Consultation season is truly upon us. Following hot on the heels of consultations by the Solicitors Regulation Authority and the Bar Standards Board on the training of future lawyers
- covered in our last column for Legal
Action - last month saw the conclusion of three important
consultations affecting legal aid by the Ministry of Justice
While the government's proposals for reform of the Advocates'
Graduated Fee Scheme (AGFS) prompted a mixed reaction from the Bar,
the consultation on the Litigators' Graduated Fee Scheme (LGFS) and
court appointees appears to have succeeded in uniting criminal
solicitors in opposition to the plans - no mean feat given the
often disparate and competing interests of crime firms.
The MoJ also consulted in March on the introduction of quality-
and price-competitive tendering for the Housing Possession Court
Responding to consultations on legal aid can feel like wading
through quicksand - for any talk there may be of engaging
constructively with the profession, it sometimes seems almost
inevitable that the government will press ahead with whatever plans
it has to further deter and demoralise legal aid lawyers,
irrespective of respondents' views.
Given recent history, it may be tempting to succumb to
consultation fatigue or conclude that resistance is futile.
However, it is important for us all to remember - particularly with
the government's review of LASPO now on the horizon - that there
have been significant victories for legal aid lawyers in this David
and Goliath battle to protect access to justice.
In February, it was announced that the eligibility criteria for
victims of domestic violence in the family courts would be relaxed
to remove the fiveyear time limit and increase the categories of
evidence of risk accepted by the Legal Aid Agency.
The discriminatory residence test for civil legal aid was defeated
in the Supreme Court last year and, of course, in criminal legal
aid, the previous lord chancellor bowed to pressure from direct
action and legal challenges to scrap the proposed two-tier
contracts and suspend the second 8.75 per cent fee cut.
The supposedly cost-neutral proposals in the AGFS consultation
have provoked a debate about the impact of the planned changes to
fee structures on advocates' remuneration. The analyses we have
seen demonstrate that junior barristers and solicitor advocates
will lose out.
The LGFS consultation, meanwhile, proposes a reduction in the
threshold for Pages of Prosecution Evidence - above which 'special
preparation' must be claimed - from 10,000 to 6,000 pages, and
includes a proposal to reduce the fees paid to court-appointed
lawyers in circumstances where a defendant is barred from
cross-examining a witness or complainant, most notably in domestic
The prospect of the second 8.75 per cent fee cut for criminal
legal aid being implemented has been left to linger over the
profession like a Damoclean sword in the hands of the lord
chancellor who, subject to the outcome of the LGFS consultation, is
'minded to not reinstate' the second fee cut.
In response to that consultation, the Law Society, Legal Aid
Practitioners Group, Criminal Law Solicitors' Association and
London Criminal Courts Solicitors' Association released a joint
position statement opposing further cuts to legal aid as a threat
to the sustainability of the profession, which 'cannot absorb any
more cuts'. YLAL agrees, and opposes both the LGFS and AGFS
proposals (our consultation responses are on our website).
The government must understand the context in which these fee
reductions are proposed. While preparing our updated report on
social mobility, diversity and access to the legal profession, we
have been holding meetings of our members across the country to
discuss the barriers to becoming a lawyer and motivations for
working in legal aid.
It is clear that it is becoming increasingly difficult - and in
many cases impossible - for aspiring lawyers to begin their careers
in legal aid without significant financial support from their
It is essential that aspiring lawyers' understandable
desperation to climb the career ladder is not exploited through
extensive unpaid work experience. We have heard of members working
for months in fee-earning roles with no recompense but a vague
prospect of paid employment as a paralegal or trainee
While we recognise the acute financial pressures faced by many
legal aid firms, this kind of employment practice is unethical and
Perhaps due to the challenges that aspiring legal aid lawyers now
face in the post-LASPO landscape, there is near universal support
from our members for the idea that employers in the legal sector
should be required to pay the 'real' living wage, calculated by the
Living Wage Foundation as the amount people actually need to live
When publishing our updated social mobility report, we intend to
include a charter for employers to set out the minimum standards we
believe all legal aid firms and chambers should meet.
For now, we await the government's decision on reform of
criminal legal aid fees, and we urge the MoJ to safeguard the
future integrity of the criminal justice system by ensuring that
defence lawyers are fairly remunerated for their vital work. At the
moment, for young lawyers at least, crime really doesn't pay.
Oliver Carter is a solicitor at Irwin
Mitchell. Rachel Francis is a barrister
at 1 Pump Court Chambers. They are co-chairs of