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1
Bar Council response to the Transforming Legal Aid: next steps
consultation
1. This is the response of the General Council of the Bar of England and Wales (the Bar
Council) to the Ministry of Justice (MoJ) consultation “Transforming Legal Aid: next steps”.1
2. The Bar Council is the governing body and the Approved Regulator for all barristers
in England and Wales. It represents and, through the independent Bar Standards Board
(BSB), regulates over 15,000 barristers in self‐employed and employed practice. Its principal
objectives are to ensure access to justice on terms that are fair to the public and practitioners;
to represent the Bar as a modern and forward‐looking profession which seeks to maintain
and improve the quality and standard of specialist advocacy and advisory services to all
clients, based upon the highest standards of ethics, equality and diversity; and to work for
the efficient and cost‐effective administration of justice.
1 Ministry of Justice, 2013, Transforming legal aid: next steps
2
Table of Contents
Page
no.
1. Executive Summary
4
2. Chapter 1: Introduction and the case for reform
7
3. Chapter 2: Response to consultation
14
4. Chapter 3: Introducing competition in Criminal Legal Aid market
Q1 Do you agree with the modified model described in Chapter 3? Please
give reasons.
Q2 Do you agree with the proposed procurement areas under the modified
model (described at paragraphs 3.20 to 3.24)? Please give reasons.
Q3 Do you agree with the proposed methodology (including the factors
outlined) for determining the number of contracts for Duty Provider Work
(described at paragraphs 3.52 to 3.73)? Please give reasons.
Q4 Do you agree with the proposed remuneration mechanisms under the
modified model (as described at paragraphs 3.52 to 3.73)? Please give
reasons.
Q5 Do you agree with the proposed interim fee reduction (as described at
paragraphs 3.52 to 3.55) for all classes of work in scope of the 2010 Standard
Crime Contract (except Associated Civil Work)? Please give reasons.
24
5. Chapter 4: Advocacy fee reforms
Q6 Do you prefer the approach in:
Option 1 (revised harmonisation and tapering proposal); or,
Option 2 (the modified CPS advocacy fee scheme model)
Please give reasons.
32
6. Chapter 5: Impact Assessments
Q7 Do you agree that we have correctly identified the range of impacts
under the proposals set out in this consultation paper? Please give reasons.
Q8 Do you agree that we have correctly identified the extent of impacts
under these proposals? Please give reasons.
40
3
Q9 Are there forms of mitigation in relation to impacts that we have not
considered?
Annex 1
Bar Council response to the proposed amendments to criminal Very High
Cost Case contracts
43
Annex 2
Bar Council response to the proposed changes to the 2010 Standard Crime
Contract to implement changes to prison law
49
Annex 3
What has happened to AGFS? A history
51
Annex 4
Fee Rate Tables for Modified Option 2
59
Annex 5
Making sensible, evidence-based reforms of AGFS
61
Annex 6
Bar Council response to the Judicial Review: proposals for further reform
consultation paper
64
4
1. Executive Summary
1.1 The Ministry of Justice’s ‘Transforming Legal Aid: Next Steps’ consultation paper raises
issues of profound importance for the administration of justice in England and Wales. This
response by the Bar Council, on behalf of over 15,000 practising barristers in England and
Wales is, like our response to the earlier consultation paper, based on a careful assessment of
the likely effects of the MoJ’s proposals on the justice system. In view of the crucial role
which the Bar plays in that system, as the second consultation paper recognises, it is
necessary to consider the effects of those changes not only on the public interest but also on
the Bar itself.
1.2 The Bar Council set out its core case in its statement on 7 May 20132 and submitted a
full response to the first consultation.3 We do not intend to repeat those arguments here.
Suffice it to say that we remain concerned about a number of areas covered in the earlier
consultation but which are no longer being consulted upon, including:
Restricting the scope of legal aid for prison law
Imposition of a financial eligibility threshold in the Crown Court
Introducing a residence test
Payment for permission work in judicial review cases
Removing legal aid for borderline cases as part of the civil merits test
VHCCs
Reducing the use of multiple advocates
Reducing the fixed representation fee paid to solicitors in family cases covered by the
Care Proceedings GFS
Harmonising fees paid to self-employed barristers with those paid to other advocates
appearing in civil (non-family) proceedings
Removing the uplift in the rate paid for immigration and asylum Upper Tribunal
cases
Expert fees
1.3 We provide detailed consideration of the specific questions posed in the Next Steps
document below. We repeat some of the arguments we made in our earlier response, which
the MoJ appears not to have accepted. The Bar Council welcomes certain concessions made
by the Government in relation to price-competitive tendering (PCT), but opposes aspects of
the proposals for a revised model for introducing competition in the criminal legal aid
market and the proposed cuts to rates for higher court advocacy.
2 http://www.barcouncil.org.uk/media/209501/legal_aid_consultation_paper_-
_bar_council_core_case.pdf 3http://www.barcouncil.org.uk/media/213867/the_bar_council_response_to_moj_transforming_legal_
aid_consultation.pdf
5
1.4 It is clear that the main justification for the proposals in the consultation is to save
money. The MoJ argues that the legal aid bill in England and Wales is disproportionately
high in relation to other jurisdictions. The Bar Council argues that the evidence shows that
this is not the case and does not justify the proposed cuts. The Bar Council also argues that
the data upon which the MoJ relies for its calculations are flawed and, despite repeated
requests, the MoJ has failed properly to provide the data sets requested to enable the Bar
Council to contribute to the consultation properly.
1.5 Applying the analysis of an independent consultant, Professor Martin Chalkley, the
Bar Council argues that the risks associated with the proposed cuts, and the manner in
which they are proposed to be made, are simply too high and that by proceeding as they
propose the MoJ would be acting recklessly. The cuts will have a significantly detrimental
impact on justice and upon the survival of the independent referral Bar and the chambers
system. In addition, the MoJ’s proposals will create further inefficiencies in the criminal
justice system, the effect of which will be to negate any savings intended. Far from achieving
savings in the administration of justice, the changes will add to costs.
1.6 The Bar Council argues that the proposed cuts are not predicated on real analysis nor
on a comprehensive impact assessment, nor in the context of current legal aid spend nor
against the background of the recent history of the cuts in legal aid expenditure. The level of
crime and of prosecutions has fallen and may well continue to fall. The cost of legal aid may
also fall, in contrast with the cost of other public services such as health, welfare and
education which continue to rise. The latest round of legal aid cuts has been proposed with
no apparent reference to previous cuts, whose effects have not yet been quantified nor
assessed. In the context of cuts already made to the Advocates’ Graduated Fee Scheme
(AGFS) since 2007, the impact of the latest cuts will fall particularly heavily on the Bar.
1.7 Specialist advocates in crime may be forced to look to other areas of practice for
work, or to leave the Bar altogether. The quality of service will suffer and access to justice for
the public will be reduced. The junior Bar, female and black, Asian and minority ethnic
(BAME) practitioners will be particularly, and disproportionately, affected. A reduction in
the quality of advocacy will compound inefficiencies in the criminal justice system which the
Bar Council has identified for reform, negating any cost savings. The quality of the talent
pool of practitioners from which the judiciary of the future is drawn will be reduced as the
brightest and best men and women look elsewhere to fulfil their career aspirations, to the
detriment of the public interest. Newly-qualified barristers may be deterred from joining the
criminal Bar or indeed from coming to the Bar at all. As the number of pupillages and
tenancies in publicly-funded practice continues to diminish, the threat to the quality of the
junior criminal Bar of the future is already apparent.
1.8 The recent figures highlighted in Baroness Hale's speech to the Legal Aid Lawyers on
30 October4 taken from Alan Milburn's Fair Access to Professional Careers5 show the impact
4 http://www.supremecourt.gov.uk/docs/speech-131030.pdf
5 A Milburn, Fair Access to Professional Careers: A progress report by the Independent Reviewer on
Social Mobility and Child Poverty, May 2012, figs 3.1 and 3.2; see also Sutton Trust, The Educational
6
the existing cuts are already having on diversity and social mobility at the Bar. These
proposed cuts will only increase this backwards trend, reversing all the positive work that
has been done in recent years.
1.9 In response to the April consultation, the Bar Council urged the MoJ to consider the
idea of the creation of a commission or review to examine the criminal justice system overall.
This would include funding, how the courts work, case progression and how the profession
works within the system. The MoJ has instead commissioned a six-month review of the
provision of advocacy within the criminal justice system, led by Sir William Jeffrey. The Bar
Council welcomed the announcement of the review and will cooperate fully, but
remuneration and quality of advocacy are inextricably linked. They need to be properly
examined together. Without a full assessment of the inefficiencies already inherent in the
criminal justice system, alternative – and less damaging (in terms of their impact on justice) -
ways of saving money cannot be found. The Bar Council remains of the opinion that a
comprehensive review is required, in the public interest.
1.10 Notwithstanding the paucity of data supplied by the MoJ, the Bar Council proposes
consideration of an alternative to Option 2 of the consultation paper. ‘Modified Option 2’ is
intended to be cost-neutral in terms of fees paid, but to achieve administrative savings by
doing away with the need for an accurate and agreed count of the pages of evidence. It
restores fees from the levels set out as Option 2 in the consultation paper to the levels
embodied in 2013 AGFS rates and rebalances fees from the levels set out in Option 2 to
favour Lone Juniors relative to QCs and related counsel (Led and Leading Junior), and it
corrects an error relating to led junior enhanced fees in Option 2.
1.11 In the Lord Chancellor’s foreword to the Next Steps consultation, the Lord Chancellor
states:
“This Government’s commitment to legal aid means that we must ensure that it
commands public confidence, and is put on a sustainable footing, for those who
need it, those who provide it, and those who ultimately pay for it – the taxpayer”.
1.12 For all the reasons that are set out in this response, it is the considered view of the
Bar Council that implementation of the proposed reforms will achieve none of the
Government’s objectives. They will undermine public confidence in the justice system and
they will undermine its sustainability to provide justice for all.
Back to contents
Backgrounds of Leading Lawyers, Journalists, Vice Chancellors, Politicians, Medics and Chief
Executives, 2009.
7
2. Chapter 1: Introduction and the case for reform
2.1 While encouraged by the MoJ’s recognition of the high esteem in which the justice
system in England and Wales is held, the Bar Council is once again struck by repeated
assertions relating to the relative cost of that system compared with other jurisdictions.
Paragraph 1.3 of the consultation paper states:
“We still have one of the highest levels of legal aid spending in the world,
with around £1 billion of this spent on criminal legal aid. It costs more per
head than any other country, including those with similar legal and judicial
traditions”.
2.2 The MoJ has repeated this mantra on every occasion it has announced another
proposed cut to legal aid. Evidence to the contrary has always been provided by the Bar
Council to the MoJ in response, but no amount of evidence has been able to dissuade the
MoJ from repeating this misleading statement.
2.3 The MoJ first made this suggestion when it published a report in 2011 (two years
after it was submitted by the researchers), entitled International comparison of publicly funded
legal services and justice systems.6 This was a comparison based on a limited survey of eight
countries. It did not purport to be a world survey. It showed that the total spend per capita
in England and Wales (that is to say, the costs of legal aid together with the costs of courts
and public prosecutions) was below that of all of the countries to which it was compared,
namely France, Germany, Netherlands and Sweden.7 The fact is that the MoJ’s international
comparisons do not compare like with like. The criminal justice system in England and
Wales, based on the adversarial system, includes items of expenditure which in other
jurisdictions are allocated to other areas of government expenditure. Council of Europe data
indicate that in England and Wales legal aid costs per inhabitant actually fell by 23%
between 2004-2008 in the context of a 23% average increase across Europe,8 as the Justice
Committee has noted.9
2.4 More recently, the report of the National Audit Office Comparing International
Criminal Justice Systems,10 published in 2012, stated:
6 http://217.35.77.12/CB/england/papers/pdfs/2009/comparison-public-fund-legal-services-justice-
systems.pdf 7 Roger Bowles and Amanda Perry, University of York, Ministry of Justice Research Series 14/09,
October 2009, page 27, Table 7.2. 8 European Commission for the Efficiency of Justice: Efficiency and Quality of Justice (2010), Council
of Europe, p 34. 9 Third Report, Government’s Proposed Reform of Legal Aid (March 2011) HC 681, at para 36. 10 Page 38.
http://www.nao.org.uk/wpcontent/uploads/2012/03/NAO_Briefing_Comparing_International_Crimin
al_Justice.pdf
8
“For the period studied ‘the average total annual public budget allocated to
all courts, prosecution and legal aid as a percentage of GDP per capita
across Europe was 0.33 per cent. [...] The expenditure of England and
Wales, at 0.33 per cent, was average”.
2.5 The premise upon which the MoJ bases its case for reform is thus simply wrong. The
Bar Council has found it difficult to have a constructive engagement with the MoJ when the
Ministry’s public statements continue to repeat a message that can at best be described as
spin and at worst as deliberately misleading.
2.6 Even if the UK spends a higher percentage of its GDP on the justice system than
some other countries, this does not mean that cuts must be introduced to bring its spending
down to that level. Statistics published by the World Bank state that in 2011 the United
Kingdom spent 9.3% of its GDP on health, whereas Romania spent only 5.8%. The
Government does not use those statistics to argue that England and Wales must reduce its
health spending to match that of Romania. Rather, there is pride that an excellent health
service is provided; there should be equal pride in relation to the provision of excellent
access to justice.
2.7 Paragraph 1.5 of the consultation paper states:
“If we are to maintain the credibility of legal aid as an integral part of our
justice system we have to be able to demonstrate to the public and hard-
working families on whose taxes this system depends that we have
scrutinised every aspect of legal aid spending to ensure that it can be
justified and that services are being delivered as efficiently as possible”
2.8 The Bar Council asserts that far from “scrutinising every aspect of legal aid
spending”, the MoJ has in fact relied on data which are incomplete and seriously flawed.
The outcome is a set of proposed cuts which will not ‘trim the fat’, if indeed there is any fat
to trim, but will disproportionately and arbitrarily impact on the legal profession and, in
turn, access to justice. The Bar Council is concerned that the evidence base to which the MoJ
refers is distorted by the inclusion of data relating to those practitioners for whom criminal
defence work is not their sole area of practice and this has led to misguided assumptions
being made about the provision of legal services. The independent consultant, Professor
Martin Chalkley, who has been advising the Bar Council, goes into further detail about this
at Annex 5 and proposes an alternative.
2.9 The MoJ’s second consultation paper proposes two options for cutting fees for
Crown Court defence advocates. The Bar Council would also like to use this opportunity to
clarify the MoJ’s statement in paragraph 1.20 that it put forward Option 2 in response to the
first consultation. While it is correct that the Bar Council mooted a change to AGFS whereby
it is aligned more closely with the system used by the CPS, this was for the purpose of
making administrative savings which would help to mitigate the MoJ’s proposal to make
cuts. The Bar Council did not, and does not, support the level of cuts proposed in either
Option 1 or Option 2.
9
2.10 Both options are said to save the same £15m,11 which is said to amount to 7%.12 The
Bar Council and Professor Chalkley have asked to see the data and calculations on which
those assertions were based on a number of occasions in order both to confirm them and
examine the impact on different parts of the profession in order to be able to interrogate
those areas where efficiencies might be reasonably made. This data is also critical for a
proper Equality and Diversity Impact Assessment to be made. So far, insufficient data have
been forthcoming. This is despite the MoJ’s assertion at paragraph 1.8 that:
“We responded to and learned from Parliamentary debates and select
committee hearings, questions and requests for information”
2.11 The Bar Council is still awaiting full responses to requests made during the first
consultation period. The Bar Council believes that, given the full data set, it would be able to
cleanse the information so that only salient data remain to be relied upon. Only then can a
fair and transparent analysis of the efficiencies of the system be identified.
2.12 In all previous years the MoJ has shared with Professor Chalkley, the original author
of the Graduated Fee Scheme, the full dataset of anonymised payment data for the scheme.
This year, despite letters from the Chairman of the Bar to the Lord Chancellor13 and
correspondence and meetings between the Bar Council executive and MoJ officials, the MoJ
has only supplied a partial dataset and it has refused to provide any detail of its calculations.
By contrast, Professor Chalkley shared all of his calculations with the MoJ, which showed
how he was unable to arrive at the same figures that the MoJ had asserted for Option 1
(Annex H). This prompted the MoJ to publish a statement on 3 October that it had made “a
transcription error for some of the advocates’ fees set out in Annex H” and it published a
corrected table of proposed rates. The MoJ’s recent reluctance or inability to share data and
analysis has made the task of the Bar Council in responding to the consultation and
engaging with the MoJ much more difficult.
2.13 Paragraph 1.30 of the consultation paper sets out the estimated savings made so far
through legal aid reforms imposed since 2010, and anticipated savings to be made by those
proposed in this second paper. If, as asserted, the savings which the MoJ is required to make
are predicated on the cuts to its own budget, the Bar Council believes that it would be wise
to recognise that the impact of previous reforms has not yet been fully felt. There are still
savings to come through the system which have not been ‘counted’. In addition, the fall in
advocacy work means that there will be a natural reduction in spend. Despite this, the MoJ
seems determined to impose swingeing cuts without having analysed the impact on justice
11 “Reforming fees in criminal legal aid – further consultation - impact assessment”
https://consult.justice.gov.uk/digital-communications/transforming-legal-aid-next-
steps/supporting_documents/latcrimefeesconsultationia1.pdf
Pages 2 and 3 of the impact assessment assert that Option 1 will save £15m, and Option 2 will save
£15m. However, page 5, paragraph 10 states, “All savings figures have been rounded to the [...]
nearest £5m for estimates above £10m”. 12 ‘Cumulative Impact Assessment’ page 13, https://consult.justice.gov.uk/digital-
communications/transforming-legal-aid-next-steps/supporting_documents/latimpactassessment.pdf 13 20 September 2013 and 25 October 2013.
10
of previous cuts and without due reference to trends which show that legal aid spend is
falling year-on-year in any event.
2.14 When it has been previously pointed out that legal aid expenditure has been falling,
and will continue to fall, and that this has not been taken into account in the proposal for
additional cuts, the Government has replied that those cuts are already accounted for.
However, the October 2013 report from the Legal Action Group - Civil Legal Aid – the Secret
Legal Service?14 - has identified that the cuts to civil legal aid made by the Legal Aid
Sentencing and Punishment of Offenders (LAPSO) Act have been greater than had been
calculated in the Government’s impact assessments at the time. In the first quarter of the
current year, in legal help cases in debt, education, discrimination, housing and welfare
benefits, there have been 52% fewer cases than the Government predicted would be the case
once it had reduced the scope of legal aid. To give but one example, page 3 of the report
states:
“LAG believes that the very large shortfall in discrimination law can be
explained by the 100% reduction in the availability of legal aid for
employment law cases. In the employment law category the government
projected that 78% of cases, out of a total of 24,000, would be taken from
scope. The remaining 22% would be discrimination ones. However, most
discrimination law cases usually stem from a dispute in the workplace, but
as no legal aid is available for employment law advice people who have been
discriminated against are less likely to seek help.”
2.15 For the Government to continue to say that previous legal aid cuts have already been
fully accounted for and that further ones are needed, does not take account of evidence such
as this that the cuts made are greater than the Government has calculated.
2.16 The MoJ has also failed to recognise the context in which these cuts are being
proposed. There has been no evaluation or consideration given to the cumulative effect of
fee changes in AGFS over the period 2007 to 2013. To that end, the Bar Council
commissioned Professor Martin Chalkley to prepare an analysis, based on data over the
period 2007-2013, setting out how the fees that are set for advocacy services under AGFS
have changed over that period and how they will change if either Options 1 or 2 proposed in
this consultation paper are adopted. To the Bar Council’s knowledge, this paper is the first
comprehensive study to evaluate the cumulative effect of fee changes in AGFS over the
period 2007 to 2013.
2.17 Professor Chalkley’s paper is at Annex 3. What is clear through this process is that all
parties, including the MoJ, lack the relevant information with which to assess properly the
impact of proposals such as these.
2.18 The point has to be made that both what is proposed now, and what has been
enacted over the last six years, has fundamentally affected the earnings of those who derive
their living from providing criminal defence advocacy services. The effects have to be seen
14 http://www.lag.org.uk/media/133089/legal_aid_secret_service.pdf
11
in their totality and they have to be understood in terms of the individuals concerned. There
is an important public interest point to be made. Earnings are the signal upon which
individuals make decisions as to which career (and hence what education and training) to
undertake. Nobody appears to have the basis upon which to determine those effects i.e. who
and to what extent they 'impact' in terms of seniority, commitment to the public service,
area of the country, age, gender, ethnicity and so forth. To continue to proceed with cuts
upon cuts, restructure upon restructure, in the absence of this information, some would say,
borders on the reckless.
2.19 Professor Chalkley’s paper explains that set AGFS prices largely determine the
income of barristers who choose to specialise in criminal advocacy and so determine the
return on the investments they have made e.g. the cost of training. It therefore follows that a
substantial decline in that return will reduce the incentive to make those investments. This
idea is expanded upon further at Annex 5.
2.20 Looking ahead, marked price reductions - implying little return on that investment -
must result in barristers leaving the profession and a reluctance of recently qualified lawyers
to specialise in crime, which will lead to a reduction in quality and therefore an impact on
justice.
2.21 In AGFS, freezing prices in cash terms means that they are reduced in real terms.
Lord Carter’s review of legal aid in 2006 recognised the erosion of the real value of
graduated fee prices and on the basis of his review the revised AGFS went some way
towards restoring the real value of prices to their 1996 levels (from which they had declined
due to inflation) and instituted a number of other structural reforms.
2.22 This was the last, and only, occasion since the inception of AGFS when consideration
has been given to the appropriate level of remuneration; the new prices were set to establish
appropriate levels of pay for a broad range of seniorities of criminal advocates, thereby
ensuring an adequate return on investments in a career in criminal advocacy.
2.23 Since the adoption of the revised scheme in 2007, AGFS has been subject to a series of
reductions. Therefore, not only have rates been eroded by inflation, they have been reduced
ever further; this trend is perpetuated by the current consultation.
