particular circumstances,
(vii) The fees for confiscation matters should benefit from the general uplift in a way that sufficiently incentivises advocates to take on this work,
(viii) Part 4 of Schedule 1 of the Regulations be abrogated, as for the LGFS above.
16The recommendations set out in Chapter 14 above in relation to appeals, references to the CCRC, IFFOs, prison law and experts' fees should be carried into effect, particularly as regards:
(i) The overall increases in remuneration there recommended,
(ii) The restructuring of remuneration for advice and assistance on CCRC work with lower, higher and non-standard fees,
(iii) In relation to IFFOs, amending the Regulations to clarify the statutory basis and provide a mechanism for dispute resolution,
(iv) In relation to prison law, the restructuring of advice and assistance work with lower, higher, and non-standard fees.
17(i) I recommend that the LAA work with the MOJ, and solicitors' representatives, to determine why the gender balance in relation to duty solicitors is in favour of male solicitors, and if so what steps should be taken to achieve a more equal gender balance,
(ii) The MOJ, the Bar Council and the Bar Standards Board should establish to what extent, and if so why differences exist in the publicly funded incomes earned or the work undertaken by criminal legal aid barristers on the basis of gender or ethnicity, with a view to taking any necessary corrective action, having regard to the principles of equality in the expenditure of public monies,
(iii) The MOJ working with the Bar Council and Bar Standards Board as appropriate consider whether further support for young barristers after pupillage is appropriate with a view to increasing diversity within the profession and if so, how that should be achieved.
Recommendation 18
I recommend that the LAA and MOJ review the provisions regarding the acceptance of CILEX members as duty solicitors.
19(i) The MOJ should reconsider and re-frame the objectives of the LAA to the effect that the LAA's primary objectives should be to support the resilience of the criminal legal aid system and reduce unnecessary bureaucracy, while maintaining proportionate control over costs,
(ii) The MOJ, the LAA and relevant stakeholders work through the existing terms of the SCC and the LAA's related procedures with a view to simplifying and reducing administrative burdens where proportionate to do so,
(iii) The LAA review its staff training programmes with a view to implementing the more flexible approach to claims for reimbursement recommended in this Review while mindful of the need to reject unreasonable claims and safeguard the taxpayer,
(iv) The LAA consider the various specific matters raised in this Report in particular in relation to the DSCC (Chapter 8), the working of the police station scheme including accreditation (Chapter 8), the 14-hour rule (Chapter 8), earlier payment of advocates' fees (Chapter 13), and reimbursement of experts fees in the Magistrates' Court (Chapter 14), with a view to resolving with the MOJ what action may be appropriate.
All text above is the review's.
No recommendations have this response.