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Plans to reform the Advocate Graduated Fee Scheme (AGFS), the Fixed Fee scheme for Defence Advocates who undertake work on legally aided criminal cases, were unveiled by the Ministry of Justice on 5th January 2017.
The Ministry of Justice say the plans are designed to introduce a simpler and fairer pay system for Advocates whose fee will be based on the seriousness and complexity of the work instead of the current matrix, such as the number of pages.
The new, updated Advocate Graduated Fee Scheme (AGFS) will be simpler and fairer, so say the Ministry of Justice.
The consultation document was based on a variety of factors raised within a broad range of proposals developed in consultation with the legal profession prior to the publication date of 5th January 2017. The measures aim to:
1: increase certainty and transparency for Defence Advocates
2: ensure fair payment for work done
3: reduce bureaucracy in the system to cut the burden on the taxpayer and Defence Advocates.
Justice Minister Sir Oliver Heald QC said:
“As we take steps to update and modernise our criminal justice system, it is vital that the way we pay criminal defence advocates fairly reflects this new reality.
Our current payment system does not focus enough on the skilled work that barristers and solicitor advocates demonstrate every day in the Crown Court. I want to change that to ensure the system is simpler and fairer.”
The Press Release goes on to say that:
“These proposals for a new Advocates’ Graduated Fee Scheme represent a welcome improvement on the current position and go a considerable way towards restoring career progression at the Criminal Bar.
If implemented, this new scheme will mean the introduction of a fairer way of rewarding defence advocates for publicly-funded work in the Criminal Justice System, with payment based on the seriousness and complexity of the work. The Ministry of Justice’s proposed new scheme is rational, focusing on actual in-court advocacy, rather than counting paper which the current outdated scheme does.
The consultation, and proposed new scheme, is a positive example of the Ministry of Justice participating in constructive dialogue with the profession through the Bar Council, Criminal Bar Association, Circuits and Young Bar. We are urging the Bar to respond to this important consultation. It provides a surer foundation for the future.
AGFS was last subject to reform in 2007 and is in need of modernisation. Detailed measures out for consultation include:
a simpler, more streamlined calculation of fees, including a new detailed categorisation system based on complexity
reduced reliance on counting paper, instead focusing on actual in-court advocacy
a move away from ‘bundling’ of fees into a base fee, improving transparency and certainty for all advocates, in particular junior advocates
focus on ensuring these reforms are cost-neutral”
The Consultation will run from 5th January 2017 to the 2nd March 2017.
Comment:
Clearly, these reforms have been mooted for some time and whilst, in some ways, they are admirable, whether they will succeed in providing a fairer remuneration for the Defence Advocate, remains to be seen.
By doing away with the matrix for the amount of pages involved in any criminal case one takes away the element of certainty for recovery of the Defence Advocate’s fee – who may well be left ‘out of pocket’ under this new proposed scheme.
There are a number of important questions to be asked, the most important being:
How will the level of the seriousness and complexity of the work be calculated?
We appear to be going back to the old system of utilising a band of seriousness and a further band of complexity – however, who decides?
Will this be based upon the discretion of the Court?
Only time will tell.
Finally:
The Association of Costs Lawyers will be considering this in detail over the coming weeks and will be seeking the views of their membership.
In the meantime, do take a little of your time in considering the consultation paper, which will run until 2 March 2017.
For further information, see the press release from the MOJ website and their document entitled ‘Reforming the Advocates’ Graduated Fee Scheme’ , available at :-
https://consult.justice.gov.uk/digital-communications/reforming-the-advocates-graduated-fee-scheme