2.24 Professor Chalkley has used the same bundle of cases that were used to assess the
implications of the Government’s proposals, namely the complete set of cases that received a
final payment under AGFS in the financial year 2012-2013. He has calculated what each case
would be paid under the rates that Lord Carter’s review established, what the same case
would be paid under the rates currently in effect and then what each case would be paid
under Options 1 and Options 2 of this consultation. Furthermore, he has taken a measure of
inflation between 2007 and 2013 in order to establish the extent of the real reductions in
AFGS prices.
2.25 Professor Chalkley’s findings are that as of 2013, AGFS prices have been reduced by
21% in cash terms equating to 37% in real terms. The breakdown of these reductions in
terms of trials, cracked trials and guilty pleas, by category and advocate roles are set out at
12
Annex 3. If either of the options set out in the current consultation are followed, the overall
reduction in AGFS prices will be 26.4%, equivalent to 41% in real terms.
2.26 Thus, broadly speaking, the proposals set out in the present consultation mean that
the value placed on publicly-funded defence advocacy services will have decreased by over
26% in cash terms and more than 40% in real terms since 2007.
2.27 These reductions also do not take into account the changing face of criminal
advocacy. The law has become more complex; the specialist knowledge required of a
criminal advocate has grown over the period in question. The role of the advocate now
encompasses a myriad of ancillary applications including (but not limited to) hearsay, bad
character, Public Interest Immunity, the restraint and freezing of assets, disclosure and
special measures. The barrister’s work has grown while the return has declined to a marked
extent.
2.28 The ‘Transforming Legal Aid: Next Steps ‘consultation does not ask any questions about
VHCC cases, as a decision has apparently already been made that 30% cuts will be applied.
The Bar Council considers it would be useful to set out how VHCCs have already been
subject to repeated cuts over time.
2.29 Cases are categorised as a VHCC and paid on an individual case contract whereby
the trial length is expected to last more than 60 days (prior to 2010, cases with an expected
trial length of more than 40 days were categorised as VHCC). The table below shows how
rates have been cut severely since 2004.
Defence
VHCC
rates/hr
2004 2005 2008 2010
Category 1 2 3/4 1 2 3/4 1 2 3/4 1 2 3/4
Preparation
QC 180 140 110 160 125 100 152.5 119 95.5 145 113 91
Leading
Junior
140 110 90 140 110 90 133 104.7 83.5 127 110 79
Led Junior 110 80 70 100 80 70 95.5 76 65 91 73 61
Junior alone 110 90 80 110 90 80 104.5 85.5 74 100 82 70
Advocacy
QC 600 600 600 525 525 525 500 500 500 476 476 476
Leading
Junior
450 450 450 450 450 450 410.5 410.5 410.5 390 390 390
Led Junior 300 300 300 300 300 300 265 265 265 252 252 252
Junior alone 330 330 330 330 330 330 300 300 300 285 285 285
2.30 Annex B of the ‘Transforming Legal Aid: Next Step’s consultation proposes cutting the
current rates by an additional 30%:
13
Defence
VHCC rates /
hr
Proposal 2013
Category 1 2 3/4
Preparation
QC 101.5 79.10 63.70
Leading
Junior
88.90 70 55.30
Led Junior 63.70 51.10 42.70
Junior alone 70 57.40 49
Advocacy
QC 333.2 333.2 333.2
Leading
Junior
273 273 273
Led Junior 176.4 176.4 176.4
Junior alone 199.5 199.5 199.5
2.31 VHCCs are paid different hourly rates depending on what category a case is given.
The criteria for these categories has been amended several times so that in practical terms,
fewer and fewer cases are Category 1 and more and more are Categories 3 and 4.15
2.32 By examining the statistics for the number of VHCC cases over time by reference to
case category, the extent of this additional hidden cut would be revealed. The Bar Council
asked the MoJ for this information. The MoJ responded that the Bar Council would have to
submit a formal request for this information under the Freedom of Information Act. Given
that the MoJ have 20 working days to respond to FOI requests, it was unlikely that
information would be provided in time for the Bar Council to respond to the consultation.
The Chairman of the Bar therefore wrote directly to the Lord Chancellor on 25 October,
requesting this information. No reply has yet been received. When the Bar Council chased
up this information, it was told by the MoJ to submit an FOI request. The Bar Council has
done so (FOI 86472) and has received the reply that the MoJ will respond by 26 November.
2.33 The Bar Council hopes that this response sets the context in which further cuts are
proposed and that the remainder of this response will be read with that context in mind.
Back to contents
15 In 2007, all terrorism cases were categorised as Category 1 (Criminal Defence Service Funding
Order 2007, S.I. 1174, Schedule 3). Since 2013, terrorism cases are only categorised as Category 1 if
they are “uplifted from Category 2” and they can only be Category 2 if they also meet four other
criteria (Legal Aid Agency 2013 VHCC Specification, pages 9-10).
14
3. Chapter 2: Response to consultation
3.1 The Lord Chancellor’s decision not to include the Bar within the scope of the original
proposal for a Price Competitive Tendering (‘PCT’) regime was very welcome. The outcome
of that initial consultation has been to abandon the PCT model and to retain client choice.
The Bar Council welcomes these policy decisions. However, with those principal exceptions,
the result for the Bar of the first consultation has been almost exactly what was proposed by
the MoJ in the first place. The proposed cuts remain what they were, namely about 7% of the
Graduated Fee Scheme (AGFS) and 30% for Very High Cost Cases (VHCCs). This result,
coming on top of cumulative waves of previous cuts and the erosion of the real value of
publicly funded barristers’ fees – as set out in Annex 3 - has prompted many practitioners to
question whether the profession is sustainable in the long-term, notwithstanding the
expression of respect in which the Bar was said to be held in the MoJ’s first consultation
paper.16
3.2 Despite the fact that MoJ is no longer consulting on some elements of the first
consultation, the Bar Council is minded to set out here its continuing concerns regarding
those proposals where decisions appear to have been made and implementation is
apparently inevitable. These decisions have been made despite the overwhelming and
cogent arguments made by the Bar Council, and others, against them.
Restricting the scope of legal aid for prison law
3.3 The MoJ is invited to consider the Bar Council’s response to the first consultation
(chapter 3, paragraphs 1-17, pages 27-29) and Annex 2 as well as the Bar Council’s 13-page
summary submission to the Joint Committee on Human Rights in relation to cuts to civil
legal aid and prison law and the implications for access to justice of the Government’s
proposals.17 The Bar Council invites the MoJ to consider the views of the JCHR before
making any decisions about implementing the proposed cuts.
3.4 The Next Steps document, and the accompanying impact assessment, does not
engage with any of the principal objections to the restriction of prison law, including those
based upon the Government’s claim that the amendments will save £4 million per year.
3.5 The Government has failed to conduct any costing of the proposed measures, aside
from the crude assessment that they will save £4 million per year by taking 11,000 cases out
of scope. This ignores the fact that in many of those cases the money expended on a legal aid
lawyer can result in much greater saving elsewhere in the system, e.g. through Category A
prisoners being appropriately downgraded. On the MoJ’s figures (Costs per place and Costs
per Prisoner, October 2012) it costs £61,954 per annum to keep a prisoner in Category A,
compared with £33,576 for Category B. If 3 % (100) of those prisoners failed to achieve
16 Transforming legal aid: delivering a more credible and efficient system (2013) CP14/2013, at para 2.8. 17 http://www.barcouncil.org.uk/media/229037/2013.09.27_jchr_call_for_evidence_-
_bar_council_response_final.pdf
15
downgrading through lack of proper representation, this would cost the MoJ £2.8 million
per annum.
3.6 Moreover, the impact assessment does not recognise, still less engage with, the fact
that the reduction in scope will lead to an inevitable increase in complaints to the Prisons
and Probation Ombudsman (PPO). As noted previously, it costs the PPO approximately
£830 to resolve a complaint,18 which is £610 more than it costs a legal aid lawyer to provide
advice and assistance.19 Last year there were 5,300 complaints to the PPO.20 Conservatively,
if that doubled, the cost to the MoJ would be £6.47m.21
3.7 Neither does the Next Steps document, nor the impact assessment, engage with the
submissions made by the Parole Board in its consultation response, that the reduction in the
number and quality of prison lawyers is likely to result in an increase in costs, including
through the reduction in the quality of lawyers,22 and the consequent increase in deferred
parole hearings. The points are not engaged with and rejected; they have all simply been
ignored in favour of an apparently pre-determined outcome.
3.8 The Government’s response to all of this, at Annex B to Next Steps, is to say that the
proposals are intended to focus on cases that justify the use of public money, and to assert
that the prison’s internal complaints system must be the first port of call. This does not
answer the point that the public money “saved” will be spent on cases that do not meet the
Government’s criteria, through the PPO. Moreover the internal complaints system lacks
independence and it will not stem the flow of cases to the PPO.
Imposition of a financial eligibility threshold in the Crown Court
3.9 It is noted that the Government intends to implement, without modification, the
reforms imposing a financial eligibility threshold in the Crown Court. Notwithstanding this,
the MoJ is invited to consider again the Bar Council’s response to the first consultation
(Chapter 3, paragraphs 18-35, pages 30-34).
3.10 While the Bar Council agrees with the principle that the taxpayer should not
ultimately pay for the legal representation of people with the means to pay for their own
defence (although those acquitted should have their reasonable legal costs reimbursed),
there are serious concerns that yet another change to the eligibility criteria risks increasing
overall cost and may reduce efficiency in the system generally. Over the past 20 years, the
eligibility criteria have changed one way then the other with little discernible difference to
18 Although the Bar Council’s original consultation response estimated the figure to be £1,200, at
Annex B of the consultation response the Government asserts that the true figure is £830, which we
have adopted for present purposes. 19 The fixed fee for providing advice and assistance is £220. 20 http://www.ppo.gov.uk/docs/ppo-annual-report-2012-13.pdf 21 5,300 x 2 x 610. 22 The Government’s bald assertion in the impact assessment at [27] that individuals are likely to
receive the same quality of legal advice is unsustainable in the face of 17.5% cuts to already low fixed
fees.
16
the overall cost. Although the MoJ asserts that the LAA’s administrative processes are
sufficient to mitigate the potential for additional delays, it seems perverse to introduce any
potential for further delays without a compelling financial case to show that there would be
some benefit arising from the changes.
3.11 Additionally, at Annex B, paragraph 73, the Government states that a lay client who
is above the threshold would begin by funding their case privately and, if their finances then
fell below the threshold, the rest of the case would be paid as a legal aid case at legal aid
rates. It is intended to introduce this change by secondary legislation and the drafters of the
Statutory Instrument will need to consider carefully how this will interact with the Legal
Aid, Sentencing and Punishment of Offenders Act 2012, section 28(2) of which provides:
“A person who provides services under arrangements made for the purposes of this
Part must not take any payment in respect of the services apart from—
payment made in accordance with the arrangements, and
payment authorised by the Lord Chancellor to be taken.”
3.12 The draftsman will need to avoid the unintended consequence of an advocate paid at
private rates for the first part of the case prior to it moving to a publicly-funded case, who
then continues at legal aid rates, being unable to receive the private fees owing to the
provisions against mixed funding in LASPO.
Introducing a residence test
3.13 The Bar Council notes and welcomes the Government’s concessions in respect of a
residence test for children under 12-months old, asylum seekers and certain types of cases
including trafficking and forced marriage. However, the Government continues to ignore
the fundamental principles of the Rule of Law which mean that the proposed introduction
of a residence test is deeply unattractive and wrong for constitutional reasons. It impacts the
rights of access to the courts which is a basic constitutional principle embedded in the law. It
also offends two core principles of the law: the right to non-discrimination, and equality
before the law.
3.14 Evidence received by the Joint Committee on Human Rights underscores the
concerns the Bar Council raised in its response to the earlier consultation in relation to the
residence test and the severe difficulties in practice of securing legal aid under the
arrangements for exceptional funding. In particular, the Bar Council shares the concerns that
have been raised by the Public Law Project that the Legal Aid Agency has only granted four
out of the 547 applications it has received. That is to say, applicants for exceptional funding,
on current performance, have only a 0.73% chance of succeeding in their application.23
3.15 Even if it were not the case that the proposal of a residence test is discriminatory and
carries the unlawful purpose of limiting the freedom of some to access the courts, there
remain deep flaws in the Government’s thinking. The consultation response asserts, for
example, that there is not likely to be a significant increase in the number of litigants in
23 Uncorrected transcript of oral evidence given by Martha Spurrier on 23 October, p9.
17
person as a result of this proposal (Annex B, paragraph 123) and that the MoJ has “been
monitoring the impact of litigants in person following the reforms introduced by LASPO
and will continue to do so”. It is respectfully suggested that since LASPO was only enacted
in April 2013, it is far too early for the full impact to be fully felt. Indeed, Lord McNally
recently said that six months was too soon to consider the 47% reduction in mediation in
family work. The Bar Council is already sufficiently concerned about the potentially huge
increase in the number of litigants in person to have published A Guide to Representing
Yourself in Court.24 There is no evidence of any reliable basis upon which the Government’s
assertion is made and it continues to be the Bar Council’s view that this proposal will
increase the number of litigants in person, thereby creating inefficiency and negating any
possible savings.
3.16 The Bar Council does not intend to rehearse here its full objections to the residence
test but would instead invite the Government to revisit the Bar Council’s response to the
first consultation at Chapter 3, paragraphs 36-9, pages 34-35.
Payment for permission work in judicial review cases
3.17 The Bar Council welcomed the opportunity to respond to the MoJ’s further
consultation paper: ‘Judicial Review: proposals for further reform’. The Bar Council’s response
(at Annex 6) sets out in detail the basis upon which this proposal is opposed, which remains
consistent with the arguments made in the response to the first consultation (Chapter 3,
paragraphs 92-122, pages 47-55).
3.18 In summary, the Bar Council disagrees strongly with the proposal to deny payment
to claimant lawyers in cases where permission to apply for judicial review is refused. The
Government’s proposals for funding of permission for JR will seriously undermine the
viability of specialist lawyers working for claimants. The Bar Council agrees with the
evidence given to the Justice and Human Rights Committee on 23 October25 that the changes
in funding arrangements will mean a real problem in terms of equality of arms between
claimant and Government lawyers.
3.19 Judicial review is one of the main ways in which citizens may vindicate their rights
and hold the Executive to account. Threatening the viability of carrying out judicial review
work will therefore have serious consequences for access to justice and the ability of
individuals to challenge the actions and/or decisions of public bodies. Those decisions often
have significant and serious consequences for the everyday lives of people in Britain.
3.20 It is also a matter of deep concern that a particular group only (namely legally-aided
claimants) would be subject to these provisions. Defendants would face no particular
adverse consequences when they resisted applications for permission for no good reason.
The position of privately-funded claimants would remain unchanged. Treating legally-aided
24 http://www.Barcouncil.org.uk/instructing-a-barrister/representing-yourself-in-court/ 25 Uncorrected transcript of oral evidence given by Tim Butley, Landmark Chambers on 23 October,
p8.
18
claimants differently would be unfair; it would create an unprecedented imbalance between
the parties to litigation and will lead to inequality of arms.
3.21 The proposal creates an unacceptable level of risk for practitioners and will force many
of them either not to take on this kind of work or not to take cases that are in any way
challenging or uncertain. Many are already operating in marginal conditions and will find
the risks too great to continue. The assumption made that legal aid lawyers will respond by
diversifying into other, more profitable areas of law is not accepted. The exit of legal aid
lawyers is not in the public interest and competition will suffer. The disproportionate impact
on BAME practitioners is of particular concern as the majority of judicial review cases are
immigration cases and BAME barristers are over-represented in this area of legal practice.
3.22 If the MoJ is determined to penalise practitioners by making retrospective decisions
not to pay them for work they have done then this should only apply where they have
brought proceedings improperly. There is a ready mechanism to decide this since judicial
review proceedings can now be declared to be wholly without merit if permission is refused.
This is intended to block an application for oral renewal but could also be adapted for legal
aid purposes.
3.23 Finally, it is important to recall why, in contrast with ordinary civil litigation, there is a
permission stage in judicial review proceedings at all. Its purpose is precisely to provide a
filter to protect public bodies against unarguable claims. That represents a satisfactory
balance between the public interest in access to court and the public interest in
administrative certainty. There is simply no evidence that unarguable claims are routinely
permitted to proceed beyond the permission stage. In other words the existence of the filter
amply serves its intended purpose. A claim is either arguable or it is not, and the permission
stage is the appropriate mechanism for determining that question. It is wrong in principle to
impose additional, specific disincentives to accessing the permission stage itself. That does
not “rebalance” judicial review; rather, it risks fatally undermining it.
Removing legal aid for borderline cases as part of the civil merits test
3.24 The Government’s response to the first consultation is to proceed to remove legal aid
for all cases assessed as having a ‘borderline’ chance of success, without demonstrating any
recognition of what it has been told the definition of ‘borderline’ may mean.
3.25 As explained by the Bar Council in its response to the original consultation (Chapter
3, paragraphs 123-155, pages 55-59), any rational system which invites an assessment of
merits by reference to the “prospect of success” has to take account of the class of case in
which even a qualified and experienced assessor, armed with all the relevant facts, cannot –
for good reason – plump for putting the case in a “likely to win” or “likely to lose” category.
In the legal aid system that class of case is properly recognised and carefully and narrowly
defined by the current “borderline case” category.
3.26 The Government’s response to this explanation is to acknowledge that the proposals
may create an impact on the development of case law and the setting of precedents, but that
this is not a justification for paying for cases with only a 50% chance of success. The
19
Government is urged to reconsider the meaning of the definition that it is applying to
‘borderline’ cases. It is not so simple as to state that the case could go one way or another; it
is more that no educated assessment can be made in that regard. The strength of the case is
at that point unknown as the issues are untested in law.
3.27 Removing the funding of cases assessed as having a ‘borderline’ possibility of
success will see funding removed for cases critical both to individuals and areas of public
policy. Many important cases will have been assessed as borderline but nevertheless have
gone on to win. Such cases will have ensured access to justice where something really
important was at stake.
3.28 Despite assurances to the contrary made by the Government in its response to the
first consultation, the Bar Council remains concerned that the impact assessment relating to
this proposal does not adequately take into account the possibility that no savings will be
made at all. Where the prospects are genuinely unclear, it will be necessary to err on the side
of caution and assess at 51% where (as in all such cases presently falling into the scheme)
something really important is at stake. There are also likely to be more appeals to
Adjudicators relating to decisions by the Director of Legal Aid, tying up additional
resources. It is foreseeable that more applications will be made for legal aid at the
investigatory level to enable a more precise assessment of prospects; all building in
additional cost and delay.
VHCCs
3.29 In relation to criminal VHCCs, the MoJ state its intention to introduce 30% fee cuts
to the rates paid to solicitors and barristers not only for future cases, but also to cases that
are in progress and contracted under the current rates. This is on top of the huge fee cuts
that have already been made to these cases since 2004 as set out in Chapter 1 of this
response. The MoJ has acknowledged the warning that it received from respondents to the
consultation that solicitors and advocates may return VHCC cases if rates are cut mid-way
through the case:
“There was agreement among respondents that the reduction should not apply to future work in
current cases. There were concerns that it would be unfair and unlawful unilaterally to change the
terms of a contract that had already been entered into. It was suggested there was a risk that some
advocates would return briefs in on-going cases if fees were reduced and that this would lead to
increased expenditure paying new advocates to get up to speed”. (Annex B, paragraph 356)
3.30 The MoJ then proceed to ignore the warning it had received:
“We consider it appropriate to apply the fee reduction to existing cases as well as any case classified
on or after the implementation date”. (Annex B, paragraph 366)
3.31 The Bar Council has been contacted by a number of advocates stating their intention
to exercise their contractual right to ‘return’ the VHCC case they have been working on if
the MoJ unilaterally changes the terms of the contract for that case by imposing a 30% fee
reduction. If that happens, such cases will be far more expensive for the MoJ because the
20
cost of instructing new solicitors and barristers for these cases in order to repeat months, or
possibly in some cases years, of work will far exceed the cost of continuing to pay the case at
the current rates.
3.32 In order to gauge the impact were such a unilateral change to the contracts be
introduced, the Bar Council, on 27 September, asked the MoJ for a list of all current VHCC
cases, including their start date and the numbers of litigators and advocates involved. The
MoJ responded that they would be dealing with the request as a request under Freedom of
Information Act and would respond within 20 working days.26 On 25 October, the MoJ
responded that “The law allows us to decline to answer FOI requests when we estimate it
would cost us more than £600” and that the Bar Council’s request “is most work-intensive.
We do not record on our electronic system all the advocates involved in each Very High
Cost Case.” Consequently they refused to provide the names and contact details of barristers
involved in VHCCs. The MoJ’s refusal to provide this information timeously does raise
questions about the LAA’s appreciation of what a survey of such views might reveal. The
MoJ response that they did not have a list of barristers who hold VHCC contracts readily
available became even more difficult to understand when on 31 October the LAA wrote to
every barrister involved in a VHCC case, and served a contract amendment notice.
3.33 The consequences of the MoJ pursuing unilateral amendment of existing contracts are
likely to prove disastrous. It will cause wasted expenditure in instructing a second team of
advocates to redo work that has already been contractually paid for under the original
contract.
3.34 If the imperative behind these amendments is saving money, they will achieve
precisely the opposite.
3.35 Implementing the proposed amendments will also mean that the Government is
dangerously abrogating its responsibility to provide effective legal representation for those
facing trial. These trials are by virtue of having met the criteria for inclusion in the VHCC
scheme the most lengthy, complex and difficult cases.
3.36 The MoJ is urged to consider the Bar Council’s response to the proposed
amendments to criminal Very High Cost Case contracts (Annex 1), which was submitted on
18 October, as well as Chapter 5, paragraphs 68-81 of the response to the original
consultation.
3.37 The Bar Council maintains that the introduction of the Bar’s GFS Plus scheme
presents an attractive solution to the MoJ’s concerns regarding VHCCs. We fear that the
blunt instrument of a 30% cut will present more difficulties for representation and access to
justice in these cases, which are among the most serious.
