Today Parliament is taking the highly unusual step of debating a statutory instrument (SI) to amend the system of payments for barristers and solicitors who practice in Crown Courts in England and Wales.
Because SIs are secondary legislation, they do not normally merit a specific parliamentary debate. Yet the fact that precious parliamentary time will be devoted to debating an SI – and not even a Brexit-related one – shows just how heated the debate about the justice system has become.
On the face of it, revisions to the Advocates Guaranteed Fees Scheme are not likely to arouse much protest, but they are indicative of wider problems facing the justice system.
Under the new proposals, advocates would be paid according to the complexity of their case rather than the number of court pages.
This sounds like a sensible return to the much fairer payment system that was abolished in 2008, but cuts in rates and the labyrinthine structure of the scheme mean that the level of funding and time available to advocates will actually fall.
Far from being ‘cost neutral’ as claimed by the Ministry of Justice (MOJ), therefore, this change will only increase the stress on a system that is already buckling under financial pressure.
That’s why barristers across the country protested against these changes last month by refusing to take on cases under the new scheme.
This unprecedented action by the Criminal Bar Association was supported by many solicitor advocates who believe that they will be unable to continue to operate effectively if the fee cut is imposed.
But it is not just defence advocates who are affected by the fanatical approach to cost-cutting in the justice system. If the justice system breaks down, it is ordinary people who suffer most.
People like Sam Hallam, who lost seven years of his life to false imprisonment because the police failed to disclose vital evidence to the defence.
Thanks to legal aid Sam was eventually able to overturn his conviction on appeal, even if he has yet to obtain compensation (a decision that was challenged at the Supreme Court on 8 May).
The Director of Public Prosecutions believes that there are no prisoners currently incarcerated as a result of non-disclosure in criminal cases – an assessment that strikes us as a little optimistic, to say the least.
In any case, the next Sam Hallam will probably be in an even less fortunate situation than he was. Less than one in ten people now qualify for Legal Aid, so many in Sam’s position in the future will struggle to secure the appeal that was so crucial to his freedom.
On top of that, funding cuts mean that legal aid payments for solicitors are lower than they were in the 1990s.
The result is a brain drain of young, committed barristers and solicitors from the profession that will make it harder than ever for people like Sam to find a defence lawyer to take on their case. And even if they succeed, that lawyer will have less time and capacity to devote to their defence.
Let’s hope that Parliament keeps people like Sam in mind when they vote tonight. We can no longer accept a system that is failing to offer access to justice for all.