The Independent Review of Criminal Legal Aid

ARTICLE

The Independent Review of Criminal Legal Aid

Alastair Logan OBE, LL.B. examines the Government’s review of the criminal legal aid system, and asks if you have experience that could assist with their findings.

The Independent Review of Criminal Legal Aid (IR) was set up by the Ministry of Justice (MoJ) and launched in December 2018 in response to stakeholder concerns about the long-term sustainability of Criminal Legal Aid. The IR is a comprehensive review into the Criminal Legal Aid fee schemes and the market of Criminal Legal Aid providers (barristers, solicitors and legal executives). 1 It has two main objectives:

1) To reform the Criminal Legal Aid fee schemes so that, firstly, they:

■ fairly reflect, and pay for, work done;

■ support the sustainability of the market, including recruitment, retention, and career progression within the professions and a diverse workforce;

■ support just, efficient, and effective case progression; limit perverse incentives, and ensure value for money for the taxpayer;

■ are consistent with and, where appropriate, enable wider reforms;

■ are simple and place proportionate administrative burdens on providers, the Legal Aid Agency (LAA), and other government departments and agencies; and

■ ensure cases are dealt with by practitioners with the right skills and experience.

2) To reform the wider Criminal Legal Aid market to ensure that the provider market:

■ responds flexibly to changes in the wider system, pursues working practices and structures that drive efficient and effective case progression, and delivers value for money for the taxpayer;

■ operates to ensure that Legal Aid services are delivered by practitioners with the right skills and experience; and

■ operates to ensure the right level of Legal Aid provision and to encourage a diverse workforce.

The IR is chaired by Sir Christopher Bellamy QC. As a Barrister, he specialised in European, competition and regulatory law. In 1992 he was appointed as a judge to (what is now) the General Court of the European Union, where he served for 7 years. At the end of 1999, he returned to the UK to set up (what is now) the Competition Appeal Tribunal (CAT), of which he was President until 2007, when he became a senior consultant with Linklaters LLP. He stepped down from Linklaters at the end of October 2020, and re-joined Monckton Chambers. Sir Christopher focusses on appointments as a mediator or arbitrator in disputes including but not limited to competition and regulatory matters, arising anywhere in the world.

He leads a dedicated review team within Government and will have close oversight of the work to ensure it meets these terms of reference and delivers robust, evidence-based recommendations. He is also supported by an Expert and Advisory Panel who will support the review by testing and challenging the Review’s emerging findings and recommendations. The panel is composed of individuals from a range of backgrounds, skills and experience and includes amongst its experts Richard Atkinson, Co-Chair of the Criminal Law Committee of The Law Society, The Right Honourable Baroness Hallett DBE and Professor Dame Hazel Genn DBE, QC (Hon), FBA, LLD.

It also includes Professor Mayson who produced the Independent Review of Legal Services Regulation, and concluded that the legislative framework under the Legal Services Act 2007 (the Act) is outdated and not sustainable in the long-term and proposes wholesale reform in the future. Central to Mayson’s framework is a move away from the current title-based regulation towards risk-based regulation of all legal practise areas, whether reserved or non-reserved. The view of the profession was that that in the current climate, legal services firms need more support, not a wholesale review of the regulatory framework, and that policy makers need to make better use of the current framework. Instead of contemplating a major reform the immediate focus should be on aiding the recovery of the legal sector post-COVID-19, proper investment in the legal aid and justice system, and greater public legal education to help people recognise the legal issues and know when to seek help.

The IR will look at the criminal legal aid system in its entirety and will seek to ensure it provides high quality legal advice and representation, that:

■ is provided through a diverse set of practitioners

■ is appropriately funded

■ is responsive to user needs both now and in the future

■ contributes to the efficiency and effectiveness of the Criminal Justice System

■ is transparent

■ is resilient

■ is delivered in a way that provides value for money to the taxpayer

The IR forms part of wider work to ensure criminal defence remains an attractive career for practitioners now and into the future. New spending plans unveiled by the Treasury to boost the justice system by just over £500 million are good news in a time of crisis, but after decades of cuts much more still needs to be done. Former Law Society President David Greene said: “We welcome the pledge of cash for the justice system. As part of our Reset, Resilience and Recovery campaign 2 we called for extra funds to make the justice system sustainable. We are pleased the Chancellor has listened and adopted our recommendations. Justice in this country was in a dire situation already before the pandemic, and is under pressure now like never before, so the £275 million pledged to reduce persistent Crown Court backlogs has come not a moment too soon.”

£43 million has also been secured to ensure that courts and prisons remain COVID-safe – a key concern of legal practitioners and a consistent theme of the Law Society’s representations to the government.

While the second part of the IR is now under way and will hopefully provide the structural increase in resources needed for the long-term sustainability of the sector, any benefits from it are some way off. The Government has failed to recognise the damage done to firms and to the provision of legal advice and representation in Criminal law by the consistent failure to increase payments for over 20 years. An immediate increase is a necessity to provide criminal defence solicitors with the additional funds they so desperately need. The government must demonstrate it is committed to ensuring the position does not deteriorate further while they work out how to address the crisis.

As of 1 February 2021, there were 1,109 firms holding a criminal legal aid contract. This is 752 fewer firms than the 1,861 in 2011 and 162 fewer than the 1,271 firms in February 2019, meaning about 75 firms have left the market each year for the past decade. 3 As a result of the pandemic, work for criminal legal aid firms has fallen through the floor – leaving many hanging on for survival and without urgent intervention, there is danger that many more duty solicitor schemes will face imminent collapse. Legal aid practitioners must be paid properly, and their businesses must be economically viable, otherwise the system will collapse.

If you have experience that would assist the IR, you are urged to offer the Review whatever support you can provide to enable them to understand in detail the challenges defence solicitors and firms are facing. This can be done by contacting the IR Chair via iclar@justice.gov.uk. ■

1. https://assets.publishing.service.gov.uk/government/ uploads/system/uploads/attachment_data/file/946615/ terms-of-reference.pdf

2. www.lawsociety.org.uk/campaigns/reset-resilience-andrecovery

3. www.lawsociety.org.uk/contact-or-visit-us/press-office/ press-releases/urgent-cash-injection-needed-to-haltdemise-of-criminal-legal-aid-firms

4. www.lawgazette.co.uk/news/criminal-legal-aid-reviewissues-call-for-evidence/5107991.article

Alastair Logan OBE, LL.B.

Alastair Logan OBE, LL.B.