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House of Commons Hansard
08 May 2018
Volume 640

  • I beg to move,

    That the Criminal Legal Aid (Remuneration) (Amendment) Regulations 2018 (S.I., 2018, No. 220), dated 20 February 2018, a copy of which was laid before this House on 23 February, be revoked.

    The gravest consequences for anyone accused of a serious crime in our criminal justice system is that their liberty is taken away from them. When that is at stake, no one should be left unrepresented in a court. When that is at stake, we have a duty, as a society, to guarantee the future of effective legal representation. Failing to do so creates the real risk of injustices. This motion today is about the threats posed to our justice system and specifically to criminal defence by the Government’s changes to the payments for the criminal legal aid system. These changes are why around 100 chambers are now, in effect, striking, taking co-ordinated industrial action, and refusing more publicly funded work. The serious consequences of this action are clear for all to see. As the BBC reported on 4 April:

    “A murder case at the Old Bailey has become one of the first to be affected by a strike by barristers.”

    On 9 April WalesOnline explained:

    “A woman accused of murdering Swansea pensioner John Williams has appeared in Crown Court without legal representation because of a barristers’ strike.”

    There are many other examples.

  • The hon. Gentleman must recognise that the Bar was strongly in favour when this was consulted on, with statements such as

    “the bar council and the young barristers committee welcome new proposals published today”,

    and

    “as circuit leaders over the period of the negotiations it is our shared view that we should support the implementation of the scheme”.

    The Criminal Bar Association was in favour. So what exactly is the hon. Gentleman talking about?

  • Well, this is not the CBA’s scheme and it does have serious concerns about aspects of this provision. Tonight is an opportunity for the Government to think again and make some sensible concessions on the most controversial aspects. If everyone was happy with the measures, the criminal barristers would not have voted by 90% to take strike action.

    We have a responsibility to contribute to resolving this situation by encouraging negotiation and facilitating a solution before there is further escalation. That means that the Government should withdraw these controversial changes, go back to the drawing board and come up with a scheme that attracts widespread support, rather than provoking a backlash.

  • Given the importance of what the hon. Gentleman said in his opening remarks about the right of representation in court—a very serious procedure indeed—does he not agree that barristers withdrawing their services in strike protest is not serving justice at all, and that there should be another way for them to seek redress? Will he take this opportunity to condemn the strike?

  • I will not be taking this opportunity to condemn our barristers because I do not condemn our barristers. The hon. Gentleman may wish to ask whether we support the action. Yes, we support it. We deeply regret the fact that the Government have pushed the barristers into this position. We want the Government to take this opportunity to think again and listen to people who have been backed into a corner.

  • Does my hon. Friend agree that this action is the cumulative effect of years and years of assault on honest, hard-working lawyers who represent clients? These people are not at the top of the profession in terms of their income or their futures; they are people who are committed to individuals in very difficult situations, and it is the Government who have let them down.

  • My hon. Friend makes an important point eloquently. For many of the barristers I have spoken to, this really is the straw that broke the camel’s back.

    Before I touch on the precise concerns that have been raised about the new scheme, I will briefly look at the wider context that has caused this issue to be so controversial. As I have said, in many ways this issue is the straw that broke the camel’s back in the justice sector. Our justice system is at tipping point. The deep crisis unleashed by drastic cuts could soon become an emergency. In some areas, it already has.

  • The hon. Gentleman is talking about cuts. Does he accept that, had Labour won the 2010 general election, it too would have made substantial cuts to the Ministry of Justice budget based on its own manifesto promises?

  • Things have moved on since the 2010 general election.

    Since 2010, the budget of the Ministry of Justice has fallen by 40% in the deepest cuts of any Department. A further £600 million—around 10% of the MOJ’s budget—is to be cut in the next two years. It is a system that has already been cut to the bone. The crisis in our prisons is driven by staff and budget cuts, as has been well documented. It has been less well documented that 100 or so courts have been sold off for little more than the price of the average UK house, having negative impacts on victims and witnesses. What has also not been discussed as much as it should have been is the fact that youth offending team budgets have been decimated, with central Government funding halved over the past few years, or the fact that probation privatisation is failing despite hundreds of millions of pounds more recently going into bailing out these failing private companies. But it does not stop there, because on top of this, there are big reductions in police numbers and big reductions in the Crown Prosecution Service budgets. In 2016, the Public Accounts Committee told Members of Parliament that the criminal justice system was at breaking point. After years of cuts, the system is clearly now broken. Let us be clear: an underfunded system risks yet more victims being denied justice and risks yet more miscarriages of justice.

    Today we are discussing cuts related to legal aid. Our democracy and the rule of law, despite the hon. Member for North Dorset (Simon Hoare) advocating people being banned from not going to work, depends on people being able to defend their rights. Our welfare state, created in the aftermath of the second world war, was about defending people’s basic human rights. It was about guaranteeing every citizen access to the human rights of education and healthcare but also of access to justice. In civil cases, when people cannot access justice, the consequences are grave.

  • Does my hon. Friend agree that one of the basic fundamentals of our society is equality before the law, and that without access to legal aid, very many people are being denied equality before the law?

  • If people do not have access to justice—access to legal representation—and are not equal before the law, then basically some of our hard-won rights are not worth the paper they are written on. My hon. Friend makes a very good point.

    As I said, in civil cases, when people cannot access legal aid, the consequences are grave. To illustrate that idea, let us look at what has happened in recent days and recent weeks. A migrant, or perhaps someone who was thought to look like a migrant, is not able to get legal advice after the Government slashed access. Without legal help, as I said, the rights that we have—often rights hard won by social justice campaigners across the decades—are simply not worth the paper they are written on.

  • My hon. Friend is making a powerful point. My constituent Caitriona McLaughlin works in the particular area of migrants and justice. With the Bar refusing to take new work at the new rates, she says that more and more people will suffer miscarriages of justice because of this statutory instrument. Does he agree with her?

  • I do agree. My hon. Friend makes a powerful point from his constituent’s experience. That is why I have been forced to bring this motion before the House to revoke the statutory instrument.