Reduction of use of multiple advocates
26 FOI request 85829, email from Catherine Bond, LAA Governance Team, 2 October 2013
21
3.38 It remains of some concern that the Government continues to express unease that the
appointment of leading, or multiple, counsel is being permitted in cases where it is not
absolutely necessary, but does not identify any evidence on which any such concern could
properly be based.
3.39 The first consultation paper proposed that the power to grant representation orders
lies solely with Presiding Judges. The decision by the MoJ, following the response to the first
consultation, to allow delegation of that function as appropriate by the Presiding Judges, is
welcome. In practice, that will mean delegation to the Resident Judges who are seised of the
details of the case. The absence of any evidence that the criteria are currently being
misapplied means that there is no reason to believe that the proposals made in the
consultation would result in any significant savings. It is generally noted that the instruction
of a silk means that a case runs more efficiently and therefore more cost effectively.
3.40 As outlined in the Bar Council’s response to the original consultation (Chapter 5,
paragraphs 82-95, pages 124-127) if there were to be a significant reduction in the use of
multiple advocates, there would be an adverse impact on female, BAME and young
advocates, which the Government acknowledges but fails to consider mitigating. It does not
envisage any adverse impact on clients, but admits its data are inadequate, particularly in
respect of disabled clients.
Reducing the fixed representation fee paid to solicitors in family cases covered by the
Care Proceedings GFS
3.41 As set out in the response to the first consultation (Chapter 6, paragraphs 1-13, pages
129-133), the Bar Council does not agree that the public family law representation fee should
be reduced by 10%. A number of respondents, including the Bar Council, urged the
Government to wait to see what, if any, modifications will be needed after the recently
imposed, significant changes to family law are thoroughly implemented. It is disappointing
that the Government has chosen instead not to assess that impact but to enforce a poorly
timed and arbitrary cut that has the potential to expose public funds to greater costs.
Harmonising fees paid to self-employed barristers with those paid to other advocates
appearing in civil (non-family) proceedings
3.42 The Bar Council remains opposed to this proposal on the grounds set out in Chapter
6, paragraphs 14-58 (pages 133-143) of the original consultation response. The Government
is invited to revisit those grounds and to reconsider the implementation of this proposal,
which will lead to serious issues relating to the supply of quality legal services, which will
particularly affect the most vulnerable in society.
3.43 The Bar Council takes particular exception to the assertions in the Government’s
response to the first consultation in relation to the inequality of arms between claimants and
defendants in the court process (Annex B, paragraph 414) and judicial diversity (Annex B,
paragraph 420).
22
3.44 The Government does not accept that any variation in fees between the claimant and
defence undermines the principle of equality of arms:
“…rather it is satisfied that the market should determine what rates are necessary
to secure effective representation.”
3.45 This view fails to take into account the potential impact on access to justice. If a
publicly-funded claimant counsel is being paid significantly less than publicly-funded
defendant counsel, claimant lawyers will almost certainly be less experienced (because they
are likely to be willing to work for a lower fee) or less competent (as the lower fees paid
could equate to less preparation carried out in advance of the case). Such a disparity cannot
“boost public confidence”, which the consultation indicates the reforms seek to do.
3.46 The Government also asserts at Annex B, paragraph 420, in relation to the impact of
this proposal on female and BAME practitioners, that:
“The Government takes the view that the specific level of representation within
given practice areas at the Bar is primarily the responsibility of the Bar in
ensuring equality of opportunity to all areas of practice….the Government does
not believe that legal aid remuneration is the most appropriate policy instrument
by which to achieve judicial diversity.”
3.47 There is no suggestion that remuneration is the most appropriate or sole policy
instrument to improve diversity, but it is certainly a significant contributing factor and the
Bar’s only influence is in response to consultations such as this one. This statement fails to
recognise that decision-making on legal aid remuneration is outside the Bar’s authority. It
seems perverse that whilst the Bar has been supporting the MoJ to improve diversity
through the Judicial Diversity Taskforce, the same Government Department fails to
recognise its own role in that partnership.
Removing the uplift in the rate paid for immigration and asylum Upper Tribunal cases
3.48 The Bar Council continues to oppose the proposals for the reasons set out in its
response to the first consultation (Chapter 6, paragraph 59, page 147), which it does not
intend to rehearse here save to say that the payment of a 35% uplift is an appropriate and
necessary reflection of the fact that the Upper Tribunal is a court of record with standing
equivalent to the High Court with work that routinely requires a higher level of legal
knowledge and legal argument than the First-tier Tribunal.
3.49 The rationale for removing the uplift is both specious and dangerous. While the
consultation states that the provider is best placed to assess the merits of an application for
permission to appeal, knowledge that a risk exists does not justify imposition of the risk on
the person possessing that knowledge. No explanation is offered as to why it is capable of
doing so.
3.50 Finally, the supposed distinction between the scheme in operation from 2005-2010
and that operating since 2010 in truth does not exist as both schemes are materially
indistinguishable. While the consultation paper suggests that the uplift was justifiable when
23
a funding decision was retrospective so that all of the work to which the uplift related was at
risk, from the inception of the scheme involving risk and uplift in 2005 it was only the work
done applying for an order for reconsideration (the equivalent of the application for
permission to appeal) that was genuinely at risk. Thus, save in exceptional circumstances, a
provider was assured of a retrospective funding order in his or her favour once an order for
reconsideration was made.
Expert fees
3.51 The Bar Council welcomes the recognition by the Government that there are some
categories of expert where their proposals require further modification. However, as set out
in the response to the original consultation (Chapter 7, paragraphs 1-36, pages 147-153), the
proposals are flawed in the first instance and require modification throughout. It is not
intended to repeat those arguments here, but it is indicative of the MoJ’s risk-taking with
justice that at paragraph 456 of the Government’s response to the first consultation, it
acknowledges a paucity of data available to predict accurately the market reaction to the fee
reduction.
Back to contents
24
4. Chapter 3: Introducing competition in Criminal Legal Aid market
Q1 Do you agree with the modified model described in Chapter 3? Please give reasons.
Q2 Do you agree with the proposed procurement areas under the modified model
(described at paragraphs 3.20 to 3.24)? Please give reasons
Q3 Do you agree with the proposed methodology (including the factors outlined) for
determining the number of contracts for Duty Provider Work (described at paragraphs
3.52 to 3.73)? Please give reasons.
Q4 Do you agree with the proposed remuneration mechanisms under the modified model
(as described at paragraphs 3.52 to 3.73)? Please give reasons.
Q5 Do you agree with the proposed interim fee reduction (as described at paragraphs 3.52
to 3.55) for all classes of work in scope of the 2010 Standard Crime Contract (except
Associated Civil Work)? Please give reasons.
4.1 Chapter 3, headlined “Procurement of Legal Aid Services”, asks these five questions.
The first question is a general one about the modified model described in chapter 3. The
remaining four deal with particular aspects of the model. It is not clear how the MoJ arrived
at these four questions since Question 1 seems to encompass all of Questions 2-5. To give
Question 1 meaning, this response proceeds on the assumption that the MoJ intends it to be
confined to matters not dealt with in Questions 2-5.
Q1 Do you agree with the modified model described in Chapter 3? Please give reasons.
4.2 The abandonment of PCT and the retention of client choice are two areas where the
MoJ has listened to the Bar Council, the Law Society and virtually every other respondent.
The MoJ’s change of policy is welcomed. The new model is an improvement on that
previously consulted on.
4.3 In response to the original consultation, the Law Society proposed a procurement
solution with which the Bar Council found itself largely in agreement. That solution sought
to remedy some of the more egregious failures in the present duty system, whilst at the
same time seeking to retain choice and diversity in the provision of legal aid. It mitigated to
a significant extent some of the worst consequences of the MoJ’s proposals.
4.4 The Government has since adapted and modified that model to arrive at the two-
contract model now consulted upon. The Bar Council is aware that this has the support of
the Law Society (inevitably in the circumstances), but is equally aware that it does not enjoy
the support of most of the solicitors’ practitioner groups.
4.5 To the extent that these proposals primarily concern solicitors’ contractual
arrangements, the Bar has no direct interest. However, the Bar Council does not take so
narrow a view as it is clear that these proposals will significantly affect the professional
25
client base of the criminal Bar. These proposals are intended to and will lead to fewer firms,
what the Government persistently cloaks as market consolidation. Fewer firms means less
choice for lay clients and reduced opportunities for barristers to build and sustain broad and
diverse practices. These proposals are also intended to and will lead to larger firms. Larger
firms will be able to exert greater economic pressure on the self-employed Bar by, for
example, retaining tied (rather than employed) advocates; paying barristers reduced fees (or
even no fees) for lower crime; by ensuring that a portion of Crown Court advocacy fees is
retained; and sometimes simply by demanding referral fees.
4.6 All these are existing practices that are likely to become more common and the
consequences are bad for the self-employed Bar. These concerns of the Bar Council are not
born out of self-interest and should not be misconstrued as such. The Bar Council is clear
that these proposals are bad for the criminal justice system as a whole, a system whose
resources are already under severe strain because of deep cuts elsewhere e.g. to the CPS, the
court system, prisons and probation. This was the view in the Bar Council’s original
response and there has been no evidence from the Government that would lead to a
different view being taken.
4.7 In its original response, the Bar Council pointed out that not every precondition that
Lord Carter regarded as necessary has been implemented (see paragraphs 11-23 at page 63).
Despite this, the MoJ’s response still talks of economies of scale (for instance in paragraph
2.24 and at paragraphs 3.1, 3.2, and 3.4) when Lord Carter himself pointed out, there is no
convincing evidence of such economies of scale. In fact, as has been often observed, the
lowest cost base can be achieved by sole practitioners working from home, where all costs
are kept to a minimum (rather like the self-employed Bar).
4.8 Paragraph 4.16 of the original consultation said: “office overhead costs can account to up
to 30% of cost for small organisations and these could be reduced by consolidation of back office tasks
in larger organisations” and paragraph 3.1 of the response says “reducing back office costs” But
both the previous consultation and the Government’s response are light on detail on exactly
how these cost savings are to be achieved. By moving to cheaper, less accessible premises?
By outsourcing back office work to developing countries? In practice, the one area where
large firms can and will achieve savings is by reducing staff costs, usually through paying
less for fewer and less qualified staff to perform tasks that would and should be done by
lawyers. None of these changes will put quality into the criminal justice system. This process
of ‘de-skilling’ has been going on for some years and will no doubt continue; it has the effect
of driving down quality in the criminal justice system.
Q1: Contract Scope: Paragraphs 3.12-3.17
4.9 The Bar Council agrees with the exclusion of Crown Court advocacy and VHCCs
from the scope of the crime contracts. It does not agree with the proposed split into Duty
Work and Own Client Work contracts. The MoJ response at Annex B, paragraph 215, states
“there have been no obstacles introduced by Government which would prevent them [chambers] from
restructuring to enable them to” bid for a contract. This is not correct. For example, paragraph
3.86 of the consultation states that bidders for a contract will be required to hold either SQM
26
or Lexcel quality marks, neither of which are Bar quality marks. This is an obstacle
preventing chambers from bidding for a contract.
4.10 In any event, it is disingenuous for the Government to claim it has introduced no
obstacles preventing chambers bidding when it is perfectly well aware or should be that the
very structure of the self-employed Bar as a referral profession is a huge (and some would
argue insurmountable) obstacle to bidding. The practical reality is that these are contracts
for solicitors’ firms or providers with similar business models, they are not designed to
enable chambers as presently organised to bid.
Q1: Contract length: Paragraphs 3.18- 3.19
4.11 The Bar Council did not agree with the original proposal for 3 years with an option
to renew for 2 years as it was not evidence-based (see p.82 paragraphs 90-93). The proposal
that the contracts should be for a four-year term with the Government having the option to
extend the contract to five years is a compromise of sorts. A five-year contract is about the
right length to enable solicitors to raise funds and invest in equipment but our view is that
there is a tension between the need for a long enough contract period for firms to raise
money and invest and a short enough period to enable new providers to enter the market.
That tension remains unresolved.
Q1: Exclusivity: Paragraphs 3.25-3.26
4.12 So far as exclusivity is concerned, the Bar Council agrees.
Q1: Types of provider: Paragraphs 3.37- 3.40
4.13 The Bar Council notes that, as with the original consultation, the MoJ does not
propose to limit the types of organisation that may bid for contracts, providing the
applicable requirements of the tender process, including the required quality standards, are
met. The Bar Council takes the view that this will allow, indeed, encourage, providers with
no practical experience of delivering legal services to enter into the market and, with their
far greater financial muscle, these providers will likely be able to undercut existing
providers.
4.14 While in this connection, the Bar Council is pleased to see in paragraph 3.89 that the
Government is considering including in the Pre-Qualification (PQQ) criteria the evaluation
of the applicant’s experience, notably the experience of staff and experience of the
management team in managing a comparable service, this does not go far enough. Not to
put too fine a point on it, any provider that does not have experience in providing legal
services is likely to be entering this market only because it sees a potential source of profit
and the opportunity to achieve that profit by driving down its costs. Driving down costs in
this context almost always means lower levels of skill and lower rates of pay for staff. Such
outcomes are not conducive to achieving a well-run criminal justice system; indeed, they are
inimical to it. Extracting the maximum profit for directors and shareholders who do not
themselves participate in the running of the criminal justice system and are therefore not in
any true sense stakeholders will, over time, damage the quality of this system. There are
27
some very well-known companies (over whom there has been much public disquiet as to
their effectiveness and even their probity) which have a lot of experience in bidding for,
winning and running large Government contracts to provide public services. The changes
the Government wants to introduce to the provision of legal services are almost tailor-made
for these companies. It is to be hoped that the Government will insist that evidencing not
just a genuine commitment to the values of the legal services market but relevant experience
in the market will be crucial factors in allowing entrants into the business.
Q1: Contract Value: Paragraphs 3.41- 3.45
4.15 While the response states the obvious, namely, that contract value in relation to Own
Client Work depends on the volume of business generated by the individual firms, in
relation to Duty Provider Work the overall value will depend on the number of contracts in
each area. The intention is that providers will be given an equal share of police station and
magistrates’ court duty work but the value of that share will vary according to the area
concerned. Since by paragraph 3.35 the Government seems to take the view that they should
offer no more than 570 contracts for duty provider work, each one of which is worth £1
million pounds in steady state, it seems obvious that in some cases providers will have to
bid for Duty Provider Work across several areas. Since there appears to be no requirement
that providers service contiguous areas, the prospect remains that potential providers will
bid in the most lucrative areas.
Q1 Client Choice: Paragraphs 3.46-3.48
4.16 The Bar Council is pleased to see that the Government has conceded that there must
be client choice so that the position remains as it is as present.
Q1 Case Allocation: Paragraphs 3.49-3.50
4.17 Again, the Bar Council is pleased that the Government proposal is to retain the
present system of case allocation and agrees with that proposal.
Q2 Do you agree with the proposed procurement areas under the modified model
(described at paragraphs 3.20 to 3.24)? Please give reasons
4.18 The Bar Council addressed this point at Chapter 4,paragraphs 94-100 (page 83) of its
original response. It did not agree with the proposals which seemed to be based not so much
on evidence as on administrative convenience.
4.19 The Government’s response to what was widespread opposition is interesting and
not untypical. After quoting the views of representative bodies such as the Bar Council, The
Law Society, the CBA, LCCSA and LAPG, all of whom opposed its proposals to a greater or
lesser extent, the Government counterbalances this opposition by reference to “not all
respondents” or “some respondents” (paragraph 242, Annex B). These respondents have not
been characterised or identified so the impression is given that the views of individual and
anonymous respondents carry equal or even greater weight than representative bodies who
28
speak on behalf of thousands of members. Preferring such views simply because they agree
with the Government’s own proposals is not merely perverse, it is undemocratic.
4.20 So far as these proposals go, the Bar Council welcomes the three-fold increase in
London to nine areas and the splitting of 12 other areas into two. These are steps in the right
direction but they do not go far enough. There is still no evidence that CJS areas are
appropriate and the concern remains that administrative convenience and the desire to
create larger providers are the drivers here. In this context, the Bar Council welcomes the
fact that the further Otterburn report jointly commissioned with the Law Society will take
account of the proposed size of the procurement areas. The Bar Council will reserve its final
view on this issue until that report is published.
Q3 Do you agree with the proposed methodology (including the factors outlined) for
determining the number of contracts for Duty Provider Work (described at paragraphs
3.27 to 3.35)? Please give reasons.
4.21 At paragraph 2.29, the MoJ states: “The Government continues to believe that without any
Government intervention the market will not take any action to consolidate….” There is a rich
irony in a government that strongly believes in the free market asserting without a trace of
irony that this particular market needs government intervention. Apparently, uniquely in
this case, the Government knows better than the market what is good for it. In fact, this
market works well enough to support 1,600 diverse providers and a strong self-employed
Bar. What is causing market fragility is the constant cutting of fees and the repeated
attempts to re-organise it to suit the MoJ’s pre-determined ideas. What the market really
needs is for the Government to interfere less, for example by not consistently reducing the
fees it pays (a topic dealt with in detail later in this response in relation to advocacy fees).
4.22 Nowhere is this dichotomy better illustrated than in paragraph 3.4, bullet 2:
‘Economies of scope’. Providers will be obliged to deliver the full range of litigation services, as
well as magistrates’ court advocacy, which would enable providers to resource their contract
in the most efficient way. Providers being obliged in order to be enabled sounds rather like a
market is being forced to be free.
4.23 The MoJ has proposed a two-contract solution. It will place no limit upon the
number of Own-Client contracts which, according to paragraph 3.28, account for about 60%
of criminal legal aid cases. This is certainly a move in the right direction, although it is by no
means a complete answer to the objections that were raised to the original proposal.
4.24 However, the MoJ now seeks to reduce the number of Duty Provider Work contracts
to no more than 570 which is based on fees paid of £570m in steady state and would equate
to a minimum contract size of £1m (paragraph 3.35).
4.25 It is difficult to assess exactly what kind of overall reduction in providers will be
effected by these proposed changes since it is not known how many of the existing
providers only do Own Client Work. The Bar Council understands that most firms would
find it difficult if not impossible to survive merely on Own Client Work without the
additional income from Duty Provider Work; Duty Work also creates Own Client Work for
29
the future. It is interesting to note that the paper asserts that Duty Provider Work accounts
for 40% of cases receiving criminal legal aid rather than 40% by value (paragraph 3.28). It is
the latter figure that is surely a better guide to the feasibility of this proposal.
4.26 If firms cannot survive purely on Own Client work, the practical reality is that the
market will be reduced by these proposals from its existing 1,600 providers to not much
more than the 570 Duty Work providers, a reduction of more than 60%. This is a very drastic
reduction in the number of providers in the market.
4.27 The Bar Council’s view that a legal aid firm could not survive simply by having an
Own Client work contract is reinforced by what is said in paragraph 3.31 of the
Government’s response. The second of the three criteria for determining the number of
contracts for Duty Provider Work is ‘sufficient case volume to allow the fixed scheme to work’. As
that paragraph says: “to manage the level of risks of financial loss faced by providers with a fixed fee
scheme we would need to offer sufficient value of work in order for them to cope with variations in
case mix.”. However, Own Client work is also fixed fee and so firms that only do Own Client
work are subject to just the same risk as Duty Work providers. This means, if the
Government’s argument is correct, that firms that did only Own Client Work would have to
be large enough to manage the level of risk. This in turn means that even on the
Government’s own proposal, there would have to be consolidation of firms which wanted to
or were only able to do Own Client work.
4.28 Since any firm that does Duty Work will necessarily do Own Client work, the almost
inevitable consequence of the Government’s plan is that it will only make commercial sense
for a legal aid provider to bid for Duty Work. The practical outcome may well be that there
will be a very small number indeed of Own Client providers, almost certainly, very small
one- or two-partner firms.
4.29 However, this is necessarily somewhat speculative in the absence of sufficient data. It
is noted that paragraph 3.33 of the paper states: “In order to help inform our analysis of
sustainability and the final decision on the number of contracts for Duty Provider Work intend to
jointly commission with the Law Society a further piece of research to get more detailed information
for this purpose. It would also be necessary for such work to take into account the proposed size of
procurement areas.” The Bar Council welcomes this further work and understands that the
various solicitors’ representative organisations will urge their members to co-operate with
the further research so that accurate data can be provided.
4.30 Until that research is available, the Bar Council’s position is that a reduction in the
number of providers of the magnitude sought in this response is likely to have an overall
adverse effect on access to justice. It is hoped that the data from the joint research proves this
fear is wrong.
Q4 Do you agree with the proposed remuneration mechanisms under the modified model
(as described at paragraphs 3.52 to 3.73)? Please give reasons.
4.31 The Bar Council is very concerned that the MoJ remains intent on cutting fees for
‘lower crime’ work under the proposed new contracts by 17.5%, as originally proposed.
30
Feedback from solicitors’ firms is that even with efficiencies, restructuring, mergers and
other measures, such a fee reduction cannot be absorbed by firms without diminishing the
quality of service.
4.32 The Bar Council is pleased that Crown Court advocacy stays outside the scope of the
new contracts but remains concerned that the reduced fees will still lead to firms having
recourse to the income streams from advocacy. In dealing with this concern of the CBA, the
Bar Council and individual practitioners in their responses, the Government airily replied
that solicitors acting in accordance with their professional code of conduct “would continue to
instruct members of the independent referral Bar” (Annex B, paragraph 215). This is a fine
example of how the Government picks and chooses arguments to support its ideas because
in paragraph 1.20, the paper asserts in relation to AGFS that harmonising the cracks and
guilty pleas and tapering Daily Attendance Fees (DAFs) will “encourage the defence team to
give early consideration of plea”, the clear inference being that the barristers will breach their
professional obligation and get clients to plead guilty in order to maximise their income. If
that is not the inference, why are the fees weighted that way?
4.33 This is a repetition of the offensive connection the MoJ makes between fees and the
advice provided by barristers. Barristers always give consideration to the benefits to the
defendant of an early plea (and to the disadvantages). That advice is not given on the basis
of what would benefit the barrister financially and the oft-repeated allegation to the contrary
is not merely offensive, it betrays a prejudiced opinion of the integrity of defence lawyers.
