There is also “merit” in idea of annual review of legal aid fees
The government has accepted in principle a recommendation that the Legal Aid Agency (LAA) should implement a new payment system and move to a staged payment system.
In his independent review of the criminal courts, published earlier this year, Lord Brian Leveson said this would incentivise earlier engagement, remunerate lawyers in a more timely fashion and encourage good performance.
Responding to the 180 recommendations this week, the government said that, while it accepted the principle of this recommendation, implementation was subject to “exploring options for reform and their feasibility”.
It went on: “The recommendation may help sustain providers in the legal aid sector by improving cash flow levels. However, we will need to consider further how staged payments could be designed or targeted to ensure they reflect work done and court timings.”
The joint response from the Ministry of Justice, Home Office and Attorney-General said they had “embraced Lord Leveson’s central conclusion – that fixing this crisis necessitates us to pull all available levers”.
It explained: “So we are investing at record levels in maximising court capacity: unlimited Crown Court sitting days, increasing the size of the magistracy by 50%, and up to £34m more a year for criminal legal aid advocates, alongside £116m invested in criminal legal aid solicitors. Across all jurisdictions, £287m is being invested in the court estate to make vital repairs and upgrade digital systems.”
Some of the changes are being implemented through the Courts and Tribunals Bill, currently before Parliament.
The response also accepted in principle the recommendation that legal aid fees be reviewed annually.
“The government agrees that there is merit in the idea of reviewing fees on a more regular basis. This has the potential to improve financial planning of the government and legal aid providers and thereby support the market,” it said.
“The development of any review mechanism should take place after court reforms have bedded in, and after current funding discussions, including an uplift of £34m on the AGFS [advocates’ graduated fee scheme], have concluded. Accepting in principle means the government will need to consider various factors, including the scope and frequency of any review, as well as the role of structures alongside fee levels.”
There were two legal aid recommendations accepted unconditionally. First, that any future reform of the legal aid fee scheme should be adjusted to recognise the work advocates do in order to prepare for the plea and trial preparation hearing – this is covered by the AGFS package. And second, that the LAA promotes the pre-charge engagement fee to duty solicitors and actively encourages its usage to facilitate more out of court resolutions.
The response said: “The Legal Aid Agency will continue to work with the sector to ensure the availability of this fee is understood, including through the Criminal Legal Aid Advisory Board (CLAAB).
“In the response to the independent disclosure review, the government agreed that the criminal legal aid fee schemes should support early engagement with the disclosure process, and early preparation of cases more broadly. Payment for pre-charge engagement was introduced in 2021, though we acknowledge take-up remains low.
“We therefore committed in the response to the disclosure review to consider how best to encourage take-up, including discussing it with the relevant sub-group of the CLAAB. Although providers are already able to ‘self-grant’ for pre-charge engagement, we will consider if there are opportunities to streamline the application process further with the CLAAB.”
Two other recommendations were accepted in principle: that the LAA amend fee structures so that attendance by the advocate at the pre-plea and trial preparation hearing advocates meeting qualifies for an early-engagement payment, irrespective of when paid; and that the lower and upper income threshold limits for criminal legal aid in the magistrates’ court be increased to £13,000 and £34,250, respectively, in line with recommendations from the means test review.
On the latter, the response said: “Once court reforms have been fully implemented, we will be better placed to take final decisions on income threshold levels, subject to future funding decisions and operational considerations.”
One recommendation was rejected, namely that committals for sentence should not be remunerated at less than the equivalent remuneration for a guilty plea in the Crown Court.
The government said: “Lawyers have a duty to advise their clients on the entering of pleas based on the clients’ best interest. There is limited evidence of litigators encouraging clients to have their case heard in the Crown Court and delaying guilty pleas for financial purposes.
“This measure would therefore be a disproportionate response and reduce the appropriateness of committal fees in reflecting work done – a key principle underpinning criminal legal aid fees. We are however proposing to make adjustments to the fee for committals for sentence as part of the £34m funding towards the AGFS.”
The government also accepted a recommendation to work with the legal profession in finding the “best operating model” for the criminal legal aid market, after Lord Leveson found that the “sheer number” of criminal legal aid firms was “unsustainable” and there was merit in “some form of consolidation”.