  • Will the hon. Gentleman give way?

  • I will make some progress if that is okay.

    The crisis in legal aid goes much wider than the civil sector, with criminal cases affected too. As I said, that has the gravest of consequences. We now have more people representing themselves, even in the most serious of criminal cases—those tried at the Crown court. I want to draw the House’s attention to Ministry of Justice research published last week. The summary paper —only a summary—was published only after dogged pressure from journalists like Emily Dugan. It highlights judges’ concerns about people representing themselves, referring to

    “unrepresented defendants not understanding how to present evidence about their case at hearings, how to prepare defence statements, or how to ask questions in court.”

    The obvious result of this is that some judges and prosecutors felt that those who appeared in court without a lawyer were more likely to be found guilty. The legal system should not be skewed towards wealthier people. Everybody who wants it should have access to proper legal representation if charged with a criminal offence. Justice should be blind. It should also not be based on the depth of people’s pockets. We now have criminal barristers forced to take co-ordinated action in refusing to take up legal aid work because of changes to the Government’s funding scheme.

    Labour Members are proud to have submitted this motion to annul the legislation changing the scheme through which criminal defence advocates are paid for carrying out publicly funded work in the Crown court—the so-called advocates graduated fee scheme. The motion has now won the backing of over 130 Members of Parliament. We welcome the fact that, albeit belatedly, time was given for a parliamentary vote to annul this legislation.

    I hope that Conservative Members who understand and respect our legal system and the importance to justice of proper access to criminal defence will not vote along party lines tonight. I hope they will help to forge a consensus that helps the Government to rethink this flawed scheme.

  • When these negotiations were in process, Bar circuit leaders said:

    “As the Circuit Leaders over the period of the negotiations, it is our shared view that we should support the implementation of this proposed scheme.”

    Does the hon. Gentleman not think it is important to listen to those who are working in our criminal courts day after day?

  • It is not the Criminal Bar Association’s scheme. The CBA has serious concerns about the controversial aspects of the scheme. If the scheme were fine, 90% of criminal barristers would not have voted to take this action. It is clear that something has gone wrong and that the Government have backed these barristers into a corner rather than forging the consensus we need.

    The Government’s scheme fundamentally changes the way in which criminal defence advocates are paid for carrying out publicly funded work in the Crown court. The new fee system means that the vast majority of cases will now receive a flat fee for a case, so that a case with 250 pages pays the same as a case with 5,000 pages. A rape case with a single complainant and defendant will have the same fee as a rape case involving multiple victims and multiple defendants. That disincentivises lawyers from undertaking complex cases, which often require weeks of preparation.

  • My hon. Friend is making a powerful speech. The main losers in this are senior-level junior practitioners, who prepare and research complex cases. There is no fee for looking at prosecution disclosure, which means there is a greater chance of miscarriages of justice. Is this not completely misconceived in the way it has been put together? As he says, it will simply lead to cases either not being taken or not being prepared to the standard that they should be.

  • My hon. Friend makes a powerful point. We cannot tolerate a situation where either the guilty walk free or the innocent go to prison.

    The scheme fails to recognise the growing work required to deal with the increasing amount of evidential and unused material. Advocates are expected to consider that material without specific payments, however much additional material is served. That is especially worrying, given the fact that a series of trials, including rape trials, have recently collapsed because of failings in the disclosure of evidence.

    Despite Government promises of cost neutrality, the CBA says that the scheme amounts to a £2 million cut, and no future-proofing is built into it, resulting in a year-on-year inflationary cut. The new scheme does not address the damage caused to the system by substantial real-terms cuts to legal aid rates over recent years of 40%. As a result of these reductions, there are pressing concerns about the ability to retain younger barristers and recruit the next generation into criminal defence work. After two decades without any sort of basic cost-of-living pay rise, criminal law is no longer an attractive career option for young solicitors or young barristers entering the system saddled with debt, and others are leaving because of the increasingly unreasonable demands made on them to do more and more for less and less.

  • My hon. Friend is making a powerful speech. On the issue of recruitment, is he not particularly concerned that if the Bar is to reflect the whole of society and is to draw more widely on people from less privileged backgrounds, black and minority ethnic backgrounds and so forth, it is essential that a career at the Bar is seen to provide a reasonable income?

  • My hon. Friend makes an important point. We are running the risk, with the path we have been taking in recent years in the justice sector, of the death knell being sounded on social mobility in the legal professions.

    These changes also threaten the insufficient but none the less hard-won progress made on diversity and, as my hon. Friend says, social mobility. That has profound consequences, not just for people hoping for a career in the law but for public trust, as the judicial professions and institutions cease to reflect the communities they are there to serve. As Lady Justice Hallett has explained,

    “cuts to legal aid and the publicly-funded criminal justice system will set back the cause of improving diversity on the bench.”

    Criminal solicitors face similar problems with their fee scheme—the litigators graduated fee scheme. They have not received any fee increase since 1998, and the number of firms in England and Wales registered for criminal defence work has recently fallen from 1,600 to 1,200. The profession is in crisis, with an ageing demographic profile. In fact, new Law Society data paint a very bleak picture indeed of “advice deserts”, where the remaining criminal solicitors will retire and no younger solicitors are coming in to take their place. That is hardly surprising when Young Legal Aid Lawyers figures show that 53% of survey respondents earn less than £25,000 per year, and those figures relate to people qualified for up to 10 years.

  • Does my hon. Friend agree that the combination of the closure of courts and the reduction in the number of solicitors firms in market towns across the country is having a massive impact on these towns, and Conservative Members just do not seem to believe in a Britain that supports its local towns?

  • That is a very important point. The whole swathe of court closures that have occurred have really done damage to the principle of justice accessible to all and delivered locally, so that point is very important.