4.34 There is no doubt that solicitors have been forced to retain work in-house because it
is financially lucrative and whether that is or is not a breach of their code is wholly
irrelevant - it happens. Solicitors’ firms probably will no longer employ in-house advocates
as it has become increasingly apparent that this is an expensive option, but they will want to
use the income streams that advocacy generates. They will instruct advocates who are
prepared to work for less and/or by retaining part of the AGFS fee through being the
instructed advocate.
4.35 In other words, the savage fee cuts associated with the proposed two contract
solution - essentially all fees are to be cut by 17.5% - will continue the trend begun by the
introduction of the LGFS, for firms and providers to look to the AGFS income streams as a
way of bolstering income.
4.36 Despite the phasing and timing of the cuts (8.75% in early 2014, 8.75% spring 2015),
the Bar Council is wholly opposed to these fee cuts. The market is presently in a fragile state
having endured significant cuts in legal aid in the recent past, a process begun years before
this Government’s programme, and cuts of this size will only serve to make the fragility
worse. This is turn will adversely affect the quality of the criminal justice system.
4.37 The Bar Council does not agree that lower crime fees should be reduced by 17.5%.
Fees for these areas of work are already very low, and many firms would not be able to
survive, even with mergers and other restructuring. It would also have an impact on the
junior Bar who undertake unassigned magistrates’ court work. To reduce the standard fee to
providers for representation in the magistrates’ court to £310.45 (paragraph 3.65) would
31
reduce the income of providers even further and make the situation for the junior Bar even
worse.
4.38 The Bar Council is troubled by the police station attendance fixed fee which is to be
at the same national rate of £200.64 (including VAT) after the phased 17.5% cut. This rate
applies to all offences, from the most trivial shoplifting to the most serious murder. It is not
at all fanciful that a solicitor might spend 10 hours in a police station in a murder after which
the client is repeatedly bailed before not being charged. At the rate of £20 per hour, and
since at least half the fee would have been paid to an accredited police station
representative, the fact is that advice in one of the most serious cases imaginable is being
given by somebody being paid £10 an hour or even less.
4.39 The proposal to impose a national fixed fee ignores all the reasons why differential
rates are currently in place and it ignores the careful calculations that were undertaken to
arrive at the appropriate rates. It disregards the wholly different and often exceptional
nature of criminal investigations in the capital. London has more complex cases requiring
longer investigations with more defendants and more interviews. To treat cases in the
capital as average is blinkered. It will lead to a real deterioration in the quality of the service
provided and an increased risk of miscarriages of justice.
4.40 It should be noted that the effect of the national fee does not equate to a fee cut of
17.5% in the capital, but to an average fee cut of very nearly double, over 34%. In Richmond
the cut is 39% and in Heathrow, whence very serious drugs cases emanate, the cut is nearly
47%.
Q5 Do you agree with the proposed interim fee reduction (as described at paragraphs 3.52
to 3.55) for all classes of work in scope of the 2010 Standard Crime Contract (except
Associated Civil Work)? Please give reasons.
4.41. The Bar Council does not agree that fees should be cut by 17.5% but if such a cut is to
be imposed, two phased cuts of 8.75% are preferable.
Back to contents
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5. Chapter 4: Advocacy fee reforms
Q6 Do you prefer the approach in:
Option 1 (revised harmonisation and tapering proposal); or,
Option 2 (the modified CPS advocacy fee scheme model)
Please give reasons.
5.1 The Bar Council is grateful for the fact that that the proposals for the amendment of
the Advocates’ Graduated Fee Scheme (the AGFS) have been reconsidered and revised so as
to remove some of the worst features of the original proposals made in Chapter 5 of the
original consultation paper.
5.2 However, the Bar Council remains unable to agree with the revised proposals. As
explained at pages 80 and 105-107 of its initial response, both the amount paid to individual
advocates, and the overall cost of the AGFS, have reduced significantly in recent years.
Annex 3 contains further detail of the enormous cuts which have already been implemented
and which are still taking effect. Against that background, further significant cuts such as
those proposed are, as we said in the response to the first consultation paper, likely to lead
to huge reductions in the incomes of barrister advocates, making it likely that many of them
would leave practice, thereby undermining the long-term sustainability of the criminal Bar
as a profession and undermining the sustainability of a body of experienced, specialist
criminal advocates able to present serious and complex cases to the required standard.
5.3 As explained in pages 104-121 of the earlier response, the original proposals were
unsupported by evidence, were based on unsupported and false premises, would create
perverse incentives (while creating no incentives to prevent delay caused by the CPS or
other agencies) and were disproportionate. Option 1 in the consultation paper is a revised
version of the original proposals which has abandoned some, but, as explained below, still
retains many of the objectionable features of the original proposals.
5.4 The Bar Council proposed, as an alternative to the original proposals, a simplification
to the AGFS which was intended to achieve savings in the administration of the scheme,
while being “cost-neutral” in relation to the overall amount of fees paid to advocates under
the AGFS.27 Option 2 in the September consultation paper is based on these proposals, but
with the addition of proposed fee cuts, which would be likely to have the effect referred to
in paragraph 3 above.
5.5 Accordingly, the Bar Council’s answer to question 6 in the consultation paper is that
it does not favour either Option 1 (revised “harmonisation” and tapering proposal) or
Option 2 (the modified CPS advocacy fee scheme model). Both would have harmful effects,
although, for the reasons set out below, the harmful effects of Option 1 would be greater
than those of Option 2. Instead, however, the Bar Council invites the Government to
consider a version of Option 2 which is intended to be cost-neutral in terms of fees paid, but
27 The figures calculated by Professor Chalkley were based on the most recent year for which data was
then available. It is accepted that it is appropriate to recalculate these figures based on 2012/13 data.
Regrettably, Professor Chalkley’s figures also contained an error, referred to below.
33
to achieve administrative savings by doing away with the need for an accurate count of the
pages of evidence.
5.6 In addition, whatever measures the Government may implement, the Bar Council
hopes that there will be more sharing of data so as to enable the effects of any changes to be
reviewed and assessed. As explained below, the Bar Council has been unable to verify the
calculation of Government’s predictions as to the likely effects of its proposed changes, and
it questions in any event the assumptions on which those predictions are based. As
mentioned elsewhere, this lack of data also prevents a proper equality and diversity impact
assessment to be carried out.
Reductions in rates: the system is at breaking point
5.7 As explained at pages 80 and 105 - 107 of the response to the original consultation
paper, the AGFS and its predecessor have seen repeated reductions in the rates paid for
advocacy since 1997.
5.8 Annex 3 sets out the further work done by Professor Chalkley since June 2013, with
the benefit of some additional data provided by the Government. Lord Carter’s review,
which came into effect in 2007, was the one and only occasion since the inception of the
AGFS when consideration has been given to the appropriate level of prices implied by the
AGFS. The revised prices proposed by Lord Carter were set with a view to establishing
appropriate remuneration for a broad range of seniorities of criminal advocates and thus
inter alia of ensuring an adequate return on investments in criminal advocacy.
5.9 However, since the adoption of the revised scheme in 2007, fees payable under the
AGFS:
have not been increased, and therefore have been eroded in real terms by the
effects of inflation; and
have instead been subject to a series of reductions.
5.10 Professor Chalkley’s findings are that:
As of 2013, AGFS rates have been reduced by 21% in cash terms, equating to
37% in real terms;
The largest reductions have been for cracked trials (34.7% cash and 48% real)
and the smallest for guilty pleas (14.4% cash and 31.5% real);
These totals are made up of a variety of experiences across different offence
groups. Category G cases have reduced by far the most (50% cash and 60%
real), followed by category A (25% cash and 40% real);
Across advocate roles, QCs and Led Juniors have had the largest reductions
and Leading Juniors the smallest;
If either of the Options set out in the Consultation Paper were to be adopted,
the overall reduction in AGFS rates since 2007 would be 26.4% in cash terms
and 41% in real terms.
5.11 The Bar Council also pointed out in its response to the first consultation paper that
these repeated reductions in AGFS rates have led to a situation where the level of
34
remuneration for the majority of barristers practising in criminal advocacy is so low that
there is no more scope for reductions without prompting significant numbers of
practitioners to give up criminal advocacy as economically unsustainable.
5.12 The most recent Legal Aid Statistics28, published on 9 September 2013, support this.
They indicate that in 2012/13:
83.8% of barristers received less than £100,000 (including VAT, of up to
£16,667) from the AGFS and VHCCs (where it is proposed to cut rates by
30%);
62.4% of barristers received less than £50,000 (again including VAT, of up to
£8,333);
The average amount paid to barristers from the AGFS and VHCCs was
£52,051 (again including VAT, which would amount to £8,675).
5.13 These are gross figures, from which not only VAT has to be paid, but also expenses
(such as premises, clerks and travel) and pension contributions. They underline the Lord
Chancellor’s statement (in his interview in the Law Society Gazette published on 20 May
2013) that:
“I think most criminal legal aid lawyers in the junior Bar are not particularly well
paid.”
5.14 The contrast with other publicly-funded professions is striking. The following data
from the Office for National Statistics show that advocates have already suffered a wholly
disproportionate level of cuts.
Annual pay - Gross (£) - For full-time employee jobs29
2007 2012 %
Description (ONS occupation code in brackets) Mean (£) Mean (£) Change
Medical practitioners (2211) 69,406 77,842 12%
Teaching and educational professionals (23) 29,376 37,472 28%
Police officers (sergeant and below) (3312) 36,407 40,232 11%
Public services and other associate professionals (356) 26,055 30,462 17%
5.15 Thus, although some public professions have received increases (which may not
have kept pace with inflation) over this period, all have seen increases in cash terms. By
28 https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/238115/legal-aid-
statistics-090913.pdf 29 The annual pay figures are from the Office for National Statistics' Annual Survey of Hours and
Earnings. The survey is based on a one per cent sample of employee jobs taken from HM Revenue &
Customs PAYE records. The mean income figures are taken from the ONS Table 14.7a Annual - Gross
(£) - For full-time employee jobs: United Kingdom. 2007 figures are from:
http://www.ons.gov.uk/ons/rel/ashe/annual-survey-of-hours-and-earnings/2007-results/2007-table-
14.zip 2012 figures are from: http://www.ons.gov.uk/ons/rel/ashe/annual-survey-of-hours-and-
earnings/2012-provisional-results/2012-provisional-table-14.zip
35
contrast, as set out above, advocates have suffered very large cuts in cash terms and even
larger cuts in real terms.
5.16 Despite this, the September consultation paper proposes:
cuts of 30% to VHCC rates;
cuts which average 11% (Option 1) or 8% (Option 2) to trial rates;
cuts which average 18% (Option 1) or 2% (Option 2) to cracked trial rates; and
either:
o cuts of 11% (Option 2) to guilty plea fees; or
o an increase (Option 1) in those fees which, if implemented, would
benefit solicitor advocates rather than barristers.
5.17 It is accepted at page 12 of the Impact Assessment accompanying the Next Steps
consultation paper that, whichever option were to be adopted, the result would be a
reduction in the annual fee income of all barristers, including the least well paid, with the
reduction being greater if Option 1 were adopted than Option 2. The Bar Council has not
been provided with the data which would enable the verification of those figures, although
it is clear that the figures for Option 1 are likely to be a significant under-estimate of the
effect on barristers, since they assume that barristers’ workloads would remain the same,
however, Option 1 would encourage solicitors to “cherry-pick” the better paid guilty plea
cases. However, there can be no doubt that what is proposed is a further reduction in the
income of all barristers doing criminal advocacy (which would come on top of the 30% cuts
proposed in VHCC cases).
5.18 As stated in the response to the earlier consultation paper, further cuts to the rates
paid under the AGFS would serve only to precipitate a move by experienced barristers out
of criminal legal aid work and to discourage new entrants to the profession from
commencing a career as specialist criminal advocates, thereby seriously damaging the work
of the criminal justice system, which depends for its efficient operation on the skill and
experience of the advocates appearing before the courts.
5.19 It would also discourage new entrants to the profession from commencing a career
as specialist criminal advocates. It is now common for young barristers to start their careers
many thousands of pounds in debt. This problem is particularly acute for young barristers
who have not had the benefit of financial support from their parents whilst at university and
while undertaking the Bar Professional Training Course. The Bar Barometer published in
2012 showed that 32% of pupil barristers had more than £20,000 of debt30. The levels of debt
for students entering the profession in the future are likely to be much higher, as university
tuition fees have now increased to a maximum of £9,000 a year. A student starting university
today can expect to pay £9,000 a year in tuition fees, and over £17,000 to undertake the Bar
Professional Training Course; with living costs also taken into account, students without
independent financial support can expect to qualify as a barrister with debts in the region of
£75,000.
30 http://www.barcouncil.org.uk/media/177918/bar_barometer_nov_2012.pdf
36
Option 1
5.20 Option 1 includes a proposal to increase the fees paid for guilty pleas, while reducing
fees for cracked trials and trials. It is estimated in the Next Steps consultation paper that the
average increase in fees paid for guilty pleas would be 23%.
5.21 For guilty pleas, the increase in fees in individual cases would vary, depending upon
the category of offence and the number of pages of prosecution evidence. For example, in
the case of a junior alone conducting a guilty plea in a robbery case (category C) with 100
pages of prosecution evidence, the fee would increase by 29%, from £509 to £809, as follows:
Current Proposed
Basic fee £449 £470
Evidence uplift £60 £189
Total £509 £659
5.22 Likewise, for trials and cracked trials, the reduction in fees in individual cases would
vary, depending upon the category of offence, the number of pages of prosecution evidence
and (in the case of trials) the number of days taken. The average reductions are estimated in
the second consultation paper to be 11% for trials and 18% for cracked trials.
5.23 As the Bar Council pointed out in the response to the first consultation paper, this
would have the bizarre result of:
increasing the fees paid in the cases which require the least work and are the
least demanding (and which have seen the smallest cuts since 2007); and
substantially decreasing the fees paid in the cases which require the most work
and are the most demanding (and which have seen larger cuts since 2007).
5.24 There is no justification for this, and it would create perverse incentives.
5.25 The supposed justification for this proposal is set out in paragraph 4.4 of the
September consultation paper, which states that:
“Option 1 supports the aim of efficient justice, promoting early consideration of
the question of plea and the earliest possible resolution of contested matters.”
5.26 The premise for this line of reasoning is that lawyers are not currently considering
the question of plea with their clients as early as they could and should do. No evidence is
produced in support of this assumption. It has already been pointed out in the response to
Chapter 3 above that it is highly offensive to premise changes on the basis that barristers will
respond to a financial incentive when advising defendants how to plead.
5.27 Moreover, the proposal would create an incentive for “cherry-picking” by plea-only
advocates and other solicitor advocates who wished to earn the increased fees for guilty
pleas but not the reduced fees for trials. The Government are wrong to dismiss this (e.g. in
37
paragraphs 7.3.11 and 8.2.4 of Annex F to the Next Steps consultation paper). It is obvious
that Option 1 would create a financial incentive for solicitors to keep guilty plea advocacy
work in-house. At a time when LGFS rates are being savagely cut and solicitors’ firms are
under an existential threat, here is an area of work for which the Government is proposing
to pay more. It would be naïve to think that solicitors would not be bound to be attracted by
the extra money on offer from the Government.
5.28 For the Bar Council’s part, it is considered that it is inevitable that Option 1 would
lead to more solicitors’ firms doing guilty plea advocacy (whether through plea-only
advocates or otherwise). But even if the Government baulk at the word “inevitable” (as it
does in paragraph 8.2.4 of Annex F), it cannot deny that this consequence is very likely.
Perhaps not every solicitors’ firm would take this course, but the likelihood is that many
would, with the result that junior barristers would end up doing fewer and fewer guilty
pleas, and consequently depending more and more on trials and cracked trials, where,
under Option 1, the Government is proposing cuts averaging 11% and 18% respectively.
5.29 At the same time, by reducing the fees paid for trials, Option 1 (and, albeit to a lesser
extent, Option 2) would encourage the experienced and skilled advocates who currently
conduct trials to move out of criminal advocacy, and would discourage young advocates
from starting a career in criminal advocacy. The result would be that trials would be
conducted by less able and less experienced trial advocates.
Option 2
5.30 Option 2 does not include the drawbacks of Option 1 highlighted in the previous
section. It offers the prospect of administrative savings, both within the LAA and for the
courts and the CPS, as page counts would no longer be necessary in all but a small fraction
of cases (and even then the only purpose of the page count would be to determine whether
the threshold for the enhanced basic fee had been crossed). Thus:
The CPS would be spared the expense of counting the pages of evidence in all
cases; and
The LAA would be spared the expense of identifying and resolving issues as
to page counts when dealing with applications for payment.
5.31 The Bar Council understands from information supplied by the LAA that in the last
12 months it received about 17,000 claims for redetermination of rejected AGFS claims and
that sampling indicates that a little under 10% of those resubmissions were in respect of
page counts, i.e. where the advocate was claiming a different page count from what was on
the LAA computer system. The LAA gets its page count figure from the courts, which is
supposed to be updated with a running total of page count as Notices of Additional
Evidence are served during the course of the trial. However, there are often discrepancies.
When the LAA investigate it will often make enquiries of the courts and sometimes also of
the CPS to check what figure it has for page count, in order to compare it with what is on its
computer system and on the advocate’s claim form.
38
5.32 If Option 2 were adopted, this work would not have to be done. It would mean over
a thousand fewer AF2 claim forms to be investigated and processed by the LAA each year. It
would mean savings to the courts and CPS in no longer having to maintain precise page
counts for the purposes of the LAA and no longer having to answer LAA enquiries about
page counts. It would also remove the need to ensure that page count evidence is retained
by CPS and LAA for audit purposes, because auditors would no longer need evidence of
page count to confirm the accuracy of the payment, apart from the less than 5% of cases that
go into the higher threshold.
5.33 Looking at Government expenditure as a whole, these savings are likely to be
significant, and the Bar Council would have expected any proposed cuts in rates to be
reduced accordingly.
5.34 However, given the background set out in Annex 3 and earlier in this chapter, and
the real risk of serious and irreparable harm to the criminal justice system, the Bar Council
urges the Government not to introduce any further cuts in rates under the AGFS. Annex 4
contains a proposal for a revised version of Option 2 which would retain the administrative
savings of abolishing page counts, while being cost-neutral in terms of the fees paid to
advocates.
3.35 Annex 4 has been prepared on the same principles as the paper provided to the MoJ
in July 2013, save that:
2012/13 data has been used as the starting-point;
The differential between rates payable to QCs and to juniors alone has been adjusted,
in line with the Government’s intention that the effect of any changes should be felt
more by the more senior and better paid advocates;
An error in the original figures has been corrected. In the original figures, enhanced
base fees for Led Juniors were set at 50% of the Leading Junior figures rather than, as
is usual, 50% of the QC figures (this error was also carried through into the figures
proposed in Annex I to the September consultation paper.)
Further administrative efficiency
5.36 Data recently provided by the LAA suggests that there is more scope for greater
efficiency in the administration of the AGFS. It appears that the identity of the instructed
advocate (IA) is the most common reason for the LAA to reject AGFS claims. In August
2013, approximately one third of rejects (428 rejects out of 1276) were because of issues with
identifying the IA.
5.37 This issue arises because there is often uncertainty about who the IA actually is. The
court record can be different to the understanding of the advocates involved, e.g. because
the court record is not necessarily updated when the court is informed that there is a change
to the IA, or because the court record is changed without notification to all concerned.
5.38 The concept of the IA was founded on an ideal of case ownership that has not always
operated in practice. The intended court practice was that the trial advocate would conduct
39
the PCMH, and that there would no longer be unnecessary mentions that had to be covered
by an advocate. This intention, however, has not been reflected in practice. The PCMH and
other preliminary hearings are not necessarily attended by trial counsel. This means that
there is no reflection in practice of the concept of case ownership on which the operation of
the IA rule is based. This has inevitably created issues for the operation of the rules for
identifying the IA, as indicated by the high level of rejected AGFS claims.
5.39 The Bar Council suggests that the instructed advocate should be defined as the
person who has conducted the main hearing (plea, crack or trial). This would provide
certainty. The advocate conducting the main hearing will also have all the necessary
paperwork to complete the fee claim. Having done the bulk of the work on a case also
suggests the main hearing advocate should be required to bill the case, receive the total
payment and make the necessary payments to the other advocates involved.
5.40 The result would be a further saving for in time and expense for both the LAA and
the courts.
Back to contents
40
6. Chapter 5: Impact Assessments
Q7 Do you agree that we have correctly identified the range of impacts under the
proposals set out in this consultation paper? Please give reasons.
6.1 The Impact Assessment carried out by the Ministry of Justice fundamentally
misunderstands the issues of equality and diversity at the Bar and the attempts that are
being made to create a more diverse profession. The failure to look at the following key data
sources when conducting its assessment demonstrates the MoJ’s reluctance, yet again, to
evaluate the impact of the proposed changes using accurate figures:
Bar Council’s Survey of Barristers Changing Status: Exit Survey 2011 [Exit Survey]
Court Diversity Statistics 2012-2013 [Judicial Diversity Statistics]
Bar Barometer 2012
6.2 These along with other reports such as Lord Neuberger’s “Entry to the Bar” final
report, published in November 2007, which commented that the “level of income and the
uncertainty over future income are significant factors in relation to retention”31, demonstrate that
the proposed cuts will have a significant effect on the diversity of the Bar (and the future
judiciary).
6.3 The suggestion in the Government’s Impact Assessment that since white men
dominate the Bar they are the ones that will be disproportionately impacted is disingenuous.
6.4 The primary responsibility of the MoJ is to administer justice; it is not simply to
“provide fair and legal aid to those clients in most need”. The sustainability of the entire
criminal justice system is within the MoJ’s remit and to have a justice system which is
overseen by a diverse judiciary and has diverse advocates has to be central to that. It is
critical to the perception within society that the criminal justice system is fair and just. The
MoJ’s own equality statement states that “we are committed to ensuring that equality
remains at the heart of what we do”. Paragraph 8.2.5 of Annex F appears to run contrary to
this. The MoJ should be encouraging diversity and consider taking positive action to
increase diversity. Different parts of Government are sending mixed messages. Whilst the
MoJ (through these cuts) will reduce diversity at the Bar (and in the future judiciary), the
CPS with its “Expectations Statement” asks chambers to put in place “positive action
programmes” and to address “under-representation”.
