The speaker of the House of Commons has criticised an ‘unhealthy’ situation regarding changes to the Advocates Graduated Fee Scheme (AGFS), claiming that the government’s failure to allocate a slot to debate the proposals does not help build an ‘atmosphere of trust’. Changes to the fee scheme triggered the current barristers’ boycott of new legal aid work, which is bringing chaos to criminal courts around the country. 

Speaking yesterday during parliamentary points of order, John Bercow MP said it was a ‘regrettable state of affairs’ that the government had failed to provide a time for a debate and vote on the Criminal Legal Aid (Remuneration) (Amendment) Regulations 2018, which implement the fee reforms. The revised scheme, which went live on 1 April, was passed under a negative procedure statutory instrument (SI) on 23 February. Such instruments become law without debate unless they are challenged.

MPs can table a ‘prayer’ against an SI in the form of an early day motion (EDM) after which the government typically, but is not obliged to, allows for a vote. 

In this case an EDM sponsored by shadow justice secretary Richard Burgon and Labour leader Jeremy Corbyn was tabled on 22 March. Shadow leader of the House Valerie Vaz also raised the matter on 29 March and 19 April.

Burgon said yesterday: ‘I understand that under the procedure, the instrument can be annulled only if such a motion is agreed by the house within 40 days of the regulation’s being laid. That period has now expired.’

Responding, Bercow said: ‘What I can say with some confidence is that such a circumstance is unusual and, indeed, in terms of the smooth running of the house and the existence of a basic atmosphere of trust between the usual channels, it is unhealthy for such situations to occur.’

Instead of a debate, a motion to revoke the regulations will now have to be tabled. However, even if the motion is agreed, it would not have direct statutory effect. The Gazette understands that, had a debate been allowed the revised AGFS scheme could have fallen, given cross-party concern about legal aid cuts. According to parliament’s website, a negative instrument has not been annulled in the House of Commons since 1979.

During justice questions today, justice secretary David Gauke said he thought that the government was waiting for more information from Labour before calling for the debate. He added that the reforms to AGFS were worked out with the help of the Criminal Bar Association and Bar Council and that it was important to ensure legal aid funds are distributed in the correct way.

Both the CBA and the six bar circuit leaders have requested an 'urgent meeting’ with government officials to discuss the fee reforms.