Lord Carter published his initial Report entitled ‘Procurement of Criminal Defence Services: Market-based reform’ on Thursday 9th February 2006. It is now clear that it will not be until May 2006 (and probably the end of May) that we will really know whether the Carter Future is bright or not and any resulting changes in payment are likely to be introduced at or towards the end of 2006. The Criminal Bar has faithfully waited for Carter. I hope that such faith will receive the reward it deserves.
Lord Carter was tasked by the DCA in the summer of 2005 with creating a “Fairer Deal for Legal Aid” and in particular a fairer deal for criminal defence services. In the seven months between then and the initial Report being published Geoffrey Vos QC and his Carter Response Group have worked tirelessly on behalf of the profession. The work that they have put in has been remarkable in its extent and quality and whatever the final result nothing more could have been done. Their paramount concern has been and remains the fees paid to young and junior barristers for difficult and stressful work doing 1 – 10 day Crown Court cases. Geoffrey Vos QC and his team deserve much thanks for the work they have done so far and will do in the months to come.
At present it is only possible to say what the blueprint is, as far as criminal work is concerned. At the time that this article is being written and before it is published a vast amount of work will also be undertaken in relation to Family Legal Aid and Civil Legal Aid as well as negotiating proper payment for 1 – 10 day cases in the Crown Court.

Many who have read Lord Carter’s initial report find the language difficult to understand. So what does it all mean for us? The answer to that question is that we do not know for sure at present.
What is clear is that the Carter Review has been and remains a fundamental review of legal aid funding- nothing is sacred. However, it appears that the Bar has achieved a number of important safeguards for its survival. Barristers will be paid directly for Crown Court work nearly all of which will be remunerated under a graduated fee scheme. There will be a bidding system for VHCCs, which the Bar are likely to be able to work with.
It is important to remember that Lord Carter’s proposals will have a far greater impact on Solicitors who are likely to have to live with block contracting and (at long last) graduated fee payments for Crown Court work.
At present most members of the Criminal Bar are more concerned about the level of fees that will come from Lord Carter’s Review rather than the niceties of payment structures. However, concern has been expressed over two structural changes, which could or will alter the level of fees. The first concern is that there will be a single case fee in the Crown Court, which will require sets of Chambers or the individual barrister to be responsible for dividing the fee between those who actually undertake a number of hearings, if there is more than one person involved. The rationale for such a scheme is that it saves the high administrative costs created by individual payments. But it is obviously a matter of concern for the most junior practitioners who my committee and I represent. A protocol is being drafted to deal with the apportionment of the case fee and the Young Barristers’ Committee will do all that it can to ensure that the protocol is rigidly applied. I have some confidence that, as it will apply to all barristers in a set of Chambers, it will be possible to introduce and monitor such a system of payment. However, it will be necessary that all of us ensure that junior tenants are properly and speedily paid for the work that they do.
The second area of concern is price competition for Crown Court work for advocates, which is likely to be in place in three years time. That competition will be kept in check with a bottom line fee (some relatively small percentage less than the graduated fee) and the retention of direct payments to the advocate. In addition the reduction in price will apply equally to the advocate and the litigator. The aim of competition such as this must be to save money. On that basis the profession remains sceptical about how this will all work and many will want to see that the bottom line fee is appreciably higher than the fees which are paid now and which have been both frozen and cut in the last nine years.

In order to ensure the future of the profession and in order to ensure quality it is vital that Lord Carter’s final report applies what I call the two ‘Rs’ – redistribution and review.

Redistribution
There needs to be redistribution in the criminal legal aid budget from the very longest cases to the 1 – 10 day Crown Court Trials to make good the decade of frozen graduated fee rates. In the absence of such redistribution it is hard to see that barristers will want to continue doing their day job and quality will not remain at the high level required. It is notable that the Lord Chancellor supported the need for that redistribution in the House of Lords on 16th November 2005. Lord Carter has also made public statements supporting such redistribution. We have to hope that they are both as good as their word! If they are not then the future will be bleak indeed.

Review
The most fundamental flaw with the original graduated fee scheme was the absence of a review – annual or otherwise. The Bar has asked Lord Carter to recommend a regular payment review for the future. The Treasury will not, so we are told, guarantee RPI increases to anyone. However, it is absolutely vital that a Review structure is put in place, which can recommend regular increases to avoid the problems that have arisen over the last few years. Without such a structure in place many barristers will feel that any increases in rates achieved this year will be the subject of cuts in the future. Lord Carter must remember that one of his terms of reference is to “avoid frequent and piecemeal direct fees negotiations between the purchaser and individual sectors within the legal services market.”
Unfortunately redistribution and review are only part of the picture. The Bar needs assistance more broadly to ensure that the Criminal Justice System runs smoothly. Listing has to be dramatically improved to try to ensure that Trial Counsel can attend PCMHs and that Trials are listed so far as is possible for Counsel’s convenience. That will require a fundamental change of attitude by List Officers and Judges – who must also stop listing cases for endless mentions. Reform is also needed to ensure that Barristers and Solicitors can get to see their clients in prison when it is convenient and for long enough so that detailed instructions can be taken.

Tom Little Chairman of the Young Barristers’ Committee of the Bar Council