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

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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

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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.

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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

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“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.

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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

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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.

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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: CHudson@BarCouncil.org.uk

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: SJBennett@BarCouncil.org.uk

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: SJBennett@BarCouncil.org.uk

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.

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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

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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

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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: JBye@BarCouncil.org.uk

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