    The Law Society has issued judicial review proceedings against the Government in relation to further cuts to solicitors’ fees for Crown court work, and that crisis is not one that will go away. The issue for barristers will not be settled if the Government vote against our motion and carry on regardless. I understand that there is a presumption that barristers are all highly paid and some will want to paint this as being about more money going to the wealthy, but the CBA briefing points out that average pre-tax pay is about £28,000. Barristers are self-employed and the headline figures often exclude expenses, including the costs of office space, travel, staff, insurance, pension and sick pay, which the CBA estimates account for about half of a barrister’s turnover.

    To draw my remarks to a conclusion, I want to cite an anecdote published by one criminal defence lawyer:

    “Today I helped a colleague out by prosecuting the sentencing hearing in one of his cases, in a court 94 miles away from my home. The fee for that hearing is £60. £10 of that goes straight to my chambers as rent. I spent £33 on petrol and £6.30 on parking. The CPS do pay some travel—I think I’ll get £23.50 for this. Therefore, I come out with £34. The offence, by the way, was an assault on a baby. It was a 2pm hearing, so I left home at 10 and got home at 5. During those 7 hours, apart from the 10 mins I spent eating my packed lunch, I was either driving, getting ready for the hearing, in court, or explaining the outcome (a prison sentence) to the baby’s family. I don’t wish to sound ungrateful for my £34. I just can’t help but feel a little undervalued. I’ve been at the criminal Bar for 9 years. The government decides how much to pay me, and I think they take advantage of me, my skills, and my sense of public duty. #TheLawIsBroken”.

    I hope you will forgive me, Mr Deputy Speaker, if, when the hon. Member for North Dorset, who has left the Chamber, invites me to condemn people such as that barrister, I do not do so. I hope you will forgive me if, when the hon. Gentleman who has left says that this person should be forced to go to work, I say that I do not agree with such a cruel and detached analysis.

    The Government will say that they sought consensus on these issues, and that the Ministry of Justice has worked with the CBA and the Bar Council, although there are different accounts of those talks. The truth of the matter is that the Government have failed, as hundreds of barristers are now taking direct action. They have failed, as there is press speculation of further barrister action if they press on with this scheme tonight, with walkouts and returns not being done, which would send our courts into chaos. The Government have failed, as people in our justice system are being affected. Whatever one makes of it, the Government’s approach has not created consensus; it has created a backlash. When they are in a hole, the Government should stop digging.

    The Criminal Bar Association has made a formal request for the Ministry of Justice to delay, withdraw, amend or reconsider the implementation of this statutory instrument. The Government should listen to the CBA, not deny that there is a problem. They should put the new scheme on hold and set about fixing it. To do that, they should do the right thing in tonight’s vote. I commend the motion to the House.

  • I congratulate the hon. Member for Leeds East (Richard Burgon) on securing this debate, which relates to the value of the independent Bar. It is therefore important for me, as a former barrister: I understand very clearly the role that advocates play in justice. The work done by the criminal Bar, day in, day out, up and down the country, is a fundamental part of our justice system. It is criminal barristers, criminal advocates, who ensure that people, often at the most desperate time of their lives, get the opportunity to have their points put coherently and effectively, when their futures are on the line, ensuring justice. I start by acknowledging and thanking criminal barristers for the hard work that they do.

    The Lord Chancellor and I have heard many concerns about the wider justice system in the short four months since we took office. We take those concerns very seriously and we are committed to ensuring that there is an efficient and effective support for those who go through our court system. We want people to have every confidence in every part of their justice system. We want a system that supports victims and ensures a smooth and efficient process for litigants, and a legal profession that is enticing at every level for those who want to work within it.

    Those are all important points, but the hon. Member for Leeds East has prayed against a statutory instrument. In the interests of advocates affected by that instrument, we should now focus on the issues that it raises. It is appropriate to start with four clear facts. First, this scheme was put together in close co-operation with the Bar leadership. Secondly, the scheme does not bring in a cut; at the very least, it is cost neutral, but it is more likely to give rise to an increase in expenditure, given that built into the calculations is a £9 million risk of such an increase. Thirdly, the scheme is more advantageous to the Bar overall than the one it replaces, particularly for those at the junior end. Fourthly, a clear commitment was given at the time the scheme came in that the Government would review it in 18 to 24 months. If, in the course of that review, legitimate concerns are raised about the system and a good case is made for investment, we will look at those proposals.

  • I am very happy to give way.

  • I thank the Minister. If she believes that her Government’s changes to legal aid have not been damaging to the profession, will she explain why there is not one single criminal law solicitor aged under 35 in Suffolk—or indeed in Norfolk, Cornwall or Worcestershire?

  • Like the hon. Member for Leeds East, the hon. Gentleman raises a broad point about the justice system which I will come on to. On his specific point, it is of course important to have duty solicitors across the country doing legal aid. The Legal Aid Agency regularly reviews the geographical spread of the profession.

    This is a debate about a statutory instrument and it is very important, for the advocates affected by it, that we focus on it. I would now like to expand on the four points I made.

  • I think everyone would acknowledge that to go out and do the job of a criminal barrister is incredibly demanding, and that the profession faces challenges of various sorts. On the negotiations on the advocates’ graduated fee scheme, great efforts were made to involve the Bar at every stage. The Legal Aid Agency put a huge amount of work into the talks, as did the Ministry of Justice. The intention was to find a better way of paying barristers, not to do anyone down. Does the Minister agree that the response to the consultation document, which was so positive, seems to have evaporated for some reason?

  • My right hon. and learned Friend, who was a Minister at an early stage in this process, makes a very important point. The scheme we are debating today came about because both the Bar and the Government accepted that the old scheme was outdated. Advocates told us that it did not reflect the amount of time and effort they put into their cases. For example, under the old scheme there were no separate fees for the second day of a trial and there were no fees for a sentence hearing. The new scheme is the result of a two-year exercise involving the leadership of the Bar—the Bar Council—the Criminal Bar Association and the circuit leaders. When the scheme was put forward in a consultation in 2017 it was widely welcomed by those organisations.

  • I am not a lawyer, so it may be that I am looking at this issue in a very simplistic way. It seems that my hon. and learned Friend is saying that the professionals said that the old regime was broken, yet the Opposition seem to be arguing that they want to go back to that old regime. Can my hon. and learned Friend enlighten me on why the Opposition are opposing modernising the system?

