As “a matter of important policy” and on the ground that they may “imperfectly achieve their policy objectives”, the special attention of the House has been drawn to the Criminal Legal Aid (Remuneration) (Amendment) Regulations 2013, the Criminal Defence Service (Very High Cost Cases) (Funding) Order 2013 and the Civil Legal Aid (Remuneration) (Amendment) Regulations 2013.
The House was urged to press the Ministry of Justice for a “more robust argument to support its assertions that the instruments will not have an impact on the administration of justice”.
The Scrutiny Committee, which examines the policy merits of legislation laid before the House of Lords subject to Parliamentary procedure, reviewed the SIs in the light of the strong objections registered by the Bar Council, Bar Standards Board and Criminal Bar Association.
“Although the MoJ’s stated objective is to make savings of £20 million a year from these changes,” the Committee’s 18th Report of Session read, “the potential unintended consequences set out in the correspondence indicate that this may not be realised at least in the transitional phase, if cases are dropped and have to start from scratch with another advocate.
“The profession’s objection to fee rates being set outside the contract and, therefore, subject to change without the right to re-negotiation may also have a significant impact on the supply of suitably qualified advocates.”
On the civil regulations, the Committee recommended that the House should request a “more complete explanation” of the way the fee scheme will work in practice, noting insufficient information in the explanatory memorandum (20th Report of Session).
Maura McGowan QC, Chairman of the Bar, urged Parliamentarians to agree with the recommendations of the Scrutiny Committee and to press for a “much-needed debate” to evaluate the significance of these changes. This “poorly drafted legislation” would “damage access to justice” and “threaten the continued viability of practice of many publicly funded barristers,” she said.
A prayer to annul the Criminal Legal Aid (Remuneration) (Amendment) Regulations 2013, laid by Lord Carlile of Berriew, was due to be debated in the House of Lords as Counsel went to press. The regulations would be annulled if the prayer motion is agreed by the House within 40 days of the statutory instrument being laid. McGowan wrote to all peers to emphasise the importance of the debate to the Bar.