Data
6.5 Of those who left the Bar between 2001-2010, the majority (59%)32 worked in areas of
publicly-funded work. 66%33 of the women leaving practiced in publicly-funded work. 48%34
31 http://www.barcouncil.org.uk/media/164103/finalreportneuberger.pdf. 32 General Council of the Bar Exit Survey, page 6 (December 2011). 33 General Council of the Bar Exit Survey, page 6 (December 2011). 34 General Council of the Bar Exit Survey, page 6 (December 2011).
41
of leavers overall were women and 11%35 were BAME practitioners. 70%36 of leavers who
practised in publicly-funded work highlighted a financial factor having a bearing on their
decision to leave and the key reason for those leaving the criminal Bar was financial.
BAME practitioners
6.6 Although the self-employed Bar has overall 9.7%37 BAME practitioners, 62%38 of
BAME practitioners leaving the Bar practised mainly in the area of publicly-funded work.
49%39 of BAME practitioners leavers practised in crime with a further 20%40 having a mixed
criminal and civil practice. “Financial factors” were cited by 77%41 of BAME leavers of the
Bar. The impact further cuts will have on BAME practitioners at the Bar is therefore clear.
Any further cuts will impact disproportionately on BAME practitioners and will lead to a
reduction in their number. The fact that there are only 15 (2.3%) BAME circuit judges as
opposed to 57142 white circuit judges should be source of shame for the Government and
something it should actively address. Shrinking the ranks of BAME practitioners at the Bar,
which will be the consequence of the proposed cuts, from whom the judiciary is
predominantly chosen, will make addressing that shocking statistic harder to redress.
Women
6.7 Although the self-employed Bar has 32.4%43 overall women practitioners, 66%44 of
women practitioners leaving the Bar practise mainly in the area of publicly-funded work.
47%45 of women practitioners leaving the Bar practised in crime with a further 8%46 having a
mixed criminal and civil practice. 24%47 practised in family law which has also been subject
to extensive cuts. “Financial factors” were cited by 66%48 of women leaving the Bar. The
impact further cuts will have on women practitioners at the Bar is therefore clear. Any
further cuts will impact disproportionately on women practitioners and will lead to a
reduction in their number. Although the figures regarding women circuit judges are better
than that of BAME circuit judges, at only 18.5%49 this percentage still needs improvement.
35 General Council of the Bar Exit Survey, page 6 (December 2011). 36 General Council of the Bar Exit Survey, page 38 (December 2011). 37 Bar Barometer, page 20 (November 2012). 38 General Council of the Bar Exit Survey, page 31 (December 2011). 39 General Council of the Bar Exit Survey, page 30 (December 2011). 40 General Council of the Bar Exit Survey, page 30 (December 2011). 41 General Council of the Bar Exit Survey, page 38 (December 2011). 42 2013 Judicial Diversity Statistics (as at 1 April 2013). 43 Bar Barometer, page 14 (November 2012). 44 General Council of the Bar Exit Survey, page 31 (December 2011). 45 General Council of the Bar Exit Survey, page 30 (December 2011). 46 General Council of the Bar Exit Survey, page 30 (December 2011). 47 General Council of the Bar Exit Survey, page 30 (December 2011). 48 General Council of the Bar Exit Survey, page 38 (December 2011). 49 2013 Judicial Diversity Statistics (as at 1 April 2013).
42
Q8 Do you agree that we have correctly identified the extent of impacts under these
proposals? Please give reasons.
6.8 No; as above.
Q9 Are there forms of mitigation in relation to impacts that we have not considered?
6.9 The Bar Council continues to give anxious consideration to what steps might be
taken to mitigate the effects of these proposals.
Bar Council
1 November 2013
For further information please contact
Charlotte Hudson, Head of Executive Office
The General Council of the Bar of England and Wales
289-293 High Holborn, London WC1V 7HZ
Direct line: 020 7611 1465
Email: [email protected]
Back to contents
43
Annex 1
Bar Council response to the proposed amendments to criminal Very High
Cost Case contracts
1. This is the response of the General Council of the Bar of England and Wales (the Bar
Council) to the Legal Aid Agency’s (LAA’s) consultation on the amendments to criminal
Very High Cost Case (VHCC) contracts.
2. The Bar Council has been consulted as a contractual Consultative Body in relation to
proposed amendments to the 2008 Panel Advocates VHCC contract (the 2008 Contract), the
2010 VHCC contract for self-employed advocates (the 2010 Contract) and the 2013 VHCC
contract for self-employed advocates (the 2013 Contract).
3. The Bar Council represents over 15,000 barristers in England and Wales. It promotes
the Bar’s high quality specialist advocacy and advisory services; fair access to justice for all;
the highest standards of ethics, equality and diversity across the profession; and the
development of business opportunities for barristers at home and abroad.
4. A strong and independent Bar exists to serve the public and is crucial to the
administration of justice. As specialist, independent advocates, barristers enable people to
uphold their legal rights and duties, often acting on behalf of the most vulnerable members
of society. The Bar makes a vital contribution to the efficient operation of criminal and civil
courts. It provides a pool of talented men and women from increasingly diverse
backgrounds from which a significant proportion of the judiciary is drawn, on whose
independence the Rule of Law and our democratic way of life depend. The Bar Council is
the Approved Regulator for the Bar of England and Wales. It discharges its regulatory
functions through the independent Bar Standards Board
VHCC contracts 5. The intended effect of the proposed amendments to the 2008, 2010 and 2013 contracts
would be to remove the rates of payment from the body of the contract and to set them out
in Statutory Instruments. The rates under the Statutory Instruments would be 30 per cent
less than the current contractual payment rates and are intended to apply to both existing
and future VHCC contracts.
6. The Government intends to give notice of the proposed amendments and lay Statutory
Instruments containing the new payment rates on 4 November 2013. The changes are
planned to come into force on 2 December 2013. In other words it is proposed that, following
44
the contractual amendments taking effect on the 2 December 2013, any work done on or
after that date will be paid at the new rates.
7. In respect of each of the Contracts, the LAA relies upon specific clauses as entitling it
to amend the remuneration payable. Different considerations apply, as are set out below.
The 2008 Contract 8. It is in particular to be noted that the terms of the clauses relied upon as entitling
amendment have changed between the 2008 and the 2010 and 2013 Contracts.
9. Clause 25.2 of the 2008 Contract provides:
Ongoing changes – from us
25.2 We may make such amendments to this Contract as we consider necessary in
the circumstances to comply with, or take account of, any UK legislation or any EU
legislation having direct effect, or as a result of any decision of a U.K. court or
tribunal, or a decision of the European Court of Human Rights or of the European
Court of Justice or any other institution of the European Union, or to comply with
the requirements of any regulatory body or tax or similar authority. Such
amendments may include (without limitation) changes to payment provisions,
imposing controls not previously imposed, and amending procedures in the
Contract. [emphasis added]
10. The 2008 Contract was with the Legal Services Commission (LSC) – a statutory
corporation established under Part 1 of the Access to Justice Act 1999. The amendment clause
allowed the LSC to make amendments so as to give effect to UK legislation with which it
was required to comply or of which it was required to take account. In other words it could
amend as necessary in order to give effect to acts of a third party, namely the UK
Parliament. This clause was not intended, nor was it expressed so as, to allow a party to the
contract (the LSC or any successor body) to effect a unilateral alteration to the terms of the
contract by itself laying a Statutory Instrument before Parliament. Yet, that is precisely what
is envisaged by the Ministry of Justice (MOJ), of which the LAA forms part. Accordingly, the
Statutory Instrument would not have the effect which it is intended to have. The MoJ and
LAA have no contractual power under the 2008 Contract to effect any diminution in the
rates of pay to Panel Advocates working under that Contract.
11. Moreover, the reference to “UK legislation” in clause 25.2 was plainly intended to refer
only to primary legislation, namely Acts of Parliament, rather than to any of the various
species of delegated legislation, including Statutory Instruments.
12. This limitation on the scope of the power to amend was recognised in the redrafting of
the amendment clauses in the 2010 and 2013 Contracts. Clause 13.4 in the 2010 and 2013
Contracts contains the identically worded powers of amendment as were set out in clause
25.2 of the 2008 Contract. Clauses 13.2 and 13.3, however, (which were only introduced into
the 2010 Contract by amendment in April 2013) go much further. They provide as follows:
45
Amending the Contract to reflect the Lord Chancellor’s legislative changes
13.2 We may amend the Contract to reflect the Lord Chancellor’s legislative changes as
set out at Clause 13.3.
13.3 The Lord Chancellor’s legislative changes include:
(a) any changes the Lord Chancellor may make to Legal Aid Legislation
pursuant to:
(i) section 2(3) of the Act (regulations making provision about the
payment of remuneration by the Lord Chancellor to persons
who provide services under arrangements made by the
purposes of Part 1 of the Act);
(ii) section 9 of the Act (orders modifying Schedule 1 to the Act);
(iii) section 11 of the Act (criteria for qualifying for civil legal
services);
(iv) section 12 of the Act (determinations);
(v) any power to make secondary legislation under Part 1 and 4 of
the Act; and
(b) any changes the Lord Chancellor may make to other legislation,
including by way of Statutory Instrument as defined in the Statutory
Instruments Act 1946 (as amended), which we reasonably believe
requires a change to how Contract Work is undertaken and paid for.
13. These clauses extend the power to amend so as to include the Lord Chancellor’s
legislative changes pursuant to specifically identified delegated legislation. Had the clause
as set out in the 2008 Contract (i.e. clause 25.2, and in the 2010 Contract until it was amended
in April 2013 (i.e. the old clause 13.2, now clause 13.4)) been sufficient to cover the present
situation there would have been no need for the extensive and careful addition of these new
clauses. Doubtless, these amendments were sought because the LAA and MOJ were advised
(correctly) that the originally agreed powers of amendment did not allow them to effect the
pricing changes that are envisaged through the mechanism that the Government is now
seeking to use.
14. Accordingly, any attempt to give effect to the proposed reduction in rates of pay to
advocates operating under the 2008 Contract would be a repudiation of that Contract,
entitling those advocates to bring that Contract to an end.
The 2010 and 2013 Contracts 15. At this stage, the Bar Council does not seek to argue that the terms of clauses 13.2 and
13.3 of the 2010 and 2013 Contracts do not empower the Government to effect changes to the
rates of pay under those Contracts through the mechanism that is proposed to be used.
There are, however, consequences that flow from the implementation of such amendments.
These are addressed below.
Contractual right to terminate
46
16. Where there has been an amendment made by the LSC/LAA pursuant to the powers
granted to it in the 2008, 2010 and 2013 Contracts, there is an express right vested in the
advocate to give notice to terminate the Contract concerned. Such notice may be given at
any time following the notice being given of the intended amendment, and takes effect as of
the day before the day on which the amendment would otherwise have come into effect.1
17. The contractual right to terminate following amendment is clear. If the advocate does
not wish to accept the amendment, they can walk away from the Contract and all
performance of future obligations under it beyond the termination date.
18. Up to the date of termination, work will continue to be done at the existing contract
rate and all unpaid work will be required to be paid at that existing rate (that being the
advocate’s accrued right as at the date of termination).
19. In its response to the first Transforming Legal Aid consultation, the MOJ stated:2
“Even after a 30% reduction VHCCs will remain high value, long duration cases that
bring certainty of income for providers, which is important, particularly for self-
employed advocates. For that reason, in addition to their professional obligations to
clients, we do not consider there is a significant risk that advocates will return briefs
or that solicitors will exercise their unilateral right of termination under their VHCC
contracts.”
20. This appears to suggest that the MOJ believes that there could be some professional
obligation on the part of advocates that either means the advocate has no right to terminate
the contract despite the LAA’s unilateral amendment, or if they do terminate, that the
advocate must continue to work without a contract, and hence with no right to payment at
all (reduced rates or otherwise).
21. These are both extraordinary propositions. The contractual right to terminate is clear
and there is no professional obligation to a client to continue to work when the basis of
instruction has fundamentally changed (as would be the case here). The Bar Standard
Board’s guidance states as follows:3
The position if the nature of Counsel's remuneration is changed
9. The BSB takes the view that if there is a material change made to the basis of
Counsel's remuneration, his original instructions have been withdrawn by the client and
substituted by an offer of new instructions on different terms.
1 Of course, the MOJ has no power to amend the 2008 Contract as proposed and any attempt to
implement reductions in the rates of pay under that Contract would entitle the advocate to terminate
the Contract at common law. 2 Ministry of Justice, Transforming Legal Aid: Next Steps (2013), paragraph 367. Available at:
https://consult.justice.gov.uk/digital-communications/transforming-legal-aid-next-steps/consult_view 3 Bar Standards Board, Guidance on Rules 608, 609 and 610 of the Code of Conduct: Withdrawal from a case
and return of Instructions (2012). Available at: https://www.barstandardsboard.org.uk/code-
guidance/guidance-on-rules-608,-609-and-610-of-the-code-of-conduct/
47
22. This means that a significant change in remuneration amounts to a ‘withdrawal’ of
instructions and an offer of instructions on new terms. It is not a ‘return’ of the brief.
23. Given that these proposed amendments follow a consultation exercise that generated
16,000 responses, the overwhelming majority of which opposed the proposed cuts as
unsustainable against a history of persistent cuts to legal aid funding, the assessment by the
Government that there is no significant risk that advocates will exercise their right to
terminate the contract is wholly misconceived, without evidential foundation and
breathtakingly complacent.
24. In an effort to provide evidence in this response of the proportion of advocates who
will give notice to terminate if these amendments are implemented, a request was made to
the LAA to identify all those who currently hold contracts so that their current views could
be ascertained. The LAA has yet to provide this requested information which has hampered
the Bar Council’s ability to carry out this exercise. The failure to provide this information
timeously does raise questions about the LAA’s appreciation of what a survey of such views
might reveal.
25. To date, the Bar Council has identified a significant number of advocates who
currently hold contracts who have stated that, if the proposed amendments are made to
their contracts, it is their present intention to give notice to terminate. This includes a
number of advocates who are involved in ongoing VHCC trials and a significant number
who are in cases that are fixed for trial in January 2014.
26. The consequences of the MOJ pursuing unilateral amendment of existing contracts are
likely to prove disastrous, particularly where there is termination of contracts where trials
are ongoing. This will result in discharged juries, as well as wasted expenditure on trial
processes and in instructing a second team of advocates to redo work that has already been
contractually paid for under the original contract. That is to say nothing of the human cost
for witnesses, jurors and defendants.
27. The consequences for the significant number of substantial trials due to start in early
2014 are hardly less catastrophic. Substantial periods of court time have been set aside for
these trials. These trial dates have been fixed for a considerable time; in a number of cases
these fixtures have already been re-arranged from earlier dates many months before. It is
likely that these fixtures will have to be aborted. The LAA will have to pay new teams of
advocates to redo work that they have already paid the presently instructed advocates to do
(assuming that they are able to find advocates willing to sign contracts at these reduced
rates). Defendants will have to work from scratch with a new team of advocates
familiarising themselves with the complexities of the case. By any objective assessment the
damage to the quality of justice before the courts of England and Wales is palpable.
28. If the imperative behind these amendments is saving money, they will achieve
precisely the opposite.
48
29. Implementing the proposed amendments will also mean that the Government is
dangerously abrogating its responsibility to provide effective legal representation for those
currently undergoing criminal trials or who face trials with imminent start dates. These trials
are by virtue of having met the criteria for inclusion in the VHCC scheme the most lengthy,
complex and difficult cases.
30. The Bar Council takes the view that the Government needs to think again. In the
current economic climate to pursue an unprecedented move to significantly amend the
terms of ongoing VHCC contracts is likely to incur substantial and unnecessary extra
expenditure and cannot be justified.
Nature of the amendments sought 31. In any event, the Bar Council objects to the manner in which it is proposed to amend
the terms of each of the 2008, 2010 and 2013 Contracts. In their present form, the payment
rates under each Contract are set out as part of the Contract concerned. The LAA intends not
to replace those rates within each Contract with the reduced rates provided for in the
proposed Statutory Instruments, but rather to remove from the Contracts any recitation of
rates whatsoever and to provide only a reference to the Instrument itself where those
reduced rates are to be found. As a matter of construction of each Contract, such an
amendment is impermissible. It is neither “necessary…to comply with, or take account of,
any UK legislation” (the 2008 Contract) nor does it “reflect the Lord Chancellor’s legislative
changes” (the 2010 and 2013 Contracts). What would be contractually permissible4 (in
accordance with the passages quoted in the previous sentence) would be to substitute within
each Contract the reduced rates themselves. This is not an arid point, but one of real
substance. The Bar Council is concerned that, if the amendments proceed in the manner
currently proposed, the LAA will be able to avoid future consultation over any further
changes to payment rates, by making those changes under the same Instrument (by the
mechanism of an Amending Order). The Bar Council is not prepared to be shut out from
future consultation on the rates of pay for its barrister members in this way (or, indeed, at
all).
Bar Council
October 2013
For further information please contact
Sarah-Jane Bennett, Policy Officer
The General Council of the Bar of England and Wales
289-293 High Holborn, London WC1V 7HZ
Direct line: 020 7611 1319
Email: [email protected]
Back to contents
4 Again, as noted above, the MOJ has no power to amend the 2008 Contract as proposed and any
attempt to implement reductions in the rates of pay under that Contract would entitle the advocate to
terminate the Contract at common law.
49
Annex 2
Bar Council response to the proposed changes to the 2010 Standard Crime
Contract to implement changes to prison law
1. This is the response of the General Council of the Bar of England and Wales (the Bar
Council) to the Legal Aid Agency’s (LAA’s) consultation on the proposed changes to the
2010 Standard Crime Contract to implement changes to prison law.
2. The Bar Council represents over 15,000 barristers in England and Wales. It promotes
the Bar’s high quality specialist advocacy and advisory services; fair access to justice for all;
the highest standards of ethics, equality and diversity across the profession; and the
development of business opportunities for barristers at home and abroad.
3. A strong and independent Bar exists to serve the public and is crucial to the
administration of justice. As specialist, independent advocates, barristers enable people to
uphold their legal rights and duties, often acting on behalf of the most vulnerable members
of society. The Bar makes a vital contribution to the efficient operation of criminal and civil
courts. It provides a pool of talented men and women from increasingly diverse
backgrounds from which a significant proportion of the judiciary is drawn, on whose
independence the Rule of Law and our democratic way of life depend. The Bar Council is
the Approved Regulator for the Bar of England and Wales. It discharges its regulatory
functions through the independent Bar Standards Board
Overview 4. The Bar Council has been consulted as a contractual Consultative Body in relation to
proposed amendments to the 2010 Standard Crime Contract.
2010 Standard Crime Contract 5. The mechanics of amending the 2010 Standard Crime Contract appear to implement
the proposed changes to prison law as intended by the Government. We do, however,
continue to oppose the fundamental policy underlying the changes.
6. In particular, removing funding for prisoners facing Parole Board review before their
minimum term has expired will have a serious impact on the ability of the prisoner to make
progress. The Parole Board considers whether a prisoner should move to open conditions at
the stage when their minimum term has not expired. If they do not move to open conditions,
50
they are unlikely to be released1. That means the Parole Board decision is an important one.
A wrong decision may cause the prisoner to be detained longer than necessary. Excluding
this category of Parole Board reviews from funding so that a prisoner’s case is not properly
presented may therefore create unnecessary additional costs.2
7. We have engaged with the Association of Prison Lawyers (APL) who has noted that
they consider the change in scope of prison law to be unlawful and do not believe that it
would be appropriate for them to comment on the mechanics of the contract. Moreover, the
APL has stated that they would be happy to engage in any future consultations that are both
substantive and genuine.
Bar Council
October 2013
For further information please contact
Sarah-Jane Bennett, Policy Officer
The General Council of the Bar of England and Wales
289-293 High Holborn, London WC1V 7HZ
Direct line: 020 7611 1319
Email: [email protected]
Back to contents
1 See, for example, the Secretary of State’s Directions to the Parole Board August 2004 relating to Transfer
of life sentence prisoners to open conditions, paragraph 1. Available at:
http://www.justice.gov.uk/offenders/parole-board/sos-directions/aug2004 2 See also R (Osborn) v Parole Board [2013] UKSC 61, [72]
51
Annex 3
What has happened to AGFS?
Summary
The purpose of this paper is to set out how the fees that are set for advocacy services under
the Advocates Graduated Fees Scheme (AGFS) have changed over the period 2007-2013 and
how they will change if either Options 1 or 2 proposed in the Consultation Paper
“Transforming Legal Aid: Next Steps” are adopted. To my knowledge the present paper is
the first comprehensive study to evaluate the cumulative effect of fee changes in AGFS over
the period 2007 to 2013.
Why it matters -- to society and not just to lawyers
One of the distinguishing features AGFS is that it establishes prices for publicly funded
defence advocacy services on a case-by-case basis.
The role of prices in an economic system is to indicate the value of resources devoted to
activities and thereby guide the decisions of individuals and firms of where to invest their
time and effort.
Unlike many prices in the economic system, an administrative process sets the prices within
AGFS. Thus it is the administrative agency, the MoJ, or the LSC or the LAA, that signals the
value that it places upon publicly funded legal services and in doing so has wide-ranging
implications for the ultimate allocation of resources that is implied.
The prices set under AGFS largely determine the income of lawyers who choose to specialise
in advocacy in the criminal courts and so determine the return to the investments that those
individuals undertake. A marked decline in that return will reduce the incentive to
undertake these investments.
In the short-term even substantial price reductions might have very limited effect because
the investments of the current generation practicing criminal advocacy have already been
made. But looking ahead substantial price reductions implying a collapse in the return to
investment in training for criminal advocacy must result in a withdrawal from the
profession and a reluctance of newly training lawyers to specialise in this field.