  • My hon. Friend makes an extremely important point, which is at the very heart of this debate. The old system is not supported by the Bar. It did not want that system. The new scheme is an improvement, so the answer to my hon. Friend’s question is that the Labour party is simply playing politics with an honourable and important profession.

  • As the Minister knows, there is a continuing funding crisis at the Bar. The reality is that at some point the Government are going to have to face up to the very great difficulties facing the justice system. That is not the fault of my right hon. Friend the Lord Chancellor; it is the situation he inherited. I have to say that I am in complete sympathy with the stance that my hon. and learned Friend is taking this evening. The scheme was wanted by the Bar and it is clearly an improvement on the previous system. Granted there are very great difficulties with funds, but it seems entirely reasonable for the Government to proceed with it.

  • I thank my right hon. and learned Friend for his intervention and recognition that this scheme was wanted. I hope I have conveyed that the Lord Chancellor and I recognise that where there are difficulties in the criminal justice system we will seek to ensure that we have the best possible criminal justice system and legal system. The scheme, which we are voting on today, is the right scheme going forward. The proposal that it should be revoked and annulled is disadvantageous to the Bar and is simply politics.

  • Why then does the Minister think the barristers are taking action?

  • The hon. Gentleman will have to ask the barristers why they are taking action, because the new scheme is more favourable.

    The consultation was broadly welcomed by the organisations I mentioned earlier. I would like to provide just one quote among many. When the consultation was put forward in 2017, the then chair of the Bar Council said:

    “The suggested scheme is a fairer way of rewarding advocates for their work”,

    and that it is a

    “a positive example of the Ministry of Justice participating in constructive dialogue with the profession”.

    As with any consultation, suggestions were made to improve the scheme. It was said, for example, that it was not right that the initial scheme proposed was to be cost-neutral as against 2014-15. Concerns were also raised that it may have an adverse impact on junior advocates. The Ministry of Justice listened to those concerns and increased the amount in the scheme in line with the costs at the time, which increased the funding by £9 million. This allowed it to improve the scheme for junior advocates. The MOJ also assesses that the scheme will cost significantly more—approximately £9 million more—than anticipated.

    The new scheme in this statutory instrument is better than the one it replaces. With this motion, which calls for the new scheme to be revoked, the hon. Member for Leeds East is disadvantaging those he professes to support. He says that it is a threat to our justice system, but the motion is playing politics. It puts party politics above supporting the right outcome. With the motion, the Labour party and those who intend to join them today are using the Bar and justice as a political tool for their own ends.

  • Minister, that is a silly thing to say, because the motion reflects the disquiet that has been expressed by the Bar. The hon. and learned Lady does not have the curiosity to ask barristers why they are unhappy; perhaps one reason is that the scheme was an alternative to a further 8.5% cut, which would have caused mayhem in the criminal courts. It is just robbing Peter to pay Paul. Why does she not go back and ask the Bar who the losers are now, what the problems are and how they could be reformed, and why does she not take this away and look at it again?

  • I am sorry if I misrepresented the position earlier. I have spoken regularly to a number of organisations that represent the leadership of the Bar. Over the last week, my Department has gone to chambers up and down this country. We have talked to them to understand their concerns about the scheme and to try to understand what position they prefer. We are extremely engaged in talking. The point I am making is that the new scheme is a better one. It was supported by the circuit leaders, the Criminal Bar Association, the Bar Council and the Young Barristers’ Committee, and about 15 press releases all support that position.

  • I am very pleased to see my hon. and learned Friend in her place, with her knowledge and background. I will, of course, support the Government tonight, because I agree that this motion is playing politics with an issue, but I have a concern, which I have raised with her before. Following on from the comments of my right hon. and learned Friend the Member for Beaconsfield (Mr Grieve), I hope that after this the Government will address one of the problems that they face with the junior Bar, particularly here in London. I know, because my son is one of them, and he would tell us that those we want to encourage to come to the Bar, who would diversify the Bar, cannot afford to do so. This is a big crisis for us, otherwise we will end up yet again with a narrow Bar. I wonder whether the Minister might urge her colleagues and hon. Friends to think about that, because it is those who will come through to be the judges of the future.

  • My right hon. Friend makes a really important point about recruitment at the Bar. The Ministry of Justice is of course concerned about this issue, but it is not just a problem for the MOJ. When I went to the Bar, Bar fees for the course were £5,000, and they are now £15,000. Asking people to pay that sort of money is a barrier to access when the chances of their getting a pupillage and a tenancy are limited.

    I will highlight three points to show why asking to revoke the scheme, as the shadow Secretary of State is asking, disadvantages the Bar. First, he is saying by doing so that he does not want the additional funds that the new scheme is likely to produce, as against the old scheme. Secondly, he is asking junior barristers to go to sentence and other hearings for no fees. Thirdly, he is asking to retain a scheme that calculates fees on the basis of page count, which is wholly outdated.

    As I suggested, it was right to focus on the statutory instrument, but it would be wrong not to correct some of the many inaccuracies and misrepresentations in the hon. Gentleman’s speech, which focused on broader issues. He made several comments about disclosure without even mentioning either that the Attorney General’s review is due to report this summer or the national disclosure improvement announced by the CPS and the National Police Chiefs Council on 26 January. He talked about recruitment and failed to mention my points about fees. He said that recruitment was falling—there is anecdotal evidence for that—but failed to mention that the number of pupillages at the Bar went up in 2016-17 to its highest level since 2013. Very importantly, it is good to note that there were more women than men in 2016-17. In fact, the total number of barristers at the Bar now in practice stands at 16,435 and is incrementally increasing year on year.

    The hon. Gentleman sought very quickly to broaden out the debate by talking about cuts, but he failed to identify why the coalition Government had to make the cuts they did across the board after 2010. It was because the Labour Government overspent and increased our debt and deficit. A few weeks ago, I went to a school in my constituency to explain how Governments spend their money. I identified the different Departments of State, and we looked at the proportion of spending for each. If interest was a Department of State, it would be our fourth-biggest in terms of expenditure, and that is because of the unreasonable and irresponsible decisions taken when Labour was in office.

