Monday Message – 24.07.23
Lord Chancellor Alex Chalk KC MP may well have made his own moment in history, by booting the “fat cat” out of discussions about legal aid and the Criminal Bar.
Giving evidence at the Justice Select Committee on the 18th of July, the Lord Chancellor reflected on his own experience as a practitioner, travelling to Snaresbrook Crown Court to appear in a mention in a serious case for £46.50.
He described it as “pretty demeaning”.
He said:
We are putting more money into the courts estate, to make it an attractive place to be. We will put, at steady state, an additional £144 million into criminal legal aid. I declare my own interest—I was a criminal legal aid barrister. They do incredibly important work. They make the whole system work.
…
I also wanted to send out a message: legal aid solicitors and barristers will always be respected by this Government. We are not going to go down the ridiculous rabbit hole that others did of boasting that they were going to derail the gravy train of legal aid or trying to name and shame them. There will be none of that. We respect them and we want to reward them.
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“Legal aid barristers and solicitors work phenomenally hard and do an incredibly important job to make sure that the guilty are convicted, the innocent walk free and the public are protected.”
He also referred to working conditions:
“I want the condition of our estates to be such as to inspire pride in the profession so that people know that they are indeed joining a profession and not something that might give them pause for thought. That is what it is all about.”
The fat cat is in orbit, and supportive words from the Lord Chancellor are welcomed.
Actions are the test.
Section 28 Fees
A reminder of what has been delivered and what we require:
- The S.I for a bolt on fee of £670 plus VAT was laid on 31st January 2023 and brought into force on 1st February 2023.
- This was an exceptional bringing into force in 24 hours.
- It occurred after I wrote to the then Deputy Prime Minister, Dominic Raab, on the 25th of January 2023, raising concerns that the proposed government timetable for the S.I. was not in accordance with the deal; rather it was planned to come into force at the end of February.
- On 3rd of February 2023 Minister Mike Freer MP, Parliamentary Under-Secretary of State for Courts and Legal Services, reaffirmed the commitment to the £4 million spend in the spending review period up to March 2025.
- The review in the Spring was incorporated into the deal by the CBA to maximise opportunity to ensure that the spend is met.
- Too often, there is unrealistic projected spend and then underspend at the end of the spending review period, with the difference not then returning to the Criminal Bar.
- A key commitment from Minister Freer:
“As you know, we have committed to reviewing this in Spring 2023 and I believe this is the best time to revisit these issues. We remain committed to spend £4m over the current SR (i.e. by March 2025) as we set out and we will have more data on the number of hearings by Spring. In the meantime, I am exploring whether there is any more that we can do to allow s28 payments to be made earlier than the conclusion of the case.”
Access the letter here.
Justice Select Committee Questions on implementation of the reviews.
The following exchange between Sir Bob Neill MP, Chair of the Justice Select Committee, and the Lord Chancellor is important (reproduced in part and highlights added):
Chair: ………….The section 28 fees of £670. Apparently, the CBA is not able to establish from your Department what the actual spend is on that section 28 money. Why is that?
Alex Chalk: ……….
I always listen carefully to what the CBA has to say. The reason I have some sympathy with the point is, if you are going to cross-examine the key witness in this case, best you have considered the unused material and best you have read all the witness statements—
Q203 Chair: You have to prep the whole trial.
Alex Chalk: You have to prep the whole trial. You have to do it. By the way, you are then handing over to someone else. You want to do it as a matter of professional pride. You want to hand over something that is good.
A discussion needs to be had about the correct fee for that. I have to be careful not to get that figure wrong. Once you get to full operating temperature, if you set a figure but suddenly you bust your budget, I have to go along to the Treasury or indeed take money from other budgets. I have to proceed with caution.
The central point made by the CBA is a perfectly fair one. Is £670 the right amount? I think there is an argument for saying, given the amount of work that needs to be done in most cases, that it is not a king’s ransom—it is probably as high as I can sensibly put it at this stage. I am looking at this very carefully because it is an important part of the offer that we make to victims.
…….
Chair: There was also going to be a review, was there not, of the implementation of the special prep and wasted preparation fees? I think that was going to be reviewed in July. That is this month.
Alex Chalk: Yes.
Chair: Is that going to be completed by the end of this month?
Alex Chalk: We had a conversation. I cannot precisely remember, but I think the answer to that is yes. If I am wrong about that, I will let you know.
Chair: It would be a gesture of good faith, would it not, to say to the CBA, “We are going to deliver on that”?
