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Criminal Legal Aid Independent Review Consultation: Government Response

Volume 723: debated on Wednesday 30 November 2022

Today I am publishing the Government’s full response to the criminal legal aid independent review (CLAIR).

First, I would like to thank Lord Bellamy KC for his independent review of criminal legal aid and its recommendations. In March 2022, in response to Lord Bellamy’s independent review, we consulted on proposals that would mark the most significant reform to criminal legal aid in more than a decade, and would include an additional investment of around £135 million per year.

We set out our immediate fee reforms in the interim response which was published on 20 July 2022. In this interim response, we committed to increase most fees by 15% and this came into force on 30 September 2022. We also extended the scope of payment for pre-charge engagement work to cover work done ahead of an agreement, or where an agreement is not reached, in appropriate cases, in line with the Attorney General’s disclosure guidelines.

Following further discussions with stakeholders, we were also able to lay a statutory instrument in October 2022 to apply the 15% increase to cases that already had a representation order granted on or after 17 September 2020 but had not yet had a main hearing—with further reforms, including to remuneration for section 28 cases, to come.

In this full consultation response, published today, we set out our plans for longer term systemic change. The full consultation covers the 203 responses received to 106 consultation questions. We have been working hard to analyse the responses of all stakeholders to ensure our decisions are rooted in evidence. We are committing to an increased investment of £138 million per year in total. This means that an extra £85 million for solicitors and £43 million for the Bar in legal aid payments, as well as an additional £11 million on expert fees, will eventually be spent every year to ensure long-term sustainability. Included in the full consultation response are details of the newly established Criminal Legal Aid Advisory Board (CLAAB), which brings together criminal justice system partners to discuss the operation of the criminal legal aid system and make recommendations to the Lord Chancellor. The board met for the first time at the end of October 2022 and will continue to meet quarterly.

We have listened to consultation respondents and we propose reallocating money originally set aside to expand the Public Defender Service, to introduce training grants and for further reform of the litigators’ graduated fee scheme (LGFS). Instead, we are proposing structural reforms to police station fees and intend to consult further on a standard police station fee model, allocating £16 million to harmonising the fee scheme. This means that, when considered with the funding uplift that came into effect on 30 September, funding for the vital work undertaken by solicitors in the police station will increase by 30%. We are also continuing to look at how we can improve the uptake of legal advice in custody, in particular for children.

We do not consider that structural reform of the magistrates’ court fee scheme beyond the 15% fee increase already implemented is necessary, and this is supported by consultation responses. However, on top of this uplift, we will allocate an additional £5 million towards youth court reform from the 2024-25 financial year, which is expected to particularly benefit both solicitors and some junior barristers, as well as children.

My Department will model and consult on a revised LGFS scheme based on current data with a view to rely less heavily on pages of prosecution evidence (PPE) and instead focus more on fixed basic fees for each offence type.

As we set out in October 2022, over the remainder of this spending review period, an additional £3 million of funding will be made available for case preparation like written work and special preparation, as well as a further £4 million for defence barristers involved in pre-recorded cross-examinations, which are used to reduce the trauma of a trial for vulnerable victims and witnesses, by early 2023.

Our full consultation response also covers very high cost cases (VHCCs) and interim fixed fee offers (IFFOs) as well as fees for prison law and Criminal Cases Review Commission (CCRC) work. Further proposals will be developed after consultation on how to revise the IFFO fee calculator.

Taken together, the reforms we have announced in the Government’s interim and full consultation responses will enable us to support a sustainable, diverse and stable criminal justice system in the long term. They will ensure that legal professionals are supported and remunerated fairly, in a way that reflects the development and changes that have occurred in our justice system since the initial conception of the fee schemes. Most importantly, they will ultimately benefit victims and everyone relying on the criminal justice system.

Continuing to engage the criminal defence sector, including the Bar Council and Law Society, remains important as we develop our final policies. I look forward to continuing our constructive work with criminal legal aid practitioners on criminal justice issues.