Real and cash price changes in AGFS under Carter
If AGFS prices are frozen in cash terms they are reduced in real terms. Lord Carter
recognized the erosion of the real value of graduated fee prices in his enquiry into Legal Aid
in 2006 and on the basis of his review the revised AGFS went some way towards restoring
the real value of prices to their 1996 levels (from which they had declined due to inflation)
and instituted a number of other structural reforms.
52
Lord Carter’s enquiry is the last (and only occasion since the inception of GFS) when
consideration has been given to the appropriate level of prices implied by AGFS. The higher
revised prices proposed by Lord Carter were set with a view to establishing appropriate
remuneration for a broad range of seniorities of criminal advocates and thus inter alia of
ensuring an adequate return on investments in criminal advocacy.
Post-Carter changes
Since the adoption of the revised scheme in 2007, AGFS has been subject to a series of
reductions. Thus relative to the environment that Lord Carter investigated in which AGFS
prices had been eroded by inflation, AGFS prices have now been subject to both erosion and
reduction. The price reductions have been justified on the grounds of the needs of public
finances.
Successive rounds of cuts have been pursued with little or no regard to their cumulative
effects either alone or in conjunction with the erosion in real value due to inflation. This
trend is continues in the Consultation Paper, which proposes further cuts without
consideration of history AGFS.
In this paper I set out the extent of the erosion in the value of AGFS since 2007. I do this by
adopting the methodology that the MoJ has used in the Consultation Paper.
I take the same bundle of cases that are used to assess the implications of the government’s
proposals, this being the complete set of cases that received a final payment under AGFS in
the financial year 2012-2013. For this bundle of cases I calculate what each case would be
paid under the rates that Lord Carter’s review established (as set out in SI 2007 1174), what
the same case would be paid under the rates currently in effect (as set out in SI 2013 435) and
then what each case would be paid under each of the options set out in the Consultation
Paper. These calculations establish with a considerable degree of precision the extent of the
reductions in AGFS prices since 2007.
I take a measure of inflation over the period 2007 – 2013 in order to establish the extent of
the real reductions in AFGS prices.
The detailed case-by-case data enable me calculate both actual and real reductions both
overall and for different types of cases and different roles of advocate.
Key findings
My findings are that as of 2013 AGFS prices have been reduced by 21.0% in cash terms
equating to 37% in real terms. The largest reductions have been for cracked trials (34.7% in
cash and 48% real) and least for guilty pleas (14.4% in cash terms and 31.5% real). These
totals are made up of a variety of experiences across different offence groups. Category G
cases have reduced by far the most – 50% in cash terms and 60% real, followed by category
A – 25 % in cash terms and 40% real. Across advocate roles, QCs and Led Juniors have the
largest reductions and Leading Juniors the smallest.
53
If either of the Options set out in the Consultation Paper are followed the overall reduction
in AGFS prices will be 26.4% equivalent to 41% in real terms.
Thus, broadly speaking, the proposals set out in the present consultation mean that the
value placed on publicly funded defence advocacy services will have decreased by over 26%
in cash terms and more than 40% in real terms since 2007.
If Option 1 as set out in the Consultation Paper is adopted the cuts in Cracked Trials fees
will be substantially greater and in conjunction with previous cuts will result in these rates
having been cut by more than 47% since 2007. In contrast under Option 1, Guilty Plea rates
will be increased relative to their 2007 levels even though at that time they were increased
substantially. Thus Option 1 represents very large changes in relative prices in addition to
substantial price cuts.
In contrast Option 2 goes some way to restoring relative prices to their 2007 levels but still
embodies the same overall price cuts as Option 1.
The remainder of this paper sets out the data, methods of analysis and detailed findings.
Data and Methods
Data
For the purposes of setting proposed rates as set out in the Consultation Paper, analysts at
the Ministry of Justice gathered information on every case for which the final bill was paid
under AGFS in the financial year 2012-2013. Those cases represent a mixture of cases that
were initiated in earlier years and thus do not necessarily represent a typical year of ‘new’
cases. They do however constitute a large bundle of cases and represent cases from all
offence groups, all case types (trials, cracked trials and guilty pleas) across all roles of
advocates (QC, Leading and Led Junior and Junior Alone). For the purposes of this paper I
use that same bundle of cases. I have compared this bundle of cases with other bundles
corresponding to the complete sets of cases with final bills paid in earlier years and I am
satisfied that the financial year 2012-2013 is sufficiently similar to other years to regard the
bundle of cases being analysed as representative of a typical year of final bill cases.
The key summary measures for the analysed bundle of cases are set out in Table 1 below.
Type of Case Number of
Final Bills 2012
-2013
Average AGFS
Paid (£)
Trial 26091 4112.44
Cracked Trial 29120 1544.40
Guilty Plea 41840 655.45
All 97051 1851.55
Table 1: Summary of the Bundle of Cases paid in 2012-2013
54
I identified a number of anomalies in these data that I have communicated to analysts at the
Ministry of Justice. For example, although these data purport to relate to final bills paid
there are a number of cases in which the final bill is either negative or could not correspond
to a payment under AGFS. Provided the overall bundle of cases which these data relate to is
representative of a full years payments, these anomalies will not affect my analysis.
For completeness, if we restrict attention to cases for which the final bill payment could be a
result of AGFS the summary measures are set out in Table 2
Type of Case Number of
Final Bills 2012
-2013
Average AGFS
Paid (£)
Trial 24606 4371.114
Cracked Trial 27979 1610.972
Guilty Plea 38292 705.80
All 90877 1976.90
Table 2: Summary of the Bundle of Cases paid in 2012-2013 omitting impossible payments
For the purposes of comparing estimated payments with actual payments, I use the bundle
of cases set out in Table 2 as this omits any actual payments that are obviously suspect. For
comparing one estimated payment with another, I use the bundle of cases in Table 1 as it is
more extensive.
Methods
For each case in the relevant bundle there is data on; the type of case, the offence group to
which the case belonged, the number of pages of evidence, the number of witnesses, the
number of trial days (if the case is a trial), the third in which the case cracked (if a cracked
trial) and the role of the advocate. These data can be combined with the fee tables as set out
in Statutory Instruments applicable at any point in time to produce a calculation of the fee
that would have been paid had the case fallen under that particular set of regulations. This
process is repeated for each and every case in the bundle of cases ( either 90,877 or 97,051).
In order to carry out the analysis I used the STATA software package and a series of custom
written programmes and routines. Fee rates were entered for 2007 (SI 2007 1174), for 2013 (SI
2013 435), and for Options 1 and 2 as set out in the Consultation Paper. These fee rates were
applied to each and every case in the relevant bundle of cases and the results written to a
data file for subsequent analysis.
On the basis of the output of the programmes it is possible to summarise and analyse the
impact of different fee rates that have applied over time to all cases in the bundle or to any
subset of cases, be that determined by offence group, case type, advocate role or even in
regard to specific characteristics of cases (for example, trials in category A that are longer
than 5 days).
55
In this paper I report only on a number of key comparisons – many more are possible, and
the programmes and methods that underpin them could be applied to any bundle of cases
either actual or hypothetical.
All the calculations of fees are undertaken using their actual cash values that will be eroded
in real terms by inflation. When making comparisons between 2007 and 2013 I make use in
text of the Consumer Prices Index (CPI) to refer to the real value of fees. The CPI was 104.2
in March 2007 and 128.8 in September 2013 so that consumer prices increased be 23.6% over
this period. Since any measure of inflation is approximate, depending on the precise bundle
of goods included and the weights attached to them, I use a conservative figure for inflation
of 20%. Thus, if a fee paid of £100 in 2007 is reduced to a fee paid of £80 in 2013 – a
reduction of 20%, the effect of 20% inflation over that period is to erode the value of £80 to
the equivalent of £64 in 2007 prices. Hence the overall real reduction is 36/100 – 36%.
Findings
Fees in 2007 against fees in 2013
The fee rates embodied in the regulations applicable in 2013 have changed substantially
from those that came in as a result of Lord Carter’s review. These changes have reduced
fees but have done so differentially. Table 3 summarises the differences by case type.
Case Type Average Fee
according to 2007
Regulations
Average Fee
according to 2013
regulations
Percentage
reduction 2007 to
2013
Trial 5743.71 4769.33 17.0
Cracked Trial 2039.72 1330.96 34.7
Guilty Plea 797.03 682.27 14.4
Total 2499.75 1975.67 21.0
Table 3: 2007 and 2013 rates applied to the full bundle of cases
Overall, the effect of fee cuts between 2007 and 2013 has been to reduce the prices set under
AGFS by 21%.
Guilty Pleas have exhibited the smallest cuts (14.4%) in spite of having received the largest
percentage increase under Lord Carter’s review. Cracked trials fees have reduced by more
than 1/3.
The fee reductions have not applied equally across all offence groups or across all advocate
roles. The impact across different offence groups is set out in Table 4.
Offence Group Percentage Reduction
in Average Fee from 2007 to 2013
A 25
B 20
56
C 17
D 11
E 17
F 19
G 50
H 18
I 16
J 14
J 16
Table 4: Percentage fee reductions by offence groups 2007-2013
Notable is the very large reduction in the payment for Category G cases which has reduced
the price attached to these cases by 50%. In contrast Category D cases have had the lowest
percentage reduction (11%).
Table 5 sets out the effect of cuts in fees from 2007 to 2013 by the advocates’ roles.
Advocate Role Percentage Reduction
in Average Fee from 2007 to 2013
QC 22
Leading Junior 15
Led Junior 20
Junior Alone 17
Table 5: Percentage fee reductions by advocate roles 2007-2013
Fees under Options 1 and 2 against fees in 2007
The Consultation Paper proposes further cuts in AGFS that are set out under two different
structures, termed “Options”. If either of these is adopted fees being paid from 2014
onwards will be further reduced from their 2007 levels.
The first option adopts the same formula mechanism as in the 2013 rates but amalgamates
payments for Cracked Trials and Guilty Please thus eliminating the differential between
payments for these cases that has existed since the inception of AGFS in 1996. It is worth
noting that the only evidence underpinning the setting of rates for AGFS is that used to
inform the 1996 structure. Thus the proposal to eliminate any differential between Cracked
Trials and Guilty Pleas directly contradicts evidence that the advocacy work required in a
Cracked Trial is substantially greater than the advocacy work required in a Guilty Plea.
Option 1 also proposes a complicated and arcane arrangement for incrementally reducing
daily attendance fees for trials. The proposed tapering arrangements make it very difficult to
actually calculate trial fees (each daily fee is at least potentially different in a case) and for
this reason my calculations, in which I use an approximating formula, are not exact. This
approximation only applies to payments for trials.
57
In the process of carrying out the calculations for Option 1 I noted some discrepancies
between the impact of the proposals I had calculated and those reported in the Consultation
Paper. Analysts at the Ministry of Justice published revised rates for Option 1 as a
consequence and these new fee rates had to be input into the programmes.
The second option represents a considerable simplification of the formula mechanism
embodied in the 2013 rates. It dispenses with page uplifts and proposes fees for cracked
trials and guilty pleas that are fractions of the fee for a trial. It is very easy to implement as a
formula and is more transparent than Option 1 in terms of its effects on fees.
Using the programmes that I have written it is possible to examine the effect of both options
on a case by case basis and thus to consider the impact of each proposal on any subset of
cases so desired. For the purpose of this paper I consider on the effect on different types of
case, relative to fees set out in SI 20071174. The details are in Table 6
Case Type Average Fee
according to
2007
Regulations
Average Fee
according to
Option 1
Percentage
reduction
from 2007
under
Option 1
Average Fee
according to
Option 2
Percentage
reduction
from 2007
under
Option 2
Trial 5743.71 4260.45 25.8 4420.27 23.0
Cracked
Trial
2039.72 1081.34 47.0 1297.94 34.7
Guilty Plea 797.03 845 -6.0 607.9 23.7
Total 2499.75 1833.9 26.46 1839.9 26.40
Table 6: Fee Reductions under Options 1 and 2 relative to 2007 rates
The overall reduction in fees is approximately the same under both options. If either is
adopted it will mean that AGFS will have been cut by 26.4% since 2007. In real terms this
equates to a 41% cut.
The distribution of the cuts across case types is however very different. Option 1 actually
increases the payment for Guilty Pleas by 6%relative to their 2007 levels, at which time the
payment for Guilty Pleas was substantially increased. In contrast Option 1 will result in
Cracked Trial fees having been reduced by 47% since 2007. Option 2 produces a more even
distribution of cuts.
Discussion
AGFS, which was introduced in 1996, set out what at that time was a novel and important
payment mechanism wherein the fee that an advocate received for all of the work involved
in a case was a fixed price. This was in stark contrast to ‘hourly rates’ wherein the more time
the advocate spent the higher would be their fees. The beneficial elements of AGFS from the
public funding perspective were recognized and documented by Lord Carter. Compared to
hourly rates, which do not permit control over expenditure, AGFS fixes payment so that any
58
changes can be accounted for in terms of either volume or case-mix or a combination of
these. Expenditure can be effectively managed by changing prices.
The control and accountability embodied in AGFS is of undoubted benefit to the purchasing
agency. It should however be viewed as encompassing a responsibility. AGFS sets prices
that signal the value of publicly funded legal services both relative to other areas of legal
provision and, where prices are varied within AGFS, to different forms of advocacy work
(corresponding to different types of cases, different offences or different role of advocates).
The original AGFS rates were set by reference to work required by using the then existing ex
post facto determination process to guide relative prices. Since inception there has not been
any research into the changing nature of work requirements and AGFS prices have been
adjusted by administrative diktat, usually reductions across-the-board but also according to
a ‘feeling’ or ‘sense’ that some areas of work are too expensive relative to others.
The analysis in this paper shows the cumulative effect of the combination of price-cutting
and a ‘touch and feel’ approach to setting rates since 2007, up to and including proposals in
the Consultation Paper. Overall AGFS prices will have been reduced by 26.4% since 2007.
Some areas of work have suffered much larger reductions – including the most serious and
some might argue most important cases in the criminal legal system.
Martin Chalkley
16 October 2013
Back to contents
59
Annex 4
Fee rate tables for modified Option 2
QC Page cutoff Standard Enhanced Witness Day 3-40 Day 41-50 Day 50+
A 5000 8058 16116 6.05 788 312 334
B 2500 8058 16116 6.05 691 312 334
C 750 8058 16116 6.05 658 312 334
D 1500 8058 16116 6.05 658 312 334
E 1500 8058 16116 6.05 493 312 334
F 1500 8058 16116 6.05 493 312 334
G 6000 8058 16116 6.05 493 312 334
H 750 8058 16116 6.05 658 312 334
I 1500 8058 16116 6.05 658 312 334
J 1500 8058 16116 6.05 788 312 334
K 5000 8058 16116 6.05 788 312 334
Leading Junior Page cutoff Standard Enhanced Witness Day 3-40 Day 41-50 Day 50+
A 5000 6044 12087 4.51 592 266 287
B 2500 6044 12087 4.51 518 266 287
C 750 6044 12087 4.51 493 266 287
D 1500 6044 12087 4.51 493 266 287
E 1500 6044 12087 4.51 370 266 287
F 1500 6044 12087 4.51 370 266 287
G 6000 6044 12087 4.51 370 266 287
H 750 6044 12087 4.51 493 266 287
I 1500 6044 12087 4.51 493 266 287
J 1500 6044 12087 4.51 592 266 287
K 5000 6044 12087 4.51 592 266 287
60
Led Junior Page cutoff Standard Enhanced Witness Day 3-40 Day 41-50 Day 50+
A 5000 4029 8058 3.02 395 179 191
B 2500 4029 8058 3.02 345 179 191
C 750 4029 8058 3.02 328 179 191
D 1500 4029 8058 3.02 328 179 191
E 1500 4029 8058 3.02 247 179 191
F 1500 4029 8058 3.02 247 179 191
G 6000 4029 8058 3.02 247 179 191
H 750 4029 8058 3.02 328 179 191
I 1500 4029 8058 3.02 328 179 191
J 1500 4029 8058 3.02 395 179 191
K 5000 4029 8058 3.02 395 179 191
Lone Junior Page cutoff Standard Enhanced Witness Day 3-40 Day 41-50 Day 50+
A 2000 3005 6000 2.83 455 228 244
B 1000 1845 3689 2.83 403 212 227
C 250 987 1975 2.83 349 212 227
D 500 1411 3168 2.83 349 228 244
E 500 760 1888 2.83 280 193 206
F 500 760 1888 2.83 280 193 206
G 2000 2571 5143 2.83 280 193 206
H 250 1031 2062 2.83 349 212 227
I 500 1204 2398 2.83 349 212 227
J 500 2224 4459 2.83 455 228 244
K 5000 5143 10286 2.83 455 228 244
Back to contents
61
Annex 5
Making sensible, evidence-based reforms of AGFS
Summary
In another paper (annex 3)I have set out how fees under the Advocates Graduated Fees
Scheme (AGFS) have been reduced since 2007 and how they will be further reduced if either
options proposed in the Consultation Paper “Transforming Legal Aid: Next Steps” is adopted. I
calculate that following the adoption of either option, fees will have been reduced by 26.4%,
which in real terms equates to approximately 41%. These reductions have been or will be
made by a combination of across-the-board cuts and ad hoc adjustments in relativities (some
of which are set out in my earlier paper), based on ‘feeling’ or ‘sense’ as to what is
appropriate. The purpose of this paper is to summarise the possible implications of
reductions made in this way and to argue for a more logical, evidence-based and consistent
approach to setting rates for AGFS which focuses on the effect of fee changes on earnings –
not the fee rates.
My central point is that established economic analysis suggests that reductions in fees of this
magnitude will reduce the return to those who enter the profession of criminal advocacy
and will thus reduce the incentive to train as criminal advocates. The extent of the erosion of
that incentive depends on the impact of fee reductions on advocates’ earnings – especially
their earnings in early years of practice. Thus it is particularly important in proposing any
fee changes to measure their impact on these critical earnings. And yet, fee reductions have
been implemented, and are again proposed, without any evidence regarding their effect
upon earnings.
The remainder of this paper has two sections. In the first I set out the relevant economic
principles and in the second I make proposals for how to manage the process of reforming
AGFS better.
The economics of earnings
The accepted framework for understanding the decisions of individuals to engage in
education and subsequent training for a profession is termed Human Capital Theory. Gary
Becker was awarded of the Nobel Prize in Economic Sciences in 1992 for his work on this
subject.
The theory views decisions to engage in further education and training as investments and
thereby suggests that the theory of investment decisions can usefully be applied to
understanding the determinants of education and training. According to this view
individuals incur current costs (their fees and the earnings they could make if employed
rather than training) in order to enjoy future benefits – higher earnings once qualified.
The approach suggests that, as with any investment, individuals take a long-run view of
their career choice, but like any investor they attach most weight to the returns (higher
earnings) that they achieve earlier rather than later. This theoretical framework has been
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very extensively tested against real data and been validated as an explanation of real
decisions. There is therefore confidence in its predictions, which include the conclusion that
an erosion of earnings, especially in the early years after qualification can have a profound
effect on the willingness of individuals to train for a career.
Applied to the profession of specialist criminal advocacy, the theory suggests that an erosion
in the earnings of criminal defence advocates will have a potentially profound effect on the
future of the profession by deterring the brightest and the best (those who have the highest
alternative earnings) from entering the profession. Both the profession and the government
have stated that they wish to avoid this outcome.
There is a very practical policy implication from Human Capital Theory to the effect that
any reform in fee structures should be evaluated and its impact upon the earnings
monitored and moderated, if a collapse in the profession is to be avoided.
A better way forward
If reductions in fees are made piecemeal there is a very real risk that earnings will be eroded
substantially, and more than is necessary in order to achieve any particular budgetary
objective. As discussed in my previous paper the extent of fee reductions already made in
this way is substantial and further reductions should not be made until proper efforts have
been made to assess the implications on earnings.
Unfortunately there has hitherto not been any serious attempt to measure the impact of
AGFS proposals on earnings. A problem arises because barristers are self-employed and
derive income from a number of potential sources so that the fee income they generate from
AGFS may not be a good proxy for their earnings. Whilst we can observe (advocate-by-
advocate) AGFS income, we cannot infer that this represents their earnings.
This issue has been allowed to obscure and mislead the debate surrounding reforms to
AGFS. ‘Statistics’ abound that purport to demonstrate that ‘the majority of barristers’ earn
less than £x from criminal legal aid or that the ‘earnings’ of these ‘lowest paid’ barristers will
or will not be affected by some or other proposal. The confusion between fee income, which
may constitute either a small proportion or the totality or earnings, and annual earnings
abounds.
But the economics is clear. It is earnings that are crucial and there seems to be little doubt
that there is a cohort of advocates (smaller than the cohort of advocates who receive AGFS
fees, but nevertheless substantial) who derive the greater part of their earnings from AGFS,
or AGFS together with the closely aligned CPS graduated fees scheme or under high cost
case dedicated contracts (VHCC).
The resolution of this issue is possible. The administrative data that record AGFS fee
payments identify individual barristers. Even within these records alone it is possible to
identify individuals for whom it is likely that their AGFS fees constitute a large part of their
annual earnings; this being so because the same records provide the details of the cases that
are being claimed for and there are some individuals whose case load is inconsistent with
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them deriving substantial earnings outside of AGFS. But it is also possible to match the
administrative AGFS data with other sources of information on barristers that would permit
the identification of a cohort of barristers for whom it is nearly certain that AGFS fees
constitute all of annual earnings. I recommend that attention is focused on this cohort i.e.
not all AGFS fee earners but on those specialist criminal advocates who derive their annual
earnings from AGFS.
Having identified the appropriate cohort of individuals the mechanism for assessing the
impact of AGFS fee changes in now very well established. We simply need the ‘bundle’ of
cases that each individual does in a year. A first step is to calculate how much of an impact
on the earnings (as distinct from overall fee rates) of each individual existing fee reductions
have had. I suggest there then needs to be a dialogue regarding how any further fee reforms
are to be designed so as to not have too large an effect on earnings. This is different from the
effect on fee income that has hitherto been the focus of debate, for the reasons set out above.