Alex Chalk: I cannot speak for the CBA. It is more than capable of speaking for itself. There is a really strong desire to have a respectful, decent and adult relationship. I am certainly getting that impression. I will work in good faith and hard to try to iron out any lingering issues. We are in a materially better place, and I hope that I can make announcements in due course that will cement that progress.
Inadequate Response
There was no answer to the question as to why the MoJ will not provide the figure of spend on section 28 cases since 1st February 2023.
It is likely to be a very small amount.
It is key information to inform the amount of increase.
It is difficult to pick up a file thrown through a revolving door and some latitude has been given to the Lord Chancellor as the months have glided by before he was able to meet.
However, a commitment to making announcements “in due course” is inadequate and not in accordance with the deal between the MoJ and the CBA.
On the 20th of July, I wrote again to the Lord Chancellor, providing further data, including from two chambers, and reiterating the arguments made since November 2022 on the need to urgently increase the bolt-on fee and review the special preparation/wasted preparation additional fee.
Special Preparation/Wasted Preparation
Last week, the Ministry of Justice produced a further paper as part of the review on special preparation and wasted preparation.
The AGFS sub-committee of CLAAB, which comprises members of the junior bar and the remuneration committees of the both the Bar Council and the CBA, will respond.
CLAAB
The independent Chair of CLAAB has been appointed.
Former Senior Circuit Judge at Southwark Crown Court and Recorder of Westminster, HH Deborah Taylor is the Chair.
She was announced on the same day that she chaired her first and our fourth meeting of CLAAB.
On 20th July 2023, I attended CLAAB, together with Tana Adkin KC.
I welcomed HH Taylor to her new position.
Her high-level expertise and experience of the Crown Courts, as well as understanding of the legal aid system make her an excellent appointment.
I raised with HH Taylor the urgency of ensuring full implementation of the deal between the MoJ and the CBA, as well as working on medium and long-term reform.
The junior bar and its representation on CLAAB’s AGFS sub-committee and diversity of CLAAB also were discussed.
Courts
As part of ongoing communication with Resident Judges over issues within court buildings and over listing, last week I had a meeting with the Resident Judge of Inner London Crown Court, HHJ Usha Karu.
I am told that there is no norm of starting cases at 9.30 or 9.45 am and this occurs only in specific circumstances, including at the advocate’s request.
As a two-way sounding, I relay that the court experiences problems with very late CVP requests, with examples being given of the same morning as the hearing and after 5pm the evening before the hearing.
As always, the communication between the Resident Judge of Inner London and the CBA is supportive of the Criminal Bar and remedy focussed. If there are specific issues, they will be considered.
It’s a Lottery….
Magistrates’ Courts Certificates for Counsel
This evening, I attended a meeting with the Chief Magistrate, Paul Goldspring, together with Kate Aubrey-Johnson, Tana Adkin KC, Vice-Chair of the CBA, Zayd Ahmed, Chair of the CBA YBC and Soraya Bauwens.
Guidance on the issue of Certificates for Assigned Advocates in the Youth Courts is being finalised.
It was drafted by Kate Aubrey-Johnson who is working across policy on proper and consistent representation of children in the criminal justice system.
It was a positive meeting and builds on the YJLC paper.
Crown Court Improvement Group
Last week, I attended my last CCIG meeting.
Retention of sufficient criminal barristers remains a key issue and the group provides an opportunity to monitor data as well as hear reports from those who form part of the criminal justice system, including the CBA.
Chair and Committee Summer Drinks Party – 27th July 2023
I hope you can make it.
This will be my social sign-off as we head towards the end of my year as Chair.
Doors open at 6pm and I will give a short speech at around 7pm.
It is a thank you, a reflection and a looking forward.
Please let Aaron know if you can attend.
Chair’s Essay Writing Competition for Under 7 years’ Call
This Competition closes on 28th July and invites Pupils as well as Barristers under 7 years’ call to apply.
Applications are invited for awards from the Criminal Bar Association Chair’s Essay Award.
You will need to indicate which award you are applying for when completing the application form as this will depict which essay you undertake.
An award of £3,000 will be awarded to successful applicants.
Please complete the application form and return, along with your essay, to the CBA Administrator by noon on Friday 28th July 2023.
Applicants will be notified shortly after the 1st of August.
Download the Application Form here.
Final Words
Whilst it is encouraging to see lazy political tropes about criminal barristers kicked away, a clear path will only carry progress if the new Lord Chancellor reengages drive.
Meanwhile, the CBA continues to push.
See you all on the 27th!
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