It is no secret that the legal profession has undergone dramatic structural change in recent years as a result of Government reform.
However, with barristers now taking direct action and refusing to take on criminal legal aid cases, the question must be asked: what has happened to our justice system?
The reforms largely began in 2012, when the Tories, aided by the Liberal Democrats, introduced the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO).
This led to vast changes to legal aid in the UK, and ultimately made the test for legal aid harder for many who may find themselves navigating the UK's complex legal system.
Following LASPO there has been concern from the United Nations Special Rapporteur on Extreme Poverty and Human Rights that the ‘lack of legal aid for civil matters can seriously prejudice the rights and interests of persons living in poverty’.
This can be seen in the UK, with Amnesty International reporting in 2016 that much of this has impacted ‘on a range of disadvantaged and marginalised groups’.
However, as well as LASPO, the legal profession itself has been under assault. This has culminated in April 2018 with amendments to the Advocate’s Graduate Fee Scheme (AGFS), which is largely what has led to barristers taking direct action.
The AGFS was introduced in 2018, changing the way in which advocates receive payment for the work they carry out. It will move away from the current system which looks at various factors, from the nature of the offence to the complexity of the trial and the number of witnesses.
Instead, the system will no longer consider the complexity of the trial itself or the number of witnesses, and will largely only take the offence itself into account.
There are many pitfalls to this new scheme which have been highlighted by legal professionals.
One effect will be the direct impact on advocates pay within the criminal legal aid sector. In addition, because the scheme is now largely focused upon the nature of the offence this will also cause junior professionals, who typically deal with less serious and smaller offences, to see a stagnation in payment for their work.
Furthermore, experienced advocates who could have to litigate on a complex theft charge for example will also see a reduction in their pay. It appears that the policy has not accounted for the fact that often the nature of the offence is not directly linked to the complexity of the trial.
The impact that this scheme will have on junior practitioners has been raised by the Criminal Bar Association which represents the interest of professionals.
In response to the Government consultation on this issue they noted that the changes would have a negative impact on junior professionals and noted how the ‘proposed fees for them are inadequate’. There are fears that this could provoke a drop in the number of individuals entering the profession.
However, these new regulations will not just impact junior professionals but also will have a wider effect on the whole profession.
It has been raised by Doughty Street Chambers that under the new scheme, they had ’calculated [a loss] of up to forty per cent of a barrister’s income’. This is a clear reduction of remuneration and an increase to the financial strain that professionals face despite seeing increased costs connected with practice.
The concern for many within the legal profession about these changes is clear. There will be a direct impact on the funding received for their work, and an impact on all practitioners’ level of pay.
It is reassuring to see the response by the profession in taking a stand against these changes with the Criminal Bar Association balloting members and nearly 100 Chambers refusing to take instructions under these new regulations.
It is evident that the profession will not stand by as the Government removes access to justice and access to representation through cuts and austerity.
Looking at the bigger picture, it is important to appreciate that these reforms are not in isolation. They are endemic of the wider issues faced within the criminal justice and wider legal system in the UK.
This is because, under this government, there has been a severe lack of funding at all levels of the criminal justice system since the they began their aggressive agenda of austerity in 2010.
This has had a measurable impact not just on professionals but on those who may find themselves within the justice system, disproportionally impacting vulnerable people.
Until the government realises that the profession is on its knees and in need of urgent redress and a sustainable level of funding, the legal profession will continue to be ran on a shoe string.
This will see talented people leaving the profession, with the greatest impact being on claimants and those most vulnerable in the system. This latest reform will only compound the other issues faced by practitioners and add greater stresses to those in the profession.
These new regulations are one cut too far.