The 164-page consultation paper, Transforming Legal Aid, published on 9 April, admitted that it is unlikely to be sustainable in the longer term to continue to tighten remuneration indefinitely within the current fee and market structures. It claims to find the answer by replacing “the current system of administratively set rates with a model of competitive tendering”. In this first round, it proposes only to compete services which are delivered under “our existing standard crime contract”.There are currently over 1,600 separate organisations contracting with the Legal Aid Agency. Magistrates’ courts and police station work will be subject to PCT.
The Bar is not yet in a position to participate in a process of competitive tendering, the paper said: “[A]ny competition which included Crown Court advocacy would effectively amount to ‘one case one fee’ with the contractor (likely to be the solicitor) deciding how much to pay the advocate,” said the Ministry of Justice. “This would likely affect the long-term sustainability of the Bar as an independent referral profession. The Bar is a well-respected part of the legal system...and we will have due regard to the viability of the profession in reaching our final decision on the model for competition.”
The idea of a single national or regional providers was rejected in favour of procurement areas aligned to the 42 criminal justice system areas, covered by the recently appointed Police and Crime Commissioners, with provision for defendants to need separate representation to be allocated to a provider from another area.
Proposals to cut criminal fees include amending the Advocates’ Graduated Fee Scheme by introducing a single fee based on the current basic cracked trial fee; reducing the daily attendance fee by 20 to 30%; tapering rates for every additional day of trial; reducing VHCC fees by 30%; and tightening rules on the use of multiple advocates.
For civil legal aid, proposals include reducing solicitor representation fees in family public law cases by 10%; aligning the fees for barristers and other advocates in non-family cases; and removing the 35% uplift in provider legal aid fees in immigration and asylum appeals. Fees paid to experts in civil, family and criminal cases would be reduced by 20%.
The Bar Council welcomed the decision not to introduce competition for Crown Court advocacy, and is considering the long-term implications of tendering for advocacy in the lower courts. However, “that news comes alongside swingeing fee cuts,” said Maura McGowan QC, Chairman of the Bar, “which will hit the criminal Bar exceptionally hard”.
The Bar Standards Board said that its entity regulation proposals and recent changes to public access rules would help the Bar work more “flexibly and competitively” to meet the “new pressures in the legal services market”. Alternative business structures, such as barrister-only entities, would be key to bidding under the proposed model and would enable chambers to establish themselves in a form that can contract with organisations such as the Legal Aid Agency.
The consultation closes on 4 June.