    The hon. Gentleman also talked about court closures. When 41% of courts and tribunals used less than half their available hearing capacity in 2016-17, it would be wrong not to look at our court estate. All the money from the sales is reinvested into the court estate, into our court buildings and court structure, and into technology, and that is alongside our billion-pound reform of the court process. I know that he is in favour of strikes of any kind, whether they are legal or illegal and whether or not they disadvantage ordinary members of society. I know that he favours disruption, demonstration and discontent over careful, constructive and collaborative processes, but the Conservative party believes in justice and that those who need representation should be entitled to it. We will continue to work with the profession to help them to protect the rule of law and the vulnerable people who come through our courts.

  • Order. With so many Members wanting to speak, I suggest that each Member aims to speak for about six minutes.

  • The fundamental principles of justice and the right to a fair trial have been enshrined in the English law since as far back as Magna Carta, and despite all the many different threats to the right to a fair trial since its signing in 1215, the biggest threat facing our country’s legal system is right here, right now, today. The constant chipping away at, and the catastrophic underfunding of, criminal legal aid has led to a broken justice system perilously close to collapse. Two years ago, the Public Accounts Committee stated that the criminal justice system was at breaking point. The Government have failed to heed those warnings, and we now have a situation whereby it is only through the extraordinary good will and willingness to go the extra mile of prosecutors and defence barristers that justice can be done.

    I had an email on Sunday from one of my constituents who is a pupil barrister specialising in criminal law in her second six months of training. She told me that she had already been prosecuting cases, had had experience of being handed papers to prosecute a case at court on the day, had seen cases adjourned because of disclosure failures, and that this was not uncommon. She went on:

    “I’m afraid that I won’t be able to earn enough to support myself, let alone enough to buy a home, start a family, retire with a decent pension. I hope I’ll be able to justify staying in this profession, which is so hard but which I already love so much, and which I’ve invested so much work and money in joining. I don’t need riches, but I need to be able to live, and my future clients will need me to be able to dedicate the time their cases require and deserve. I need to know I will be paid for my work, or I just won’t be able to do it. And where will we be if a thousand people in my position come to that conclusion, and there is no one to replace us?”

    That is the point. Where will we be if we stop being able to attract people to practise criminal law? How many miscarriages of justice can we expect for defendants and victims as disclosures are made late, documents are not properly read, and defendants cease to be properly represented? With more cuts planned in the Ministry of Justice, it is clear that this is a targeted assault on the criminal justice system, and that the Government have a flagrant disregard for the future of criminal justice.

    The advocates’ graduated fee scheme is the means by which the Government hope to reap some of those cuts. AGFS spending has fallen by 40% since 2010, and given that the new scheme proposed in the regulations is meant to be cost-neutral, this is surely just a case of rearranging the deckchairs on the Titanic. The fact that the views of the Criminal Bar Association have not been listened to also leads me to conclude that the scheme is a sham, and exists purely to deliver cuts for the Government.

    There are so many absurdities in the current AGFS system that one would think it had been devised in an “Alice in Wonderland” environment. Why—this question was asked by my hon. Friend the Member for Leeds East (Richard Burgon)—is an advocate who deals with a case involving 250 pages of evidence paid the same as an advocate who deals with one involving 5,000 pages? Why is someone handling a rape case with one defendant and one complainant paid the same as someone else handling a case involving multiple victims and multiple complainants? Why is there no recognition of the additional work involved in dealing with vulnerable witnesses, children or people with mental health conditions? Is a standard appearance fee of £90 really acceptable when the cost of catching a train to the court is significantly more? Is a fee of £125 for a sentencing acceptable? Why have fees not gone up since 2007? The Minister and others have claimed that this scheme is an improvement on the previous one, but an improvement on a terrible, failing scheme which makes it into a bad one is, for criminal barristers, no improvement at all.

    The impact of the cuts in criminal legal aid will be felt for many years to come, as barristers and solicitors leave criminal justice in their droves. Why would anyone stay in a profession that is incredibly stressful when the pay is barely enough to survive on? Research conducted by Young Legal Aid Lawyers—lawyers with up to 10 years’ experience—revealed that 30% of respondents earned less than £20,000 and 83% earned less than £35,000. Throw into the mix tuition fees for undergraduates and the Bar Professional Training Course, which could leave them with debts of £50,000 or more, and we have a very unappealing set of factors that will repel applicants rather than attract them.

    We are approaching a tipping point which, if not addressed, could have disastrous effects on the number of practitioners working in criminal law, and could also have an effect on the quality of the legal advice that people receive. We can forget any diversity or social mobility targets, because unless criminal legal aid is properly funded, only those who are able to afford to support themselves will enter the profession. That threatens the very right to a fair trial, which takes me back to where I started. Unless criminal legal aid is properly funded, which means tearing up the AGFS and starting again, this will sound the death knell for those practising criminal law. I say to the Minister, “You cannot do justice on the cheap.”

  • It is a pleasure to follow my Justice Committee colleague, the hon. Member for Enfield, Southgate (Bambos Charalambous).

    It is important that we are having this debate. I refer Members to my declarations in the Register of Members’ Financial Interests, and to the fact that I have the honour to chair the Justice Committee. During the last Parliament and the one before it, the Committee considered a number of issues affecting remuneration of the Bar and the way in which we operate our criminal justice system, as well as broader issues, and we heard a great deal of evidence. There is no doubt that the debate touches on very serious issues to which there are no easy answers, but it is also a specific debate about a specific statutory instrument. I will therefore do my best, in the time available, to confine myself to its specifics, but I think it right to give a little of the context.

    I speak as someone who practised for 25 years at the criminal Bar, who regards it as one of the finest things someone can do, who has friends still in practice at the Bar, and who is conscious of the hours that are worked and the things that are thrown at people at the last minute, that it is a demanding profession and is not well rewarded—and, arguably, is not rewarded as well as it should be in the circumstances. But we should take a step back from that, because some of the things we are talking about have, I regret to say, always been there. The last minute brief was a feature of my very early days in practice and continued all the way through it, and the large quantities of unused material that people were never paid for reading have also always been a feature of the scheme.

