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CBA Monday Message 26.11.18

Chair’s Update:
Chris Henley QC




By now you will have read or heard about the Lord Chancellor’s announcement at the Annual Bar conference on Saturday that a further £8million will be invested in AGFS. The full detail of the specific fees which will be enhanced to achieve this headline increase will be provided in the MOJ’s formal response to the consultation to be published within the next week or so. The SI will be laid the same day. (I will not relax until this finally happens).

It is a very positive development and will make a significant difference to every junior advocate. It is the result of constructive, patient but firm engagement with the Lord Chancellor and the Justice Minister. They have shown flexibility, they have listened and they have gone further than was originally agreed.

A brief explanation of the figures might be useful. In May this year a ‘final’ offer of an additional £15m (including VAT) was made by the Lord Chancellor to Angela, the then Chair. The £15m was comprised of £12.5m plus a 1% increase to all fees from 1st April 2019.  Action was suspended for a ballot to take place. By very narrow margin, 52% to 48%, but on an unprecedented turnout members decided to accept the additional £15m and to suspend action. The £15m was calculated on the basis of the 16/17 annual AGFS figures. At this stage they were the most recent figures available. The extra £15m would have taken the headline spend figure from about £227m to £242m (including VAT) on 16/17 figures. However, when the 17/18 spend figures were published and the proposed new fees were applied to the 17/18 caseload the new fees resulted in an increase of the headline spend figure of only £8.6m (in part the explanation is likely to be a fall of 7% in case volumes).

Against this background, as you know, we have argued that more investment is required to produce a £15m overall increase on the most recent figures ie 17/18 not 16/17. I won’t repeat the arguments we deployed; they have been set out in previous Monday Messages. In order to produce a result which achieves the £15m increase on 17/18 figures, the original 16/17 baseline has effectively been increased by a further £8m to £23m. A series of significant fee increases beyond those in the original consultation will be published shortly. The sorts of fee enhancements that the CBA has argued for are minimum refreshers of £400 (the current minimum is £300), increases in brief fees for violent disorder, robbery, kidnap, serious violence, and all standard offences. Election cracks and a more flexible definition of special preparation are also in the list. We have also identified a series of offences which we believe should be re-categorised.

We do not know the full details yet but I am hopeful that our priorities will be the principal template used by the MoJ. I will say more when the detail is published, but we have argued strongly that focusing new money where it is really needed rather that spreading it thinly produces much better outcomes. None of the new money announced on Saturday will benefit QCs, or be used to increase fees for terrorism or murder. Other fee areas require more urgent attention. The only qualification to this is that all fees were already scheduled to increase by 1% from 1st April 2019. This increase will now be brought forward to the date of the SI to provide compensation for the time it has taken to implement the new fees.

This further investment will not solve all the problems with the structure of the new scheme, particularly in relation to the highest PPE cases in certain categories, nor does it mean that the CBA is now satisfied with remuneration levels for publicly funded Crown Court advocacy. It will require time to develop the sustainable solutions that will secure the future for our members. It was impossible to achieve more in the limited time available. We have a commitment from the MoJ that the work on the outstanding issues with the structure of criminal legal aid in the Crown Court, including collecting the necessary data, will start immediately, working towards the review in 18 months’ time. We look forward to supporting and engaging in that process.

We also need to do what we can to help the MoJ build a strong and coherent evidence based case to present to the Treasury to set out the extent of the work the criminal Bar has to do to prepare cases properly and what ‘fair payment’ for this work really is.

As part of this work but also to listen what you have to say generally Caroline Goodwin QC, the Vice Chair, and I will be holding meetings across the country in the next few months. Tonight we will be at Garden Court North in Manchester. Leeds is next on the list. If your chambers can host a meeting please let us know.

There are other areas which have also seen very positive developments, particularly in relation to Flexible Operating Hours, but also the recent invitation the Bar has received to attend the National Criminal Justice Board, with the most senior leaders across the Criminal Justice System, chaired by the Justice Secretary, which will give us an important voice and opportunity to influence key policy decisions.

At the Bar Conference both the Lord Chancellor and the Attorney-General spoke positively about the independent Bar and the importance of restoring legal aid. The Attorney’s disclosure review made specific reference to the need for payment for unused material.

Andrew Walker QC has been immense in his support for the criminal Bar this year; his time, energy, charm and awesome brainpower have been invaluable. We would not have achieved what we have without him, and the resources of the Bar Council. His speech on Saturday was perhaps one of the most powerful ever delivered by a Bar Chair. Read it here.

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