New Advocates' Graduated Fee Scheme ‘step in the right direction’ but fails to involve an increase in funding – Chair of the Bar

Posted On: 
23rd February 2018

Responding to today's announcement of a new Advocates' Graduated Fee Scheme (AGFS) the Chair of the Bar, Andrew Walker QC warns the proposal accepted many of the points raised by the Bar but it still fell short in several respects.

The Ministry of Justice have announced the final form of a revised Advocates' Graduated Fee Scheme (AGFS).

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 Advocates' Graduated Fee Scheme (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. 

But not only have the cuts been dramatic, they were done in such a way that they produced a scheme whose very structure was a further barrier to a sustainable future.  With the aim of addressing this, the Ministry of Justice have now announced the final form of a revised AGFS, framed by reference to a Government-imposed restriction of 'cost-neutrality'. 

We cannot ignore the unpalatable fact that the changes being made do not truly involve an increase in the money being committed to the scheme, even though several of the rates payable will be higher than originally proposed; and while we are not surprised by this, we cannot disguise our disappointment.  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 and their crucial role in the Crown Court and above in maintaining the rule of law and in making the administration of justice a reality. 

Nevertheless, the changes that have been made represent an important step in the right direction for the long term future of the Criminal Bar, by seeking to address the barrier created by the distorted structure that repeated cuts had produced.  A great deal of time and effort was invested into this on all sides to try to re-design the structure of the scheme so as to reinstate more consistency and rationality, and to make it more sustainable, within the constraint of Government-imposed cost-neutrality.  On the Bar's side, many barristers at all levels of seniority committed an enormous amount of own their time and effort, and they did so because of their belief in the future of the Criminal Bar, and with a real desire to try to achieve those aims. 

The original proposal by the Ministry of Justice accepted many of the points raised by the Bar in this regard, but it still fell short in several respects.  It is reassuring to see a number of the shortcomings addressed in the final scheme, even if the gains at an individual level are modest, although we still need to study the final documents in detail. It is right that the focus of these adjustments has been on those starting out or still in their first few years of practice, although they are not the only beneficiaries of the changes.  The Bar will also be reassured by the Ministry's firm commitment to a review after 18-24 months. 

With a renewed structure in place, the Bar Council will continue to press for the index-linking of fee rates, and we note the Ministry's promise to keep this under review.  We shall hold them to that promise, and they can expect to hear much more from us in this regard. 

The Bar Council will continue to argue the Bar's case for proper funding of the criminal justice system in all respects (including the provision of legal aid), not least so as to ensure that we can develop and preserve the quality of advocacy in our justice system.