The long anticipated “new” Advocates’ Graduated Fee Scheme (AGFS) is finally with us.
The scheme is the result of discussions with senior representatives of the MoJ over a long period. As long ago as November 2014 a Bar Working Group was set up with representatives from every Circuit and the CBA, including a mix of junior and senior barristers. In October 2015 the Bar Working Group published their recommendations for a restructured AGFS which included:
Largely replacing the pages of prosecution evidence graduation (which was becoming increasingly unworkable in the age of electronic evidence) with a new form of graduation achieved by an expanded range of categories of case and banding within categories, determined by objectively verifiable proxies for complexity and seriousness;
Restoration of separate payments for sentences, Plea and Case Management Hearings, other ancillary hearings and the second day of trial.
After a long series of discussions with the Ministry of Justice, the MoJ issued their consultation in January 2017. The scheme they consulted on was quite close to that proposed by the Bar Working Group.
The Bar Council, the Circuits, the CBA and many sets of chambers and individual barristers responded to the consultation. There was a very wide range of views, but even those who were supportive made proposals to improve it.
After many more months of discussions with the MoJ (which included the Chair of the Bar, the Chair of the CBA, Circuit Leaders and working group representatives, including junior barristers) the scheme that the MoJ have now announced following the consultation has included very many improvements. The effect of many of them is to enhance the fees for the junior Bar.
The primary concern throughout this process has been an assured and sustainable future for the Criminal Bar, from the outset of practice at the most junior level (particularly through making sure that work done is actually paid for) into a sustainable longer-term structure. Unless there is a constant influx of high quality young advocates into our referral profession, and a sustainable future for them once they have joined, we will inevitably wither and die.
As Leaders of our respective Circuits we are each acutely aware of the trust which has been placed in us to negotiate to the Bar’s maximum advantage. In this instance we are particularly conscious of the history of previous discussions between the Criminal Bar and the MoJ and some of the consequent acrimony. However, it is essential, in our view, that we consider the current position dispassionately and with an emphasis on the future.
It is inevitable that any scheme which is described by the MoJ as “cost neutral” will attract some cynicism from our side. We are clear that the retention of the current budget is not to be regarded as any cause for celebration but it needs be viewed in the context of the current economic and political climate. When discussions began there was an intention on behalf of the Government to reduce the Criminal Legal Aid budget to levels which were comparable to levels which existed in approximately 2013. The current proposals are said to be “cost neutral” when compared to what was actually spent in 2016 (at fee levels that were not reduced by the last of the cuts that the MoJ originally intended).
The arrival at that position is a direct result of the discussions which have been conducted on behalf of the Bar and the engagement of the whole of the criminal Bar with the new proposals. It represents a significant change from the MoJ’s original stance. It was explained to the MoJ, by representatives from all quarters, that a further reduction in the overall budget would simply not be acceptable to the Bar and would inevitably provoke a significant adverse reaction from its members.
The new arrangements envisage the eradication of the somewhat arbitrary “page count” criteria currently deployed in some larger cases and it is recognised that will inevitably mean a reduction in fees in those types of cases. The question for the criminal Bar as a whole is whether the reduction in those types of cases has been sufficiently compensated elsewhere in the scheme and, in particular, redistributed appropriately from the perspective of the more junior members of the profession.
On close examination of the scheme, we believe that there are real and substantial improvements to the pay for the type of work which is typically encountered by junior members of the Bar and consequent financial gains to them. The most obvious examples are the increases in the fee to be paid for (I) standard appearances/mentions; (ii) basic trial fees; (iii) sentence fees; (iv) increased fee for an ineffective trial; and (v) second day of trial fee. The increased payments in those areas should create better cashflow and increased overall income for the more junior practitioners. The final scheme also includes higher fees than were originally proposed for mentions, sentences, PTPHs and several categories of offences.
There are also improved conditions for the more challenging work. They are represented by, for example, the eradication of the reduction in refreshers over 40 days; and the more sophisticated analysis of the seriousness of the offence (with reward being commensurate with the demands placed upon the experienced advocate). In the majority of examples, the increases in the “basic” fees and ancillary fees should provide some compensation for the reductions in the current “high page count” cases, in accordance with the aim of making practice in all areas of criminal work as sustainable as possible within the limits of the current budget.
It is to be hoped that an improvement in the funding of the junior members of the Bar will maintain and, hopefully, increase the diversity of entrants which we have strived so hard to promote over recent years.
Nobody should think that we as Leaders welcome any scheme which does not bring an overall increase to the fees we have seen decline significantly in real terms, but we believe that achieving a better scheme structure is an improvement worth having.
We have pushed hard for the new fees to be index-linked to protect against future inflation. The MoJ is adamant that this is not possible in current circumstances, but the battle for this will go on. We have in no way bowed under pressure, and we will not rest from continuing to make the case for an increase at every opportunity, because real sustainability will not be achievable without more money; but that does not deter us from seeing the new AGFS scheme as a first step down that road. It is of paramount importance that the Bar also bears in mind the likely alternative: the imposition on the Bar of a scheme that is considerably less favourable than the current proposals.
For those who remain sceptical, the MoJ’s commitment to a review of the new scheme after 18 months should give reassurance. That is the earliest point at which the impact of the new scheme can effectively be assessed; but not only does this give us a firm opportunity to revisit the scheme if it is not working as intended, but it will also give us the opportunity to return to the question of fee levels with further evidence of the long term impact on the Bar of inadequate fees even with an improved fee structure. We know that this is a concern shared by everyone, and it is a key issue on the agenda of the new Chair of the Bar. This is just one step on a longer road, but one that we believe is in the right direction. We would urge you all to keep that in mind.
Michael Hayton QC - Leader of the Northern Circuit
Nigel Sangster QC – Leader of the North Eastern Circuit
Bill Mousley QC – Leader of the Western Circuit
Paul Hopkins QC – Leader of the Wales and Chester Circuit
Kerim Fuad QC – Leader of the South Eastern Circuit
Michael Duck QC – Leader of the Midland Circuit