    I do think, however, that we should perhaps look at future designs of the scheme now, because of the issues we have found around disclosure, which is ever more important and has grown with the use of digital and online material. We need to look again at whether it is reasonable not to fund people for reviewing the disclosure in these cases. I am conscious of that because I prosecuted a case which we rightly abandoned upon its second appeal when disclosure that should have been made was finally—some years too late, I am afraid, for the person serving the sentence—made to us. So we do need to take that seriously, but, again, it is not a part of the debate on this statutory instrument. That system has always been there, and revoking this statutory instrument will not solve the issue of payment for people dealing properly with disclosure, nor will it solve the issues of the late return or the late nights that we have always been used to. Those are broader matters.

    It is also worth observing that the pressure on incomes at the criminal Bar, which I accept has been real and not made easy by extraneous factors such as the cost of training, has not occurred only under this Government or the coalition. The hon. Member for Enfield, Southgate referred to there being no increase in fees since 2007, but, going back further, the squeeze at the Bar started under the Blair Government, from 1997 onwards, so the idea that this has been placed upon the Bar by the current Government is not fair and is not based on the evidence.

    It is clear that the Bar now has issues with the scheme. I am deeply saddened that colleagues and friends feel unable to accept work under the scheme. Is it perfect? No, I am sure it is not. Would it be better if more money could be found? Yes, I am sure that it would be. Is revoking the instrument going to solve that? No, I do not think it will. We need a much broader and maturely based debate about that.

    I particularly take note of the intervention of my right hon. and learned Friend the Member for North East Hertfordshire (Sir Oliver Heald), who was the Minister at the time and whom I have known since my earliest days at the Bar. I know he is an honest and trustworthy man and when he says that there was a real and genuine attempt to engage the professions in this, I know he is telling the truth. It is also worth bearing in mind that the best evidence is sometimes what is said at the time, and we have a number of quotations from that time that show very clearly that all the representative bodies at the Bar gave a broadly favourable welcome, on the basis that it was not perfect—they did not pretend it was—but it was an improvement on what was there.

    The chairs and membership of the Bar Council, the Criminal Bar Association and other representative bodies change annually. They cannot bind their successors and attitudes change, and I am not going to speculate on that. However, it is unfair to say that this was brought in by the Government against a backdrop of universal hostility, because that is not the case; broadly, a fair wind was given to it at the time. Issues have perhaps blown up subsequently, however, and many of us who keep in touch and follow this matter closely might suggest that the real problems are not purely around this statutory instrument, but that broader issues need to be addressed.

    The most important things we need to do now do not include talking about the revocation of a scheme that could be improved. Instead, we must make the case for more funding for the criminal Bar. My right hon. Friend the Member for Chingford and Woodford Green (Mr Duncan Smith) talks powerfully about his own experience, and friends and children of mine suffer exactly the same difficulty. It is a lot harder to start at the junior criminal Bar now than it was in my day, and that is not a healthy situation. We need a stream of bright, talented and dedicated young people coming through, and this issue deserves a longer and broader debate, in terms of both time and context, than the narrow one we are having now.

  • Does my hon. Friend agree that the justice system stands or falls together, and that far from being broken, it is one of the finest justice systems in the world? It is worth £25 billion a year, and we need to ensure that all levels of the Bar, and our solicitor advocates, are supported in the work that they do.

  • My hon. Friend is absolutely right. There are pressures and difficulties, and some areas of the system creak, but talking it down does no justice to anyone. At the end of the day, it is an immensely better system than anything else we have on offer. If we want to look at really badly funded systems, we can look across the Atlantic and to other places, which would horrify all of us. We are not in that situation, and I do not want to get into that situation, but we will only ever go forward if we can make a measured case for why, for example, it is cost-effective to have representation because litigants in person actually burn up more time and cost than if they were properly represented, and the trials take longer. Let us make the business case around that. That will not be done, however, by revoking this instrument or by people not accepting instructions—however great the temptation—and people going unrepresented. I hope that the Bar and the solicitors will feel able to get back round the table with the Ministry of Justice.

    I was concerned to hear the powerful evidence given to the Justice Committee recently by the Criminal Law Solicitors Association. It was suggested that a duty solicitor was probably less well remunerated than a teacher with comparable experience. In a competitive world, that does not seem entirely fair. They are both demanding jobs, and we need to find a constructive way forward rather than walking away from these matters.

  • I have had contact with five junior criminal law barristers, and not one of them earns more than £21,000 a year. That means that after they have paid tax and expenses, they have to live on about 10 grand a year, in London.

  • My hon. Friend makes an important point; it was in fact the last point I was going to make. If we are to win this debate on fairer funding, we need to get back to a more honest awareness of the realities of remuneration. The press have something to answer for in that regard. It is all too easy to talk about fat-cat barristers and the occasional £1 million-plus fee, which usually relates to a case that lasted about 18 months and was of a highly complex nature. Those sorts of cases are not around any more, for a raft of reasons, and those reports wholly misrepresent the position of the vast majority of barristers, who are working on really modest take-home incomes. Above all, we forget the level of deductions that have to be taken out. My hon. Friend’s point is an entirely fair one. I want to see more money in the system, but that will only come from having a strong and well-managed economy. I want to see more money in the system, but I do not think that this is the right way to go about it.

  • The Chairman of the Select Committee is making a very good case, but he does not seem to be persuaded by his own advocacy. If this scheme corrects some of the anomalies of the previous scheme, it does so only by reducing the brief fees overall to below a level that was already extremely low. The purpose of annulling the statutory instrument is to make the Government go back and renegotiate on that basis. Does the hon. Gentleman not accept the logic of that?

