The senior Bar is to receive ‘a New Year pay hike’ as a result of government reforms to advocacy fees, according to Chancery Lane.
You can read the Ministry of Justice’s new consultation here. The proposals are designed to be ‘cost neutral’. ‘There is no intention to reduce or increase the overall cost envelope,’ the MoJ says. ‘The proposed scheme would redistribute money, better reflecting work done, and modernising the system in concert with the Better Case Management reforms that are transforming the way that our criminal courts do business.’
According to the MoJ, the advocates graduated fee scheme relied ‘too heavily’ on pages of prosecution evidence (PPE) served by the Crown Prosecution Service to determine the complexity of cases. ‘The proposed scheme reflects a different approach,’ the consultation states. ‘It dispenses with witnesses as a proxy for complexity, and radically reduces the role of PPE.’ Instead, it says payment is fixed according to ‘a more detailed and sophisticated breakdown of the offence that the defendant is charged with’. Currently there are 11 offence categories compared to 16 under the proposals which are again broken down into 42 separate ‘bands’.
The Law Society president Robert Bourns argues that the proposals favour senior barristers at the expense of their more junior colleagues. ‘Changes to the legal aid payment scheme for advocates in the Crown Court were long overdue, but giving a pay rise to the best paid seems to run contrary to the government’s own aims of not clogging up the court system,’ he said.
Ian West, a barrister at Fountian Chambers, also reckons that the proposals ‘fail the vast majority of criminal advocates – in fact, all but that 10% of them who are QCs’. ‘The silks will get a pay rise – a substantial one – whilst juniors at all levels will struggle to maintain parity, and most will suffer (yet another) pay cut,’ West writes.
Chancery Lane, which pulled out of the AGFS working group last month, reckons that the government should be ‘investing in the early part of the process as this would reduce the number of cases that go to full trial’. Yet the proposed scheme ‘incentivises late changes to defendants’ pleas, drawing out the process and running against the government’s aims of encouraging early guilty pleas’.
‘Meanwhile, already well paid QCs look set for a pay increase of around 10%,’ Bourns continued. The advocates towards the bottom of the pay scale – more junior barristers and solicitors – will either stay the same or receive much smaller increases. Fees across the board are due for an increase, but it is not acceptable to achieve that in one part of the system at the expense of the rest.’ The Law Society pulled out of talks because, as Bourns explained, restrictions in on how information was shared which ‘meant it was not possible for us to contribute to the process in a meaningful way’.
Meanwhile the Bar was broadly supportive of the proposals. ‘It goes without saying that no scheme is going to be absolutely perfect,’ commented Duncan McCombe, chairman of the Young Barristers’ Committee. There were ‘a few modest drops in the base amounts for payments for some cases’, he said. ‘But the clear advantage is that young barristers will be paid for their time in court, rather than being paid on an arbitrary basis, and will paid for each appearance rather than feeling like every other case is a loss leader,’ he said.
‘No scheme can be perfect – you will find flaws in this one,’ wrote CBA chair Francis FitzGibbon QC in his weekly message. ‘There is no new money, and no recognition that rates have declined sharply in real terms over the last 20 years. We still have battles to fight, but the CBA believes that the new scheme is a great improvement on what has gone before, and we should at least give it a cautious welcome as a step in the right direction.’
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