Martin Chalkley
26 October 2013
Back to contents
64
Annex 6
Bar Council response to the Judicial Review: proposals for further
reform consultation paper
1. This is the response of the General Council of the Bar of England and Wales (the Bar
Council) to the Ministry of Justice consultation paper entitled Judicial Review: proposals for
further reform1.
2. The Bar Council represents over 15,000 barristers in England and Wales. It promotes
the Bar’s high quality specialist advocacy and advisory services; fair access to justice for all;
the highest standards of ethics, equality and diversity across the profession; and the
development of business opportunities for barristers at home and abroad.
3. A strong and independent Bar exists to serve the public and is crucial to the
administration of justice. As specialist, independent advocates, barristers enable people to
uphold their legal rights and duties, often acting on behalf of the most vulnerable members
of society. The Bar makes a vital contribution to the efficient operation of criminal and civil
courts. It provides a pool of talented men and women from increasingly diverse
backgrounds from which a significant proportion of the judiciary is drawn, on whose
independence the Rule of Law and our democratic way of life depend. The Bar Council is
the Approved Regulator for the Bar of England and Wales. It discharges its regulatory
functions through the independent Bar Standards Board.
4. The Bar Council has the unique advantage of representing advocates appearing on all
sides of judicial review proceedings – for claimants, for the public bodies whose decisions
are under challenge, for interested parties whose position is affected by the outcome of the
case, and for interveners. So we are able to bring a global perspective to the issues raised by
this consultation.
5. Throughout the Consultation Paper are indications that judicial review is regarded as
an inconvenience or “hindrance” for government and its economic growth agenda. We fear
that the tone of the Paper fails to recognise the central role judicial review plays in the
constitutional order. The ability of the court to examine the legality of executive decision-
making – and in particular to ensure that government is conducted within the four corners
of the powers conferred by Parliament -- is a cornerstone of democracy and the rule of law.
From that standpoint we are concerned that these proposals appear in the immediate wake
1Ministry of Justice 2013 Judicial Review: proposals for further reform
65
of another set of reforms to judicial review, some of which (especially the new rules on time
limits and the introduction of a fee for oral renewals) have far-reaching potential to have an
adverse impact on access to court. It would make sense to await and assess the effects of
those changes, gauging their benefits and impacts against their stated aims, before
proposing a raft of new reforms with even greater potential to stifle the effectiveness of
judicial review. We therefore urge the Government to withdraw the present proposals for
the time being, pending an evidence-based appraisal of the recent round of changes. Judicial
review is too important to be placed at risk by precipitate policy-making. Our detailed
comments, below, should be read subject to that overarching concern.
Question 1: Do you envisage advantages for the creation of a specialist Land and
Planning Chamber over and above those anticipated from the Planning Fast-Track?
Question 2: If you think that a new Land and Planning Chamber is desirable, what
procedural requirements might deliver the best approach and what other types of case
(for example linked environmental permits) might the new Chamber hear?
Question 3: Is there a case for introducing a permission filter for statutory challenges
under the Town and Country Planning Act?
Question 4: Do you have any examples/evidence of the impact that judicial review, or
statutory challenges of government decisions, have on development, including
infrastructure?
Question 5: More generally, are there any suggestions that you would wish to make to
improve the speed of operation of the judicial review or statutory challenge processes
relating to development, including infrastructure?
Question 6: Should further limits be placed on the ability of a local authority to challenge
decisions on nationally significant infrastructure projects?
Question 7: Do you have any evidence or examples of cases being brought by local
authorities and the impact this causes (e.g. costs or delays)?
6. With the exception of Question 8 (see below), this section of the Consultation Paper is
concerned with specialised questions arising in the context of town and country planning.
The Bar Council is content for the relevant specialist bar association, PEBA, to represent the
views of practitioners in that field. So we do not comment in this paper on Questions 1-7.
Question 8: Do you have views on whether taxpayer funded legal aid should continue to
be available for challenges to the Secretary of State’s planning decisions under sections
288 and 289 of the Town and Country Planning Act 1990 where there has already been an
appeal to the Secretary of State or the Secretary of State has taken a decision on a called-in
application (other than where the failure to fund such a challenge would result in breach
or risk of a breach of the legal aid applicant’s ECHR or EU rights)?
66
8. This question, by contrast, although arising in the context of planning cases, raises an
access to justice issue of wider importance. We do not believe that the Government has
made a convincing case for change. Individuals ought to have access to the courts if they are
at immediate risk of losing their homes as a result of the proceedings in question. Legal aid
ought in principle to be available to assist those who would otherwise be denied access to a
judge.
Questions 9 to 11: “Standing”
9. These questions relate to the important issue of the basis on which claimants are to be
judged to have “sufficient interest” or “standing” to bring a claim for judicial review
challenging an alleged breach of the law by a public body. The Consultation Paper rightly
observes, in paragraph 74, that the courts have taken a more expansive approach over recent
years. However, the Bar Council regards this development as one of the cornerstones of a
modern system of administrative law, and an important constitutional guarantee that there
are not areas of activity by the executive which are beyond the reach of judicial control
because no one is in a position to challenge alleged illegality. Lord Diplock is widely
regarded as one of the most influential judges in the development of this modern system;
two landmark judgments of his in the GCHQ case and in ex parte IRC are careful expositions
of the fundamental principles involved. In ex parte IRC [1984] AC 617 he said (at p644):-
“It would, in my view, be a grave lacuna in our system of public law if a pressure
group, like the federation, or even a single public-spirited taxpayer, were prevented by
outdated technical rules of locus standi from bringing the matter to the attention of the
court to vindicate the rule of law and get the unlawful conduct stopped. The Attorney-
General, although he occasionally applies for prerogative orders against public
authorities that do not form part of central government, in practice never does so
against government departments. It is not, in my view, a sufficient answer to say that
judicial review of the actions of officers or departments of central government is
unnecessary because they are accountable to Parliament for the way in which they
carry out their functions. They are accountable to Parliament for what they do so far as
regards efficiency and policy, and of that Parliament is the only judge; they are
responsible to a court of justice for the lawfulness of what they do, and of that the
court is the only judge.”
10. The Bar Council regards this as a fundamental statement of constitutional principle.
For the reasons set out below, it considers that a change in the “standing test” to any of the
alternative formulations set out in the Consultation Paper would either create “fundamental
lacunae” or achieve nothing. Put shortly, it is unacceptable to create a class of executive
action which cannot be challenged because no claimant meets the new test for standing to
bring a judicial review.
11. The point can be illustrated by one of the leading cases on standing, ex parte World
Development Movement [1995] 1 WLR 386, cited in paragraph 76 of the Paper. The subject
matter of the challenge was a grant of overseas aid to the Government of Malaysia. To state
the obvious, the grant was payable out of UK taxation. But if the WDM had not been held to
have had standing to bring a challenge there would have been no alternative claimant. It is
67
apparent that the Court regarded the absence of any other responsible challenger as an
important factor in deciding that WDM did have a sufficient interest, as it had done in the
earlier case of ex parte CPAG [1990] 2 QB 540, in a social security context to which this
response returns shortly below.
12. The modern approach to standing has enabled challenges to be brought in a large
number of contexts, from a wide variety of different social and political perspectives. The
challenge brought by Lord Rees-Mogg, referred to in paragraph 68 of the Paper, was to the
entry into the Maastricht Treaty. As is well known, Mrs Gillick instigated important
proceedings intended to clarify the ability of a health authority to give contraceptive advice
to girls under 16. In Mrs Gillick’s case Lord Scarman commented:
“Mrs Gillick, even though she may lose the appeal, has performed a notable public
service in directing judicial attention to [these] problems... of immense consequence to
our society”.
Mr Blackburn had standing to challenge the approach of the GLC to obscene publication,
there are many other examples.
13. In social security, the willingness of the courts to award standing to an NGO has had a
real utility. There is a class of case which can be described as “the disappearing claimant”. A
government department adopts an approach to the time taken to decide a claim which is
arguably unlawful. Whenever an individual claimant complains, his claim is settled, but the
underlying practice is unchanged. The legality of the practice itself never reaches the court.
This was the concern that lay behind the CPAG case referred to above, in which CPAG was
able to challenge the underlying practice. There are other contexts in which similar issues
arise – delay in issuing status papers to refugees, for example.
14. It is possible to deal with some “disappearing claimant” issues if the court is willing to
continue to hear a challenge brought by an individual even though that challenge has
become academic on the facts of the case. But it is difficult to see why this approach should
be regarded as any more acceptable than the recognition of standing by an NGO. It leaves
the individual claimant with the burden of litigating an issue in which s/he has no
continuing interest. And if some solution is not found, one is back at the basic issue – the
existence of a class of executive decision which is beyond the reach of the courts and the rule
of law.
15. Lord Diplock’s remarks in ex parte IRC, set out above, refer to relator actions brought
by the Attorney General. It seems unlikely that the Attorney would welcome a situation in
which his relator was the only solution to this kind of problem or that in practical terms the
widespread use of relators is likely to actually come about.
16. The last sentence of paragraph 80 of the Paper indicates that the changes it proposes
“should require a more direct and tangible interest in the matter to which the application for judicial
review relates. That would exclude persons who had only a political or theoretical interest, such as
campaigning groups.” This objective, if attained, would reverse the approach taken by Lord
Diplock in ex parte IRC. It would create his “grave lacuna”.
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17. The Bar Council does not believe that any of the alternatives canvassed in the Paper
overcome this fundamental objection. The Paper itself dismisses a general test of standing
such as that required by the ECJ in relation to challenges to EU measures – see the last
sentence of paragraph 84.
18. The next alternative canvassed by the Paper is the “victim” test. The adoption of this
test was highly controversial at the time of its use in the HRA, for precisely the reasons set
out above. There would be no “victim” in the WDM case. CPAG would not be a victim in
the disappearing claimant class of case.
19. The Paper (paragraph 81) recognises that NGOs could not be refused standing in
environmental cases because of Aarhus and EU law obligations. But a dichotomy between
“environmental” and other public law cases would produce an incoherent position; and
would be likely to produce fraught and wasteful disputes as to the boundary between the
two classes.
20. The final test proposed by the Paper is the adoption of some formulation such as
“person aggrieved”. If this is intended to exclude claimants such as the WDM, it is open to
the basic objection set out above.
21. It is also inherently uncertain. It would be open to judicial interpretation if applied in
contexts remote from that in which it is presently used, which classically involve a decision
making process including a right to make representations and a subsequent inquiry. It
seems likely that the Courts would give it a wide meaning very similar to that presently
accorded to “sufficient interest” precisely to avoid the “grave lacuna”. It is easier (in general
rule of law terms) to justify a slightly narrower approach to standing where there has been a
systematic collection of representations, followed by inquiry and ministerial decision, than it
is where there would be no “person aggrieved” at all. In the first case, a large number of
people who have made representations or attended the inquiry can claim to be a “person
aggrieved” by the decision – on the existing case-law. If the term is translated into the WDM
context, then either it can be given a wide enough meaning to encompass WDM; or the
“grave lacuna” returns.
22. The Bar Council would accordingly answer Questions 9-11 as follows:-
Question 9: Is there, in your view, a problem with cases being brought where the claimant
has little or no direct interest in the matter? Do you have any examples?
23. No. The Bar Council is not aware of an existing problem – which should be addressed
- with judicial reviews being brought by claimants with little or no interest in the matter.
Question 10: If the Government were to legislate to amend the test for standing, would
any of the existing alternatives provide a reasonable basis? Should the Government
consider other options?
24. No
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Question 11: Are there any other issues, such as the rules on interveners, the Government
should consider in seeking to address the problem of judicial review being used as a
campaigning tool?
25. No. The Bar Council does not consider that there is a current problem with
interventions being used as a “campaigning tool”. It is very difficult to think of any
interventions which have not been regarded as helpful by the Court, even if they have not
been accepted. The Bar Council is not aware of any adverse judicial comment on difficulties
caused by interventions. On the other hand, it is aware of many cases where the Court has
expressed gratitude for the intervention. It is to be noted that the Paper does not give any
actual examples of interventions being used as an illegitimate “campaigning tool”. Please
also see our comments below on questions 31-35.
Question 12: Should consideration of the “no difference” argument be brought forward to
permission stage on the assertion of the defendant in the Acknowledgment of Service?
Question 13: How could the Government mitigate the risk of consideration of the “no
difference” argument turning into a full dress rehearsal for the final hearing, and
therefore simply add to the costs of proceedings?
Question 14: Should the threshold for assessing whether a case based on a procedural
flaw should be dismissed be changed to ‘highly likely’ that the outcome would be the
same? Is there an alternative test that might better achieve the desired outcome?
Question 15: Are there alternative measures the Government could take to reduce the
impact of judicial reviews brought solely on the grounds of procedural defects?
Question 16: Do you have any evidence or examples of cases being brought solely on the
grounds of procedural defects and the impact that such cases have caused (e.g. cost or
delay)?
26. We have no difficulty with the proposition that a purely formal defect that has
prejudiced no-one should not automatically lead to the quashing of a decision. But even on
the current “inevitable” test, that is in reality already the position. The lesser the defect, the
less difficulty the court has in concluding that the decision would be bound to be the same if
quashed and taken again, making a quashing order effectively academic and liable to be
refused as a matter of discretion. The more substantial the defect, the greater the burden on
the defendant to persuade the court that observing procedural propriety would have made
no difference. In other words the “inevitable” test is in truth a continuum. Where the defect
has deprived someone of an opportunity to be heard, or deprived the decision-maker of a
chance to reflect or reconsider, then for obvious reasons the threshold is rightly set high.
Substituting a lower threshold would risk allowing unfairness to go unremedied.
Prescribing a different threshold only for cases of “minor” or “technical” defects would
produce uncertainty, and thus costly satellite arguments, about the cut-off point. We
therefore oppose any change to the present law governing the test for a “no difference”
argument.
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27. As regards the stage at which the court should resolve “no difference” arguments, we
observe that at the permission stage the court can already consider, as part of its overall
assessment of arguability, the likely success of a “no difference” argument. If a claim is
considered weak on its merits, the likelihood that discretion will be eventually exercised
against relief on “no difference” (or other) grounds is routinely taken into account in
deciding whether the claim warrants permission. The prospect of refusal of relief on “no
difference” grounds is intimately bound to the nature of the procedural defect. It would
therefore be wrong in principle to bring forward the substantive resolution of a “no
difference” issue to the permission stage.
28. However, we consider on balance that there may be some sense in bringing a degree of
formality to the situation where a defendant wishes to resist permission on the basis that
relief is likely to be refused. As the Consultation Paper acknowledges, it is important that the
steps taken at the permission stage do not increase the costs of that stage, or duplicate costs
more properly incurred at the substantive stage. One possibility is to amend the Part 54
Practice Direction to include a reminder that, in an appropriate case (particularly if the
merits are not strong), the court may refuse permission where it considers that a “no
difference” argument would be likely to succeed at the hearing; and that (i) a defendant
seeking to resist permission on this basis must provide brief but sufficient supporting
material in its summary grounds and written evidence; (ii) the claimant must have the
opportunity of a brief reply before permission is determined (which makes this process
unsuitable for urgent cases); (iii) both parties must take care to ensure that the material
submitted at this stage is concise and proportionate; and (iv) the court should only refuse
permission on this basis where the material makes it sufficiently clear that relief is likely to
be refused even assuming the claimant establishes its case.
Question 17: Can you suggest any alternative mechanisms for resolving disputes relating
to the PSED that would be quicker and more cost-effective than judicial review? Please
explain how these could operate in practice.
29. This question, while important, may give rise to a range of valid opinion. For this
reason, the Bar Council does not seek to make suggestions. We would nevertheless welcome
the opportunity to consider and comment on any changes before they are introduced.
Question 18: Do you have any evidence regarding the volume and nature of PSED-related
challenges? If so, please could you provide this.
30. For reasons set out in our response to Question 17, we do not seek to respond to this
question.
Question 19: Do you agree that providers should only be paid for work carried out on an
application for judicial review in cases either where permission is granted, or where the
LAA exercises its discretion to pay the provider in a case where proceedings are issued
but the case concludes prior to a permission decision? Please give reasons.
31. The Bar Council disagrees strongly with the proposal to deny payment to claimant
lawyers in cases where permission to apply for judicial review is refused. Judicial review is
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one of the main ways in which citizens may vindicate their rights and hold the executive to
account. Threatening the viability of carrying out judicial review work will therefore have
serious consequences for access to justice and the ability of individuals to challenge the
actions and/or decisions of public bodies. Those decisions often have significant and serious
consequences for the everyday lives of people in Britain.
32. Anything which makes it unviable for practitioners to bring claims for judicial review
or which discourages them from doing so will likely impede access to justice and the ability
to take action to prevent wrongs by public bodies. We have no doubt that the proposals will
have this inhibiting effect.
33. It is also very concerning that a particular group only (namely, legally aided claimants)
would be subject to these provisions. Defendants would face no particular adverse
consequences when they resisted applications for permission for no good reason. The
position of privately funded claimants would remain unchanged. Treating legally aided
claimants differently would be unfair. It does not happen in relation to other areas of law. It
would create an unprecedented imbalance between the parties to litigation and will lead to
inequality of arms.
34. The proposal creates an unacceptable level of risk for practitioners and will force many
of them either not to take on this kind of work or not to take cases that are in any way
challenging or uncertain. There are several factors that lead us to this conclusion:
a. An application for permission carries a relatively high risk of initial failure. Even
where a claim is meritorious it is often necessary to persist to an oral hearing or
further to obtain permission. For example, while Wood v Commissioner of Police
[2010] 1 WLR 123 is now a leading case on privacy and police records,
permission for judicial review was only granted on appeal.
b. Judicial review claims are “front loaded” in that most of the work from the
claimant’s perspective must be done at the stage of bringing the claim.
Practitioners therefore have to invest a large amount of time, cost and effort for
which they may not get paid. This is increased still further if they have to
proceed to an oral hearing (whether a permission hearing or a rolled up hearing)
or appeal.
c. Applications for permission are difficult to predict and there is much variability
among judges, and
d. Many cases settle on beneficial terms after issue but before permission. It is not
possible to tell how these are reflected in the statistics. Under the proposals these
cases would not be paid for except on a discretionary basis.
35. Legal aid practitioners have a better than average record in obtaining permission and
in securing a positive outcome for their clients. The Impact Assessment to the current
proposal suggests that this is not lower than 18% and probably much higher. It is not
possible to be precise because much data is missing, but legal aid case outcomes only record
actual refusals in some 25% of cases. (See also Court Statistics Quarterly January to March
2013 (2013), Ministry of Justice, page 48).
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36. However, many are already operating in marginal conditions and will find the risks
too great to continue. We do not accept the assumption made in the Impact Assessment that
legal aid lawyers will respond by diversifying into other, more profitable areas of law. There
is a high risk that legal aid lawyers will exit legal aid work entirely and look to other
markets. The exit of legal aid lawyers is not in the public interest: everyone should have
access to lawyers. Competition will suffer, which is bad for consumers. The Impact
Assessment lists the main affected groups in general terms, but does not have due regard to
the social impact of the policy or the value of access to justice for all.
37. There is likely to be a disproportionate impact on black and minority ethnic (BME)
barristers due to the fact that the majority of judicial review cases are immigration cases and
BME barristers are over-represented in this area of legal practice.
38. Even if permission is refused that does not mean that the claim ought not to have been
brought. Often claims become academic or the merits change when the authority produces
late disclosure. In other cases the refusal simply shows that the judge disagreed with the
argument and not that it was misconceived. If lawyers have to bear all of these risks without
being paid then many will stop doing the work altogether.
39. The current proposal increases the incentive for local authorities to fail to engage or to
provide important information when they ought to because authorities may be able to
“starve out” claimants because their lawyers will have to give up before issuing
proceedings. The proposal rewards bad practice by those public bodies least likely to
comply with their duties under the Human Rights Act 1998.
40. A particularly damaging part of the proposal is that it penalises practitioners by
refusing payment where the claim settles before permission with a benefit to the client. It is
often difficult to obtain a costs order in these cases. The Ministry of Justice proposes that
there should be a power to pay but, for reasons set out in our response to Question 20, the
scheme under consideration in the Consultation Paper will be ineffective.
41. In proposing a scheme for discretionary payments in cases that settle prior to a
permission decision, the Government says that it wants to be sure that there are not cases
where the respondent concedes simply to avoid the costs and delay of litigation (paragraph
12 of the Consultation Paper). It is difficult to find evidence in the Consultation Paper or in
the Impact Assessment to indicate whether or to what extent public authorities compromise
judicial proceedings as a pure matter of expedience rather than on a principled basis. The
Government does not appear to have surveyed or otherwise assessed government
departments in relation to their motivations for compromising judicial review applications,
which would have enabled us to comment on the Government’s concerns.
42. The Impact Assessment does not monetise or estimate the costs to the LAA of running
the discretionary scheme. The costs are said to be “small” but there is no evidence to support
this assessment. The proposal to have a discretionary scheme for payment fails to recognise
that settlement without going to court is efficient, which the Ministry of Justice would
doubtless regard as a benefit in other areas of policy. The Consultation Paper highlights the
large number of cases (40% of all applications in 2012) that end by being withdrawn before a
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permission decision. However, evidence about the grounds for withdrawal is virtually non-
existent because the reasons for withdrawal are not recorded (see paragraph 12 of the
Consultation Paper). This uncertainty, and the use of discretion as proposed, call for more
detailed modelling and discussion with stakeholders. The Impact Assessment ought to
model what appears an obvious incentive not to settle the case before going to court.
HMCTS costs would presumably be significant if even a proportion of these cases went to
court, and there may be other whole-of-government costs too.
43. We believe that the Government’s proposals may have unintended consequences. The
objective of expediting cases that concern economic growth and infrastructure (set out in
paragraph 6 of the Consultation Paper) may be weakened if there is an incentive not to settle
legally aided judicial review cases before a permission decision. We are concerned that the
Government may not have assessed whole-of-government costs, including the costs to
departments concerned with promoting economic growth. If a proportion of legally aided
cases that would otherwise settle were incentivised to fight on, the policy would risk
diverting resources towards litigation in those cases and away from cases concerning
strategic infrastructure, contrary to the public interest.
