Response to AGFS consultation

On 12 October 2018, Young Legal Aid Lawyers (YLAL) responded to the Ministry of Justice consultation on 'Amending the Advocates' Graduated Fee Scheme'. Our full response to the consultation is below.

We told the government that whilst we welcome the much-needed injection of additional funding into the Advocates' Graduated Fee Scheme (AGFS), we wish to make it absolutely clear that it is not enough. It is not enough to address the crisis within criminal legal aid and, more broadly, the criminal justice system as a whole.

The current fee schemes for criminal legal aid – both for advocates and litigators – have resulted in a profession facing a crisis of recruitment, retention and sustainability. Without greater funding for criminal legal aid, we believe there is a serious risk that there will not be a sufficient number of criminal defence lawyers to ensure that people charged with criminal offences receive adequate representation. The government must address this looming crisis in the criminal justice system before it is too late.

In a survey of our members conducted before responding to this consultation, the sense of anger was palpable: an overwhelming 96.2% of respondents stated that poor remuneration at the criminal bar was a deterrent from entering the profession. One member said:

“A career at the Criminal Bar is becoming unsustainable. This is due to poor remuneration, requirement to pay huge amounts in travel expenses up front, undertaking work that is not paid for (such as consideration of unused material), a very poor or non-existent work/life balance, rare ability to have lunch during the working day, impact on wellbeing as well as physical health, and Court buildings that are crumbling (lack of working toilets, leaks in the ceiling, lack of working lifts etc..). I am aware of several 'junior junior' barristers who are considering leaving the profession and are actively taking steps to pursue alternative employment opportunities. The problems are clear and greater funding is only the first step required to be taken.”

Another member told us:

"I am a very very junior barrister in criminal law. The proposals are not only killing my future in the career but at present, I am unable to afford, travel, food and rent. I do not have financial support from my family and unfortunately, there are days where I have to go without or even walk a bit longer to not pay for the extra bus. This is the suffering that those of us at the very junior end are going through. As a qualified barrister (third six pupil), I should not be finding myself earning significantly below living wage to the point where I cannot eat. I have sought assistance through benefits but being self-employed has made this option impossible for me so instead, thanks to the change in AGFS, I have to suffer in silence in order to do the career that I love."

Anecdotally, these accounts are typical of what we hear from YLAL members practising at the Criminal Bar. When considering this, it is clear that the rates of remuneration in the criminal legal aid fee schemes are simply inadequate. We believe that there must be a full review of all legal aid fees.

We conclude our response by saying that the underfunding of the Advocates' and Litigators' Graduated Fee Schemes, together with the significant difficulties concerning disclosure of criminal evidence, create a grave danger of miscarriages of justice taking place. We say that a long-term solution for criminal legal aid is urgently needed, and call on the government to:

a) Commit to an independent review of the long-term sustainability of criminal legal aid

b) Index link the Advocates' and Litigators' Graduated Fee Schemes to inflation

c) Adopt the recommendations of the report by the Bach Commission on Access to Justice, 'A Right to Justice'

YLAL would like to thank Audrey Cherryl Mogan and Stephen Davies for preparing this consultation response.

Read our full response below: