In my initial response to the announcement of the new Advocates' Graduated Fee Scheme (AGFS), I said this:
"For years, our system of criminal justice has suffered from a remorseless succession of cuts in funding, and wholly inadequate investment. This has included huge cuts in the fixed fees payable to those defence barristers who carry out publicly-funded work in the Crown Court under the [AGFS]; cuts that, proportionately, have far exceeded those imposed on public service providers in any other sector. These are the very same barristers who are working tirelessly under an ever-increasing workload for those very same fees. Without their commitment, and their continued goodwill, the system would simply cease to function.
"The result is that there are now real and pressing concerns about the viability and sustainability of practice for many at the Criminal Bar, and about whether the Bar will be able to continue to recruit and retain the practitioners needed to do this vital work for the future."
I have spent much of my time since then discussing both the new scheme and those wider concerns with very many Heads of Chambers and individual barristers, both in London and across the country, with circuit leaders and, most especially, with the leaders of the CBA, Angela Rafferty QC and Chris Henley QC. Both the CBA and the Bar Council have been in contact with the House of Lords Scrutiny Committee and have met with Ministry of Justice officials to explain both the Bar's reaction to the new scheme and the context of the damage caused to the criminal justice system, and to the Criminal Bar, as a result of significant, long-term neglect by successive governments.
Criminal barristers have expressed a range of views to me about the structure of the new scheme, but there is unanimity that the fee levels across the board are inadequate, and there is widespread concern about those types of case in which the fees will be much lower under the new scheme, and about the impact of this on those members of the Bar and sets of chambers who will be most affected. There is also real dissatisfaction at the failure to recognise the work required to deal with the increasing amount of evidential and unused material that has to be considered properly in many types of case.
The inevitable consequence of both Government-imposed 'cost-neutrality' and the absence of index-linking is that we still have a system of payment for the vast majority of criminal defence work in the Crown Court that undervalues the skills of the Criminal Bar, underestimates the amount of work that cases now require, and fails to recognise our crucial role in maintaining the rule of law and in making the administration of justice a reality.
All of this is happening against a backdrop of crises in the justice system. For many years, the publicly-funded Bar (in both criminal and family work) has borne the brunt of an under-funded and over-burdened justice system. We are the ones who have kept cases going by doing the extra tasks, and putting in the extra hours, for ever diminishing fee rates. In crime, we are the ones who have been the last line of defence when failures in the disclosure of unused material have threatened the fairness of criminal trials. I understand the serious concern that we (prosecution and defence counsel) will again bear the brunt of under-funding and failures in the system by being inundated with even more material without being paid anything more for the time we have to devote to it.
Wherever the reaction and decisions of the Criminal Bar may take us, there is work that we want to carry out in any event, but we will need the help of criminal chambers.
While we will in any event hold the Government to its promise to review the effect of the final scheme, we must carry out our own assessment of its impacts, based on the most recent full year's data that is available, i.e. 2016/17. We are already in the process of obtaining this data, for the whole of the AGFS scheme, from the Ministry of Justice, and we will be looking very carefully at the impacts on different types of work and different types of practice in crime. But I would echo Angela Rafferty's plea in last week's Monday Message that everyone should look at their own figures carefully (and at more than just a snapshot), so that everyone has a clear understanding of the impact on themselves and their chambers. Once we have the data, we may be able to help a few sets by making an assessment of the impact of the scheme on the whole of those chambers' AGFS caseload for 2016/17, as best we can. If Heads of Chambers are able to draw conclusions about the effects on their own chambers, then I need to hear from them. Unless we analyse carefully the effects of the new AGFS, we risk losing focus and the opportunity to address the real and pressing concerns about the viability and sustainability of practice for many at the Criminal Bar. We also owe it to all those who were involved on all sides, and in good faith, in trying to find a way to improve the scheme to make sure we are looking at it fairly.
One of my priorities, irrespective of the new scheme, has been to try to establish and prove the long-term effects of what has been happening for years in the criminal justice system on the future of the Criminal Bar. Headsof Chambers have been telling me consistently about the difficulties that they have experienced in recruiting and retaining junior barristers in criminal practice. Although we have been gathering and analysing increasing amounts of data on the young Bar (derived, for example, from our Working Lives Surveys and the Pupillage Gateway system) we need more information. We will soon have the information that the Bar has provided when renewing their practising certificates this year, which will give a clearer picture of the Criminal Bar as it is now, but we need to know more about the trends over the last decade. I would urge all Heads of Chambers in sets with significant criminal practices to respond to the requests for information that we will be making shortly. Their input is vital.
W e need to focus on this urgently in order to draw firmer conclusions on which to base further representations to the MoJ about the effects of the new AGFS and the need for proper remuneration for publicly-funded criminal defence work.This affects not just the Bar, but the future of the administration of justice itself.
I repeat the message that I gave on 11 December 2017 to the whole of the publicly-funded Bar in my Inaugural Address when taking the helm at the Bar Council:
"The rest of the profession - employed and self-employed - is with you ... because we care. Not just because you are our fellow barristers; and not just because we know that we are far stronger together. Not just, too, because we know that the public's attitude to the Bar is affected a very great deal by your position and reputation; you are, after all, those who deal most closely with the public in times of personal crisis. As much as all that, we care because we know that, without you, we could not secure proper access to justice in all of those times of crisis."
True to that message, we shall continue to work closely with the Criminal Bar Association, as well as with Circuit Leaders and chambers, to play our part in supporting the Criminal Bar in striving to secure its long-term future.
Andrew Walker QC, Chair of the Bar