44. Rolled up hearings should never be undertaken at risk, owing to the volume of work
involved. Hearings are rolled up by court order – often for reasons aimed at protecting the
defendant, for example where the court considers that the merits should be ventilated but
wishes to keep alive an arguable objection from delay or standing. It is not fair that a
provider should not be paid for work undertaken under a court order.
45. If the Ministry of Justice is determined to penalise practitioners by making
retrospective decisions not to pay them for work they have done then this should only apply
where they have brought proceedings improperly. There is a ready mechanism to decide
this since judicial review proceedings can now be declared to be wholly without merit if
permission is refused. This is intended to block an application for oral renewal but could
also be adapted for legal aid purposes.
46. Finally, it is important to recall why, in contrast with ordinary civil litigation, there is a
permission stage in judicial review proceedings at all. Its purpose is precisely to provide a
filter to protect public bodies against unarguable claims. That represents a satisfactory
balance between the public interest in access to court and the public interest in
administrative certainty. There is simply no evidence that unarguable claims are routinely
permitted to proceed beyond the permission stage. In other words the existence of the filter
amply serves its intended purpose. A claim is either arguable or it is not, and the permission
stage is the appropriate mechanism for determining that question. It is wrong in principle to
impose additional, specific disincentives to accessing the permission stage itself. That does
not “rebalance” judicial review; rather, it risks fatally undermining it.
Question 20: Do you agree with the criteria on which it is proposed that the LAA will
exercise its discretion? Please give reasons.
47. The proposed criteria are so exacting that they will rarely be met. Since they trigger a
discretion only, there will be no practical way to enforce payment. The criteria are
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cumbersome and time consuming. Lawyers will need to provide evidence in support of
their claim (paragraph 129 of the Consultation Paper). In complex cases, it may take many
hours to consolidate the evidence and make representations to the LAA. The provider will
presumably not be paid for this work.
48. The criteria are subjective and vague. We do not think that the LAA is equipped to
make finely grained judgments about the lawyer’s conduct of the case (paragraph 125(i)) or
about the benefit to the client of the remedy obtained (paragraph 125(ii) and (iii)) or about
whether permission would have been granted by a judge (paragraph 125(iv)).
49. In cases that compromise, each party almost by definition accepts something less than
was sought or resisted in the pleadings. It is difficult to understand how the LAA would be
able to conclude whether the compromise was sufficiently beneficial to the claimant to
justify payment (paragraph 125(ii)), as this would depend on all the circumstances and on
the parties’ attitudes towards the compromise. A cautious claimant (or a vulnerable claimant
unable to stand the stress of litigation) might compromise earlier than an aggressive litigant,
yet the latter’s lawyers may be more likely to be paid. There is no logic to such an outcome.
50. The proposed criteria create the risk that the opposing, defendant public body will
influence whether a provider gets paid. Under paragraph 125(iii), it will be relevant whether
the claimant obtained a remedy as a direct result of the proceedings or for some other reason
(see footnote 66). Defendants may (and do) refuse to accept that judicial review proceedings
have forced a change of position. This means that an obdurate defendant may put a
claimant’s lawyer out of payment.
51. The LAA will be judging the strength of a claim (under paragraph 125(iv)) when there
has been no judicial decision. It is difficult to understand how the LAA is equipped to take
on a quasi-judicial role. The LAA’s decisions will suffer from being hypothetical and ex post
facto. It is not clear to us why it should be more cost effective to have the LAA involved in
intricate decisions of this sort than it would be to provide payment to the provider.
52. If a discretionary scheme is to be introduced, it should at the very least give the LAA
an overriding discretion to award payment even where the criteria are not met. Exhaustive
criteria cannot capture all circumstances in which it would be right to award payment. A
degree of flexibility will provide better value for money: it will lead to fewer disputes with
the LAA and fewer resources will be diverted to the scheme.
Question 21: Should the courts consider awarding the costs of an oral permission hearing
as a matter of course rather than just in exceptional circumstances?
53. We disagree with this proposal. While superficially meeting the Government’s
objective of cost-cutting, the proposal to make it easier for defendants to claim costs at the
permission stage will generate unintended consequences. Renewal hearings are designed to
be short and speedy. Public authorities are not required to attend unless ordered to do so.
Under the proposals, public authorities will be incentivised to attend hearings and will lose
the incentive to consider carefully the merits of attending before deploying public resources
for this purpose. As expressed in R (MM Somalia) v Secretary of State for the Home Department
[2009] EWHC 2353 (Admin): “the Secretary of State... has an important function in
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determining whether or not to defend, and thus argue, any claim”. This duty should be
equally applicable to the permission stage as to the substantive hearing.
54. The Government’s proposal to shift costs will inevitably lead to longer and more
protracted hearings as the parties do battle over whether the public authority’s appearance
was reasonable and whether the authority’s costs were reasonable. This will slow down the
court lists and increase HMCTS costs, while diverting judicial resources away from deciding
other cases.
55. The Impact Assessment assumes that paying the costs of a renewal hearing will act as
a financial disincentive to claimants. There is no evidence to support this assumption.
Wealthy litigants may value access to justice above financial outlay. All litigants, whether
wealthy or otherwise, already undertake some financial risk when launching proceedings.
The financial risk means that some, meritorious judicial review cases are not pursued. We do
not accept that shifting costs to claimants at the permission stage will alter the present
incentives and disincentives for claimants to renew their applications, while it may
incentivise public authorities to appear at hearings more often than otherwise, at risk to the
public purse.
56. The data does not set out the rate of attendance by public authorities at renewal
hearings, but it is fundamental that the courts need to be even-handed between the parties.
If the Government is determined to implement costs shifting, it should operate both ways.
The courts should have discretion to award costs against a defendant who appears and loses
a permission hearing irrespective of any future costs awards in the proceedings as a whole.
57. We make a further point here which goes to the “rebalancing” intention behind this
part of the Consultation Paper and questions 19-21. It is disturbing that all the proposals
made in the Paper envisage restrictions or disincentives as against the claimant. There is no
acknowledgement that unnecessary cost and delay can also be contributed by defendants.
58. In our experience, it is all too often necessary for claimants to bring proceedings
because the prospective defendant has failed adequately to engage with the issues at the
pre-action stage. The Paper impliedly recognises this problem, referring as it does to the
tendency of some cases to settle favourably to the claimant before the permission stage. Any
“rebalancing” of the system needs to provide proper incentives for public bodies to behave
positively early on. It is all too tempting for a public body that receives pre-claim
correspondence – often before it has sought independent advice from a member of the Bar –
to retreat reflexively into a defence of its position, rather than to review objectively whether
it has fallen into error. That then becomes an entrenched position in the proceedings. In
many cases, proper consideration of the prospective grounds for review early on would
avoid the need for proceedings altogether, or at least narrow the issues and so save costs.
59. We therefore strongly urge the Government, if it is serious about questions of
“balance”, to make proposals to address this point.
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Question 22: How could the approach to wasted costs orders be modified so that such
orders are considered in relation to a wider range of behaviour? What do you think would
be an appropriate test for making a wasted costs order against a legal representative?
60. We thoroughly reject the premise of this section of the Consultation Paper and the
accompanying Impact Assessment that it is only claimant lawyers who are guilty of
behaviours that generate avoidable costs. That is not the Bar’s experience. The Government
does not deal at all with avoidable costs that are incurred by public authorities or non-
claimant lawyers, and so this aspect of the Consultation Paper is wholly one-sided. The
Impact Assessment must be flawed on the grounds that it omits a raft of cost-benefit
analysis around costs wasted by defendants and their lawyers.
61. The Bar Council takes no side as between claimants and defendants, or their respective
lawyers. Our concern is with access to justice and with promotion of high standards of
conduct by advocates regardless of which party they find themselves representing. In this
context, we are bound to observe that the Government is in danger of demonising claimants
and their lawyers for political convenience. We urge the Government to ensure that
everyone who goes to court is treated equally and that penalties are not directed to only one
party to proceedings. Equality before the law is part and parcel of the rule of law. Inequality
of arms will inevitably result in damage to the administration of justice. It will damage the
accountability of public decision-makers. The Government should not use costs provisions
as a means of immunising its decisions from challenge by a side-wind.
62. We also have serious concern about the micro-management of costs issues through
statutory instrument. Judges have expertise in making costs orders (including wasted costs
orders) which neither Parliament nor the executive have. Judges who try cases are in the
best position to assess costs on all the evidence. We do not think that a statutory instrument
would add value and certainly the Government should not strive to constrain the role of the
judiciary in what is par excellence a judicial task.
63. We are currently struggling to conceive a costs rule that could lawfully penalise one
party and not the other. The key issue in the Consultation Paper appears to relate to the
costs of renewed permission hearings (see paragraph 150). However, there are already
mechanisms in place to deal with weak renewals. First, as mentioned above, judicial review
proceedings can now be declared to be wholly without merit if permission is refused, which
will block an application for oral renewal. Secondly, the Government in any legal
proceedings to which it is a party has the option of seeking appropriate case management
directions to ensure that weak cases are identified and brought to an early conclusion.
Thirdly, the Administrative Court itself has held “Hamid” hearings, in which lawyers
responsible for submitting unmeritorious urgent and out of hours applications or
applications that fail to comply with procedural requirements are required to attend before
the Court to explain their conduct.
64. We understand that, since Hamid, a number of such hearings have taken place (see e.g.
Hamid [2012] EWHC 3070 (Admin), Awuku [2012] EWHC 3298 (Admin), Awuku (No 2) [2012]
EWHC 3690 (Admin); and B & J [2012] EWHC 3770 (Admin)). We further understand that
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there was a general consensus at the last Administrative Court User Group meeting (on 23
July 2013) that Hamid hearings are a good idea.
65. In our view, Hamid hearings are preferable to new costs rules. They target those whom
the judges regard as being at fault and we hold the strong view that judges are in the best
position to know. While targeting errant lawyers, they do not have any generalised, chilling
effect on lawyers striving to serve their clients’ interests, or on access to justice.
66. We suggest that these various, new measures be given time to have their effect, and
that a concluded view on the value of new costs rules be deferred until the effectiveness of
recent changes has been assessed.
Question 23: How might it be possible for the wasted costs order process to be
streamlined?
67. This question concerns procedural matters which, while important, may give rise to a
range of valid opinion. For this reason, we do not seek to comment.
Question 24: Should a fee be charged to cover the costs of any oral hearing of a wasted
costs order, and should that fee be contingent on the case being successful?
68. A person seeking to defend a wasted costs application should not be required to pay a
fee at an oral hearing, in the same way that parties who defend applications made against
them are not required to pay a fee in order to appear in court.
69. It is appropriate to require a party asking for a wasted costs order to pay a fee upon
making the application, as a disincentive to unfounded applications and satellite litigation.
Question 25: What scope is there to apply any changes in relation to wasted costs orders to
types of cases other than judicial reviews? Please give details of any practical issues you
think may arise.
70. We believe that the Jackson Reforms ought to be permitted to take their full effect
before further changes are made. The costs budgeting provisions of the Civil Procedure
Rules are intended to reduce the costs of civil litigation as a whole and ought to reduce the
prospects of a party paying for the avoidable errors of a legal representative. We do not
foresee how additional costs provisions would be likely to be superior to Lord Justice
Jackson’s reforms, whether in relation to the price or in relation to the speed of litigation.
Question 26: What is your view on whether it is appropriate to stipulate that PCOs will
not be available in any case where there is an individual or private interest regardless of
whether there is a wider public interest?
Question 27: How could the principles for making a PCO be modified to ensure a better
balance a) between the parties to litigation and b) between providing access to the courts
with the interests of the taxpayer?
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Question 28: What are your views on the proposals to give greater clarity on who is
funding the litigation when considering a PCO?
Question 29: Should there be a presumption that the court considers a cross cap protecting
a defendant’s liability to costs when making a PCO in favour of the claimant? Are there
any circumstances when it is not appropriate to cap the defendant’s costs liability?
Question 30: Should fixed limits be set for both the claimant and the defendant’s cross
cap? If so, what would be a suitable amount?
71. This part of the Consultation Paper deals with a number of issues relating to PCOs.
Paraphrasing slightly:
a. Should PCOs be removed entirely in non-environmental cases, in response to a
perceived problem of “political” or “campaigning” judicial review claims where there
is no claimant with a private interest? (Question 26)
b. If PCOs are retained, should the principles applied by the courts (currently an
adaptation of the principles originally laid down in Corner House) be modified to
“ensure a better balance”? (Questions 26 and 27)
c. Should information about identity of funders be made mandatory in PCO cases,
so that the court can take this information into account in determining the cap and,
potentially, when considering orders for costs against third parties? (Question 28)
d. Should there be a presumption that the court, when making a PCO, considers a
cross-cap on the defendant’s liability for costs? Should there be fixed limits for the cap
and cross-cap in non-Aarhus cases? (Question 29)
72. We are bound to express our concern about the context the Consultation Paper sets for
these questions. Protective costs orders in no sense give a claimant a “free ride”. Rather, they
are a practical response by the courts themselves to the acknowledged problem that at the
outset of judicial review proceedings, the claimant’s eventual liability for the defendant’s
costs if the claim fails is uncertain but likely to be substantial, a factor which has an
unwelcome chilling effect on arguable claims which otherwise ought to be brought. A PCO
introduces a degree of certainty. The court’s discretion as to whether to make a PCO, and if
so at what level to set the cap, ensures that fairness can be achieved between the parties in
the particular circumstances of each case.
73. As explained above, it is wrong to equate judicial review with ordinary litigation in
which a party seeks to vindicate a purely private right. The purpose of judicial review is to
enable the legality of official conduct to be examined in the public interest. Governmental
behaviour is inevitably the product of policy – and in that sense “political” – decisions. As a
result, many judicial review claims touch on inherently “political” matters. It is also inherent
in the nature of judicial review that claims may be brought – and in many cases can only be
brought – by parties without a “private” interest of their own (again, see our comments in
relation to standing). Many such parties would be unable to invoke the court’s jurisdiction
without the certainty that a PCO brings to their eventual costs liability.
74. For all those reasons, PCOs are an essential part of the judicial review costs regime,
and we strongly oppose any suggestion that they should be discontinued in non-
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environmental cases. Among other things, that would result in an arbitrary and undesirable
distinction between environmental cases (to which the Aarhus Convention applies) and
other categories of case. We reiterate the observation, made above, that this would simply be
a recipe for fraught and wasteful boundary disputes.
75. It follows that our partial answer to question 26 is that it is wholly inappropriate to
remove the availability of PCOs from any category of judicial review claim.
76. However, we welcome the opportunity to contribute to the discussion whether the
current rules might be adjusted to improve their operation.
77. The remainder of Question 26, and question 27, raise the issue of the “private interest”
criterion derived from Corner House. This criterion has been subject to criticism, not least
because of its awkward relationship with the standing rules which require at least some
interest in the subject-matter on the claimant’s part. If the Government were to proceed with
its proposal to reduce the scope of the standing rule so that only those with a “private”
interest could bring a claim, retaining this ground for declining an order would wholly
emasculate the PCO jurisdiction.
78. In our view, whatever the width of the standing rule, it is inappropriate and artificial
for the existence of a “private” interest to operate as an automatic bar to a PCO. There may
be cases where the personal interest of the claimant is such that it is appropriate for the risk
of an adverse costs order to remain at large – for example, where the claim is in reality
brought to further a purely commercial interest. Even then, if bringing proceedings serves a
demonstrable public interest, and the claim would probably not proceed without a PCO, it is
hard to see why a PCO should be refused altogether. The nature of the claimant’s interest is
more appropriately considered as a factor in determining the amount of the cap and any
cross-cap.
79. As regards question 28, we do not oppose greater transparency in relation to funding,
as has been the trend (for example) in relation to civil CFAs, which can be thought of as a
mirror image of PCOs in affecting the ultimate costs position of the defendant. However, it
is crucial that decision-making on a PCO remains swift and proportionate, and that the rules
do not add unduly to the already “front loaded” burden of preparing judicial review
proceedings within a very short limitation period. A lengthy examination of detailed
financial information would be inimical to these objects. It is also important to avoid too
sharp a contrast with the position in Aarhus claims. Therefore any new requirement should
seek, at most, a brief and summary indication of the claimant’s financial and funding
position, suitable to be taken into account as part of the paper decision on a PCO. In most
cases – i.e. unless it is clear that either the claimant has effectively indemnified itself against
costs liability, or its means are such that even a very large costs order would have no
material impact on its finances – the information would go to the amount of the cap rather
than the question whether a PCO should be made at all.
80. On questions 29 and 30 we have no difficulty with the court routinely considering
whether to impose a mutual cap on costs recoverable by a successful claimant. But it is
important that the level at which any cap is set does not make funding arrangements such as
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CFAs generally unviable. Such methods of funding a claimant’s own costs are of increasing
importance with the decline in availability of legal aid for persons of moderate means. Fixed
limits have the advantage of simplicity, and the presumptive limits (£5,000/£35,000) set in
Aarhus cases strike us as a reasonable starting point. But judicial review claims vary widely,
and the court should retain discretion to tailor the cap and any cross-cap to the
circumstances of each case – though as we have pointed out, it is important that the
decision-making exercise remains a swift and relatively summary one.
Question 31: Should third parties who choose to intervene in judicial review claims be
responsible in principle for their own legal costs of doing so, such that they should not,
ordinarily, be able to claim those costs from either the claimant or the defendant?
Question 32: Should third parties who choose to intervene in judicial claims and who
cause the existing parties to that claim to occur significant extra costs normally be
responsible for those additional costs?
Question 33: Should claimants be required to provide information on how litigation is
funded? Should the courts be given greater powers to award costs against non-parties? Do
you see any practical difficulties with this, and how those difficulties might be resolved?
Question 34: Do you have any evidence or examples of the use of costs orders including
PCOs, wasted costs orders, and costs against third parties and interveners?
Question 35: Do you think it is appropriate to add to the criteria for leapfrogging so that
appeals which are of national importance or which raise significant issues (for example
the deportation of a person who is a risk to national security, a nationally significant
infrastructure project or a case the outcome of which affects a large number of people) can
be expedited?
81. The text of this part of the Consultation Paper reflects a misunderstanding of the
function of interventions in judicial review proceedings, a point linked to the role of judicial
review itself. It is axiomatic that a person seeking to intervene under CPR 54.17 is not
directly affected by the outcome of the case; such a person would ordinarily become an
interested party (see the definition in CPR 54.1(1)(f)). Rather, the concept of a third party
intervention derives from the constitutional nature of judicial review as an examination, in
the public interest, of the legality of the exercise of official power. The role of the intervener
is typically to assist the court in understanding the broader legal and policy context in which
the immediate issues arise. That does not prevent an intervener from having a particular
policy position on the issues in question; but that position will generally be well known to
the court, and does not detract from the value to the court, and thus to the wider public, of
deciding the issue with the benefit of an intervener’s assistance and expertise in the relevant
field.
82. It is significant that the intervener will often be a Government department, typically in
a case where the defendant is a local authority or other non- central Government body but
where Ministers have a policy interest in the subject-matter. For example, R(C) v.
Commissioner of Police for the Metropolis [2012] EWHC 1681 (Admin), [2012] 1 WLR 3007
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[2013] concerned the legality of the Commissioner’s policy of long-term retention of custody
photographs even where the suspect had not been charged or had been acquitted. The
Divisional Court permitted Liberty and the Equality & Human Rights Commission to
intervene in support of the claimants’ case (the former orally and in writing, the latter in
writing only) and the Home Secretary (orally and in writing) in support of the defendant. It
is evident from the judgment that the court valued the assistance it received from this
broader perspective on the issues it had to decide. This case, raising difficult issues of law on
which direct authority was lacking, is typical of the class of case in which the Administrative
Court receives third party interventions.
83. Against that background, we would strongly resist any change to the present position
where a third party intervention is usually on costs-neutral terms; that is, the intervener
would ordinarily expect neither to pay nor receive costs to or from a party. The participation
of an intervener will have some, generally marginal effect on overall costs; but that is offset
by the high value the court attaches to the benefit of the intervener’s assistance. The existing
powers of the court to award costs, typically reserved for cases where an intervener
unreasonably causes significant extra expense to be incurred, or in effect takes the place of a
party, provide sufficient control over the intervener’s conduct. Intervention is moreover in
the discretion of the court, which can refuse to allow participation if it considers that nothing
of value would be added. The court can also control costs by limiting an intervention to
written submissions where appropriate.
84. The prospect of introducing a general presumption that an intervener would be
responsible for the incremental increase in costs resulting from its participation would
operate as a significant disincentive, potentially robbing the court of this valuable source of
assistance in many cases. It would also generate unwelcome satellite arguments about
exactly what costs are attributable to the intervention.
Question 36: Are there any other types of case which should be subject to leapfrogging
arrangements?
Question 37: Should the requirement for all parties to consent to a leapfrogging
application be removed?
Question 38: Are there any risks to this approach and how might they be mitigated?
Question 39: Should appeals from the Special Immigration Appeals Commission, the
Employment Appeals Tribunal and the Upper Tribunal be able to leapfrog to the
Supreme Court?
Question 40: Should they be subject to the same criteria (as revised by the proposals set
out above) as for appeals from the High Court? Are there any other criteria that should be
applied to these cases?
Question 41: If the Government implements any of the options for reforming leapfrog
appeals, should those changes be applicable to all civil cases?
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85. These questions, on leapfrogging, concern procedural matters which, while important,
may give rise to a range of valid opinion. For this reason, we do not seek to comment.
Question 42: Do you agree with the estimated impacts set out in the Impact Assessment?
Question 43: From your experience are there any groups of individuals with protected
characteristics who may be particularly affected, either positively or negatively, by the
proposals in this consultation paper?
86. We have commented on the Impact Assessments under the relevant Questions. We
would be grateful if our comments could be read across to Questions 42 and 43.
Bar Council
October 2013
For further information please contact
Jan Bye, Head of Professional Affairs
The General Council of the Bar of England and Wales
289-293 High Holborn, London WC1V 7HZ
Direct line: 020 7242 0082
Email: [email protected]
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