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Criminal Legal Aid Proposals

Volume 710: debated on Tuesday 15 March 2022

The pandemic has been exceptionally challenging for our justice system. We owe our whole legal profession—solicitors, barristers, chartered institute executives, and judiciary and court staff—a debt of gratitude for keeping the wheels of justice turning over the last two years.

Thanks to their immense efforts, we are making progress in tackling the court backlog, and getting back to a more normal way of working—in the interests of victims, witnesses and the wider public.

As Parliamentary Under-Secretary of State for Justice, I am committed to making sure our world-class justice system is put on a stable footing for the future, for the benefit of victims, defendants and the whole of society, which is why I am today announcing the launch of the Government’s response to the Criminal Legal Aid Independent Review (CLAIR) and the means test review consultation for both criminal and civil legal aid.

I would like to thank Sir Christopher Bellamy for his thorough, invaluable report—along with his panel of experts, and everyone who contributed their views as well as all of those who contributed to the means test review.

These two consultations address the recommendations made by Sir Christopher Bellamy and his advisory panel and the review of the legal aid means test launched in 2019. The Government’s response to CLAIR reflects the whole system approach taken in that review.

My proposals include an uplift of almost all criminal legal aid fees for criminal defence practitioners by 15% as soon as possible. This would inject an additional £115 million p.a. at steady state. A further £20 million p.a. is being held for other proposals including:

a reformed litigators graduated fee scheme which pays solicitors in the Crown court,

investment in work in the youth court, and

grants for training contracts and for solicitor advocates to gain rights of audience in the Crown court to support the sustainability and development of solicitors’ practice.

These proposals bring the total investment to £135 million p.a. at steady state, in line with Sir Christopher’s recommendations.

With the Government’s additional funding to support court recovery, this will take taxpayer funding of criminal legal aid to £1.2 billion p.a., the highest level in a decade.

And, in the short term, our proposed cash injection will give a 15% boost to fees for police station work, magistrates court work, the work of advocates in the Crown court, most of the work of litigators in the Crown court, solicitors in very high cost cases, and some smaller schemes.

CLAIR made a number of recommendations non-fee recommendations about the future of criminal legal aid, and in line with these we are also making proposals including:

to reform fee schemes, so they reflect the way our legal professions work including increased work outside of trials and new practice like pre-recorded evidence;

to explore new ways of delivering remote legal advice in police stations;

to work with the professions and regulators on how, together, we can promote greater diversity across the system—opening up a career in law to anyone with the talent to succeed, regardless of their background;

to establish an advisory board bring together information and real experience from the front line to inform Ministers’ decision making on legal aid policy;

to remove barriers to the work of members of the Chartered Institute of Legal Executives who do not enter the profession through traditional routes; and,

to support training contracts for criminal solicitors and grants for solicitors to train to represent clients in the Crown courts and above as solicitor advocates.

Investment and reform will make the fee structures better reflect work done and will improve the efficiency of the criminal legal aid system by incentivising early engagement and resolution where appropriate.

They will reinforce a more sustainable market, with publicly funded criminal defence practice seen as a viable, long-term, career choice, attracting the brightest and best from all backgrounds—a pipeline for the judges of tomorrow.

The proposals will put criminal legal aid on a sustainable and stable footing for many years to come—underpinning an effective and robust justice system that will benefit victims of crime, and everyone in our society who relies on it.

On the means test review, I am proposing a wide suite of changes to ensure continued access to justice. These include:

increasing income and capital thresholds for legal aid eligibility, meaning that 3.5 million more people will be eligible for criminal legal aid in the magistrates’ court and 2 million more people will be eligible for civil legal aid;

removing the upper income threshold for legal aid at the Crown court, meaning that all Crown court defendants will be eligible for legal aid;

excluding assets from the means test where they are the subject matter of the case, making it easier for domestic abuse victims to access legal aid;

removing the means test for three areas of civil legal aid: civil representation for under-18s, civil representation for parents or those with parental responsibility facing the withdrawal or withholding of life-sustaining treatment from their child, and legal help for inquests involving a potential breach of rights under the ECHR (within the meaning of the Human Rights Act 1998) or where there is likely to be a significant wider public interest in the individual being represented at the inquest.

These measures aim to improve the operation of the whole criminal defence market and the justice system. They are designed to make the criminal justice system more efficient—particularly around new technology—and to make the criminal defence market more sustainable. The consultations will run for 12 weeks, after which the Government will consider responses in detail and formulate our response.