LORD CARTER'S REVIEW OF LEGAL AID PROCUREMENT, FINAL REPORT. LETTER TO MEMBERS OF THE CIRCUITS AND THE CBA, HEADS OF CHAMBERS AND SENIOR CLERKS FOR CIRCULATION TO ALL MEMBERS OF THE BAR: 13 JULY 2006
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13 July 2006

Dear Colleague

Lord Carter?s Legal Aid Procurement Review

Lord Carter?s final report (the ?Report?) was published this morning. This letter should provide you with an overview of its contents.  There will be a seminar at 6pm in Lincoln?s Inn Hall tonight (13th July 2006), transmitted by video link to the circuits, at which Geoffrey Vos QC will explain the outcome in further detail, and answer your questions.

The Report contains recommendations for a revised advocacy graduated fee scheme (?RAGFS?) and for the rates to be payable under that Scheme.  The rates are not directly comparable to GFS, but make up for the effects of inflation since the GFS rates were fixed.  RAGFS amounts to an increase of approximately 16% over GFS across the board.  It will be recalled, however, that only bolt-on rates and 1-10 day case rates were fixed in 1997.  11-25 day case rates were fixed in 2001, and 26-40 day case rates were fixed in 2004.

The Report contains the following crucial points:-

• The independence of the Bar is preserved (as it was in Lord Carter?s February 2006 Interim Report) by direct payment to the advocate instructed.
• The RAGFS provides an enhanced case fee, which reflects inclusion of payments for most bolt-ons that were previously paid separately.  These include payments for the PCMH hearing, all mentions/ other short appearances up to the sixth, all conferences up to the fourth, the first refresher, and all tape listening and video watching.
• Bolt-ons will still be paid (as ?case uplifts?) for the sixth and subsequent mentions (at ?100 each), the fourth and subsequent conferences, half and one-day substantive hearings including confiscation hearings, wasted and special preparation, trials not proceeding, and hotel and travel expenses.
• Cracks and guilties are increased in order to incentivise early preparation, as we argued they should be.
• New payment categories D+ and G+ will improve payment for serious sexual offences and for fraud above ?100,000.
• Payment will be made to the trial advocate(s) identified at the outset of the case, and he/she will be responsible for splitting the case fee amongst other advocates (where a case is returned or more than one advocate undertakes different hearings), but the Bar Council will provide a protocol explaining the way in which this should be done as a matter of proper professional practice.   It will not be possible for a solicitor to send the brief to a solicitor advocate, instruct a barrister at trial, and thereby get paid the entire case fee.  The case fee will be paid to the first barrister instructed, if a barrister undertakes the trial.
• The VHCC proposals provide for solicitors and barristers to bid to get on a panel to undertake VHCC cases, and for better CCU control over expenditure.  There will be a further period of negotiation as to the precise new arrangements.
• There will be two tiers of a review panel, which will meet to consider structural adjustments to the scheme, as we have always argued is crucial to ensure that the problems of past years are not repeated.
• Competition is to be introduced for solicitors? work in Police Stations, Magistrates? Court and Crown Court. Once solicitors have reached a steady state (post-2009), bidding may be introduced.  This would involve barristers bidding to undertake RAGFS work, but there will still have to be direct payment, only pro rata bidding (so solicitors cannot take part of the advocate?s fee), and a lowest possible rate below which fees cannot fall.

There will be no material changes to the rates or to the way barristers are paid for civil legal aid or under the Barristers? Family Graduated Fees Scheme Lord Carter recommends that the new graduated fees themselves will be introduced in April 2007.  We have argued strenuously that the date should remain as the last quarter 2006, as in the Interim Report. 

Unlike the Interim Report, the Report contains a great deal of material on diversity.  Lord Carter does not accept the premise of some of the submissions made to him, namely that a move towards larger firms and bidding by solicitors for police station, Magistrates? Courts and Crown Court work will disadvantage Black and Minority Ethnic (BME) firms, BME barristers and their clients.  Lord Carter proposes an LSC monitoring group to ensure that such disadvantage does not occur.  He has had Leading Counsel?s opinion that his proposals are diversity compliant.  Lord Carter has not previously permitted the Bar Council?s diversity groups to see his proposals, so we have not been able to evaluate their diversity compliance.  We will now do so as soon as possible, and let you know what conclusions we reach.

The increases proposed are lower than we originally proposed to Lord Carter in what we called GF06.  There have been intensive discussions in the last few days involving both Lord Carter?s team and the DCA.  We believe that what is on offer represents the very greatest increases that we are able to secure.

The Attorney General and the CPS have also been intimately involved.  We have been told that higher increases were not possible because of the CPS?s need to match the increases for prosecution work.  We have sought assurances that increases in line with Carter?s recommendations will be introduced for prosecution work at the same time as for defence work.

All this means, of course, that it is likely that Lord Carter?s proposals contained in the Report are acceptable to Government and will be implemented.  In this regard, we expect that the DCA will publish consultation papers in respect of Lord Carter?s recommendations in August 2006, and we understand that they will allow a 3-month period for consultation.  At the end of that period, we hope that Lord Carter will publish a memorandum report confirming his recommendations.  We hope that the Bar Council?s statistician (Prof Martin Chalkley) will be allowed an opportunity to iron out inconsistencies and imbalances in the recommended rates during the consultation period.

It is disappointing that the proposed figures are not as high as we had originally sought, and that many bolt-ons have been included in the case fee (notwithstanding our strong arguments to the contrary).   

Members of the Bar must now decide whether the proposals are acceptable or not.  As we have said all along, you will have an opportunity to make your views felt and heard, now that the Report is being published.  We can, however, say that we believe that this is as good an outcome as is available, and that the proposals are worthy of very serious consideration.

We attach as Annex A to this letter tables showing the figures for trials, cracks and guilties and case uplifts recommended in the Report.

Some further points that may affect your consideration of the Report are as follows:-

• The effects of inflation on GFS fees (for the notional period up to April 2007) have been almost exactly restored.
• There has been redistribution from the top to the 1-10 day cases.
• The 5th July 2005 fee cuts are not entrenched in the new scheme, because RAGFS is an entirely new scheme.
• It is not clear what the rates for VHCCs will be, but the base rates, on which bidding will take place, will have to be fixed in future negotiation with the LSC.
• Barristers will be paid by solicitors for normal cases in the Magistrates? Court, but assigned advocates for complex cases will be paid directly.