Criminal legal aid: reforms risk undermining rule of law

26 July 2018

Government reforms to criminal legal aid risk eroding rights to legal advice and representation, tarnishing the reputation of our justice system, and undermining the rule of law – risks that can no longer be ignored.

Report findings

MPs call on the Government to carry out a comprehensive and independent review – similar to the recent independent review of legal aid in Scotland – with the aim of devising a scheme that is sustainable and user-focussed.

The report considers recent changes to criminal legal aid, including the Litigators’ Graduated Fee Scheme (LGFS) and Advocates’ Graduated Fee Scheme.

In the Committee's separate inquiry on disclosure of evidence in criminal cases, an emerging pattern in the evidence indicated that these schemes were working against the ability of the defence properly to fulfil its role, as neither scheme offers remuneration for time spent reviewing unused prosecution material.

This, together with the dispute that had emerged between the Criminal Bar and the Ministry of Justice over the revised AFGS, prompted the Committee to take oral evidence from the Criminal Bar and solicitors' representative organisations.

Based on this, together with understanding of the background to the AGFS dispute and an exchange of correspondence with the Secretary of State for Justice, the Committee decided to publish this short report on criminal legal aid.
The Committee calls for the review of criminal legal aid to be launched no later than March 2019 and take no more than twelve months to complete.

It also recommends that the review be underpinned by output from the criminal legal aid workstream within the post-implementation review of the Legal Aid, Sentencing and Punishment of Offenders (LASPO) Act 2012.
The Committee also recommends that the Government conduct an urgent cross-departmental review of funding of all elements of the criminal justice system, with the aim of restoring resources to a level that enables the system to operate effectively.

The details of the review should be published in advance; its timetable must ensure completion in time to influence the conclusions of the 2019 Spending Review.

Under-funding threatens the criminal justice system

Chair of the Justice Committee, Bob Neill MP, said:

“In criminal cases, there is a common law right to legal advice, and a right to legal representation under the European Convention on Human Rights.

There is compelling evidence of the fragility of the Criminal Bar and criminal defence solicitors' firms, which places these rights at risk – a risk which can no longer be ignored.

We heard first-hand the deep unhappiness among barristers about their situation and the future of the criminal justice system as a whole.

The Government cannot kick these problems down the road any longer and they must carry out comprehensive reviews to develop policies that are sustainable in the long term.
An effective criminal justice system is one of the pillars on which the rule of law is built.

Under-funding of the criminal justice system in England and Wales threatens its effectiveness, tarnishing the reputation of our justice system as a whole, and undermining the rule of law.

These reviews should be carried out with urgency to end the crisis we are currently facing.”

Further information

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