  • I do not accept that logic, persuasive though it might be, because annulling the SI would simply put us back on to the old scheme. I would prefer to bank what we have—imperfect though it is—and move on, pressing the Government to move more swiftly than Ministers currently intend to do on the review of the scheme, and starting to talk urgently, at the earliest possible date, with the Bar Council and the Law Society about what could be changed. I want improvements as much as Opposition Members do, but I happen to think that taking an unduly partisan approach does not serve the overall purpose of the matter.

    An independent Bar, and an independent and robust solicitors profession, are a critical part of the rule of law. That is what it comes down to, and I do not accept that this is necessarily a welfare state issue, although I understand the point that the hon. Member for Leeds East (Richard Burgon) made. Ultimately, this is about ensuring the rule of law. That is the most important thing, and the system does have to be properly funded. I say with some regret to Opposition Members that, although I have sympathy with many of the points made by the Bar and the solicitors in their evidence to us, annulling this SI is not the right route to go down. I would prefer a more consensual, evidence-based approach, and a calmer one. I hope that once this debate has passed, we will all be able to get down to that.

  • I declare any interests that I may have as a non-practising solicitor. The criminal justice system in England and Wales faces many significant and structural problems, but placing all the blame on the regulations and tacking the Criminal Bar’s reaction to them at face value will not solve the underlying problems with which we need to contend. Having said that, my initial reaction to the current SI proposals was that, given the barristers’ strike and Opposition party protest in relation to alleged criminal legal aid cuts, I was somewhat surprised to read the impact assessment, which suggests no cuts and an increase spend on legal aid. That aside, the plans are, in themselves, positive and rational. The Minister has given a strong defence of them today, and they shall have my support.

    We are tweaking a scheme that was put in place by Labour in 2007. Since then, effective case management has become rightly more of a priority. I can understand the desirability of unbundling the tasks in fee assessment and the key need to address huge increases in the amount of data now available through discovery. The Opposition and the hon. Member for Leeds East (Richard Burgon) are protesting too much. Labour in government repeatedly proposed reform of criminal legal aid and then repeatedly pulled back, instead resorting to fee cuts.

  • Does my hon. Friend agree that the Labour party does not come to this matter with clean hands? In 2007, at a time of rising budgets for health and education, there was never more money for the Bar, even though it needed it. The Opposition’s remarks do not hold up.

  • My hon. Friend is quite right. In fact, many, if not most, of the post-2010 coalition criminal legal aid cuts had been put in place by the losing Labour Administration. Furthermore, during debates on the Legal Aid, Sentencing and Punishment of Offenders Act 2012, I recall the Labour spokesman saying that we should make required cuts to criminal legal aid, rather than to civil legal aid. Having engaged in the blame game, we could all just leave it at that, but that would be to once again avoid the harsh reality that we all now need to face up to, namely that this country’s criminal legal aid system is not fit for purpose and needs to be totally restructured.

    While consultation with legal practitioners is important, we legislators need to be reminded that no significant reform to the legal professions has ever come about from the practitioners themselves. Someone in government, or indeed in opposition, is going to have to make a move on this. I will admit that the previous Labour Government made some useful justice reforms, much of which I had the honour to oppose from the Front Bench and on which we often worked co-operatively. Why are the Opposition not doing the same on criminal legal aid? Rather than just complain about it, why can they not offer an alternative? The hon. Member for Leeds East told us what the Criminal Bar Association wants, but he did not say what he wants or what he believes, and I think he should.

    The fundamental problem is that the legal market generally, and criminal law in particular, is totally fragmented, under-capitalised, technologically semi-illiterate and structurally redundant. Criminal practice is characterised by large numbers of barely profitable firms that are all too often unable to properly serve clients through lack of manpower, inability to invest in training of staff and trainees, and a lamentable lack of technology. I recall trying to persuade criminal defence solicitors to take prosecution evidence online rather than in paper bundles, but the resistance was ferocious. Why? Because large numbers of solicitors were running their small practices from their homes and could not afford to invest in the required technology. That type of inefficiency also goes to the Bar, with advocates often getting court papers late, which may have worked for the single lever arch file deposited in times gone by, but with not the online data dump that can now be sent. As has been said this evening, young barristers will often effectively work for nothing, which itself is a barrier to diversity and to poorer people entering the profession. I could go on with such examples at length, but hon. Members will get the picture.

    The answer to this situation, without any doubt, will involve consolidation of this fractured nineteenth-century legal services marketplace. Although the number of small firms has slowly reduced in recent times, the most practical way to aid the process would be a larger-scale system of contracting for legal aid work. That would involve fewer but larger practices operating over a larger area, resulting in fewer firms receiving a larger slice of the remaining pie on a single-fee basis. In turn, it would create firms that have the money to invest in training and technology, and with the size and depth required properly to cover the contract areas.

    Yes, we have more data than ever before, but charging to read it on a per page basis is simply outdated. Most of the extra data is useless guff from, say, social media. The answer is to have firms of lawyers that are able to invest in the technology now available to sort the wheat from the chaff. That will only come from market consolidation, and a vital aspect of that will be to treat barristers and solicitor equally. If teams of barristers wish to compete for legal aid contracts, they should be free to do so, in the same way as sole-practitioner solicitors band together with other solicitors, or indeed with barristers, to bid for contracts.

    The Legal Services Act 2007, brought in by the last Labour Government with Conservative support, provides the necessary mechanism—the alternative business structures—for that to happen. Solicitors and barristers could work together, and the alternative business structures could raise capital and employ non-legal executive managers to run an effective business. We would then start to see a sustainable market taking shape.

    I have some sympathy with those who complain that the criminal justice system is creaking at the seams, but rather less sympathy with those who say that the answer is more of the same. We need to face up to the need to change the rules of the game and of the marketplace. The tools and answers are certainly out there if we are prepared to take the required steps.

  • As a non-lawyer, I will start by looking at the justice system as a whole. In doing so, I see that the courts need to become online courts—I have discussed that with Lord Briggs and have seen how it is developing. I see the Ministry of Justice bringing forward online divorces, which is an interesting proposal. I also see £1 billion being put into court reform and modernisation, which will improve working conditions for those in court and speed up many paper-based activities. Finally, I see modernising reforms in other areas, such as the Crown court digital case system, to encourage electronic evidence.

    Those reforms create a simpler, fairer and more modern payment scheme for all advocates. As has been described, it replaces an archaic system, under which barristers billed by pages of evidence, regardless of the level of complexity or the work involved. This is not a cut to barristers’ fees. In fact, the Ministry of Justice estimates that around two thirds of advocates would have benefited from the new schemes had they been in place in 2016-17.

    The Minister has said that she has listened carefully to the views of respondents, particularly the concerns raised in relation to junior advocates in the solicitor and barrister professions alike, and that the rebalancing she has done has been to everyone’s advantage. I do not think this statutory instrument should be revoked, and I am happy to support the Government on this.

  • When it comes to the opposition to the changes to the graduated fee scheme, the Government are entitled to feel a little perplexed because the changes were discussed with the leadership of the Bar. Francis Fitzgibbon, QC, then chair of the CBA, said that

    “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.”

    Secondly, the aim of the changes, to rebalance public funding so it rewards the junior Bar more fairly, is unassailable. On that point, I will support the Government tonight.

    It would be a great mistake to misread the message coming from the Bar, because my clear sense is that its protest is not really about the intricacies of these specific provisions. Instead, it reflects years of pent-up anguish and frustration about the state of the criminal defence profession and, indeed, a profound sense of foreboding for its future.

    The Bar is in a fragile state and needs decisive support, but it does not lie in the mouth of the Labour Opposition to make criticisms about on that, because I know full well from having been a practitioner at the time that, at a time of rising budgets across the piece in health and education during the late 1990s and in the first decade of the 21st century, Labour failed time after time to put more money into the Bar. In 2003, Tony Blair spoke of the “gravy train” of legal aid. In 2006, Lord Falconer referred to the legal aid bill as being “unsustainable”, and there were further plans to cut it in 2010. One has to consider those remarks with great care.

    I wish to make some brief observations in the time available; I wanted to say a lot more but I shall confine myself to this. When considering the amount we spend on justice and legal aid, we should put it in context. Treasury Red Book figures show that total public sector spending for 2018-19 is expected to be £809 billion. The total Ministry of Justice budget is less than £7 billion. To put that in context, more is spent on welfare and pensions in two weeks than is spent on justice, and the amount spent on international aid—about £14 billion—is approximately double the entire justice budget. To put it another way, we spend more on the aid effort in Syria alone than we do on the entire legal aid budget in our country.

    There are concerns about where this all heads. There will be difficulties with recruitment and retention, and we cannot have a situation where this is a just a job for posh kids with a private income. There is also a risk of injustice. If people are not available to do the work we require them to do, it will not just be a case of people being convicted when they should not be; there is a danger of people not being convicted if juries take matters into their own hands and decide that they want to deliver their own brand of justice.

    I am not suggesting this is easy at all, but I want to make three simple points. First, if the criminal Bar falls over, the cost to the state will increase dramatically. The overheads involved in employing hundreds of barristers in a fully fledged public defender service will be extortionate and unaffordable. Secondly, the culture will change, and people will be far less likely to work after-hours and at the weekend. Thirdly, the sums of money required to secure the criminal Bar are modest. Barristers are not seeking wealth; they are seeking viability.

  • My hon. Friend is absolutely right on that last point about the motivation of barristers. Does he agree that one of the important qualities that the independent Bar brings, as indeed does an objective solicitor, is precisely that word—objectivity? The objectivity brought by a barrister has been seen in many cases, for example, those where disclosure failures have occurred, and in the willingness to root out what is absolutely necessary, fearlessly, on behalf of a client. That cannot be replicated.

  • That objectivity is vital. In the United States, they have dyed-in-the-wool prosecutors. I remember the case of Michael Jackson, with Tom “Mad Dog” Sneddon; all these people do is prosecute. One great value we have in this country is that people prosecute and defend. That level of objectivity is fantastic. It also means that people are incentivised to go the extra mile, because you are only as good as your last brief.

    The criminal Bar is precious. This is not about sentiment. This is a flinty-eyed assessment of a real and pressing need. Once this matter is over tonight—I will vote with the Government, because the Opposition’s proposal is, with respect, misconceived—I urge the Government to look again at how the criminal Bar can be supported, as there is a pressing need.

  • We cannot have those with the ability and will to try to enter the criminal law profession impoverished by debt and a lack of basic resources to live, especially those who come from perhaps a more humble background. The new scheme seems to distribute some money from middle or senior junior barristers to the more junior barristers, but I gather the effect on senior junior barristers could be a fall in income of as much as 35%, but the impact on the most junior criminal barristers is simply not very much. The truth is that the system does need more money, which cannot be found simply by switching around payments within it. Criminal barristers are self-employed and they must also meet the unavoidable overheads of practising, which normally range from about 25% to 35% of their income. There is no entitlement to pensions, holiday pay, sick pay or, indeed, maternity or paternity pay. Assuming a junior criminal barrister earned a total of, say, £60,000 annually, after they paid overheads and pension contributions and compensated for holidays, he or she would probably present an income of only around £30,000 to Her Majesty’s Revenue and Customs.

    A career at the Bar is insecure and financially uncertain: trials can be moved by judges without consultation; witnesses can be taken ill; defendants may accept advice to plead guilty; and charges may be dropped. All can have a significant impact on barristers’ income, without warning. In such an uncertain climate, reasonable fees are necessary. The level of debt with which new criminal law barristers must deal, insufficient fees and increased demands make a social and family life almost impossible. I understand that right now morale is low and dismay universal among junior criminal barrister and, indeed, among some senior junior barristers, too. I very much hope that the Minister can tell me honestly that junior criminal law barristers will have a much better deal than they had in the past.

    Question put.

    The House proceeded to a Division.

  • I ask the Sergeant at Arms to investigate the delay in the No Lobby.

  • Division 151

    8 May 2018

    divided:

    Ayes: 252
    Noes: 300

    Question accordingly negatived.

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