Commons report attacks UK Government's legal aid reforms

Government reforms to criminal legal aid in England & Wales risk eroding rights to legal advice and representation, tarnishing the reputation of the justice system, and undermining the rule of law, according to the House of Commons Justice Committee in a new report published today.

The MPs say the risks "can no longer be ignored", and 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-focused.

Their report considers recent changes to criminal legal aid, in parallel with a separate inquiry on disclosure of evidence in criminal cases. It states that an emerging pattern in the evidence indicated that new schemes brought in such as the Litigators’ Graduated Fee Scheme (LGFS) and Advocates’ Graduated Fee Scheme (AGFS) 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". That, the MPs state, "is fundamentally unfair and likely to become unsustainable, and increasingly prejudicial to the defendant".

After taking further evidence from the criminal bar and solicitors' representative organisations and corresponding with the Secretary of State for Justice, the committee decided to publish this separate report.

It is "regrettable", the report states, that the Law Society of England & Wales has had to resort to bringing a judicial review to pursue its grievances about the LGFS, and it recommends that the Ministry of Justice take urgent steps to avoid this dispute having to be resolved by the courts; whatever the outcome of the case, there should be a wider review of criminal legal aid.

The committee also considers it regrettable that the criminal bar felt compelled to take direct action in response to the AGFS, given the potential for adverse impact on defendants, claimants and the functioning of the courts – but understands the bar's "heartfelt concerns" about the future of their profession and underfunding of the criminal justice system.

The independent review, the committee states, should be launched no later than March 2019 and take no more than 12 months to complete. It should take account of work carried out for the post-implementation review of the Legal Aid, Sentencing and Punishment of Offenders Act 2012.

Ahead of that, the Government should 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, and with completion in time to influence the conclusions of the 2019 spending review.

Committee chairman Bob Neill MP commented: "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."

Click here to view the committee's report.

• The open letter by defence solicitor Ken Dalling, published in this month's Journal, which attacks the Scottish independent review's conclusion that a case had not been made for a general increase in legal aid rates, has won support in today's Herald, with an editorial agreeing that "the reality is that legal aid work is relatively poorly paid and, because of that, an increasing number of solicitors are turning down legal aid work". It further points to the evidence from England & Wales that cuts are leading to more people having to defend themselves, as leading to "a breach of the basic principles of justice... it must not be allowed to happen here too".