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31 January 2024

The Law Society succeeds in its judicial review claim against ‘irrational’ Legal Aid decision making by the Lord Chancellor

4 mins

The case arose from the recommendations made by Sir Christopher (now Lord) Bellamy KC in his review of the sustainability of Criminal Legal Aid work. The Law Society decided to take action after the Lord Chancellor refused to increase solicitors’ criminal legal aid payment rates by the ‘minimum’ 15% Lord Bellamy and his team had recommended.  

Today the High Court held that the Lord Chancellor’s failure during the decision-making process to ask whether fee increases at lower levels than the recommended amount would deliver the aims and objectives of the CLAIR Report, was irrational and breached his Wednesbury duty. Lord Justice Singh and Mr Justice Jay, noted at paragraph 236 of the judgment: ‘Lord Bellamy’s concern was to ensure that a minimum £100 million per annum would be injected into criminal legal aid’ and the Lord Chancellor ‘never sought to address the ramifications of that shortfall and ask the obvious question whether the central objective of Lord Bellamy’s report (sustainability) would be achieved’. In relation to Ground 4, the Court held the Lord Chancellor’s failure to undertake any modelling to ascertain whether the aims and objectives of the CLAIR Report, was also ‘irrational’ and the Court had ‘little hesitation in concluding that the Lord Chancellor failed in his Tameside duty’ (paragraph 210).

Notably, the judgment observes that the ‘compelling‘ and ‘impressive‘ evidence submitted by the Law Society, along with Criminal Law Solicitors Association and London Criminal Courts Solicitors Association members, illustrated that ‘the (criminal justice) system is slowly coming apart at the seams. The system depends to an unacceptable degree on the goodwill and generosity of spirit of those currently working within it. New blood in significant quantities will not and cannot be attracted to criminal legal aid in circumstances where what is on offer elsewhere is considerably more attractive both in terms of financial remuneration and other benefits. Unless there are significant injections of funding in the relatively near future, any prediction along the lines that the system will arrive in due course at a point of collapse is not overly pessimistic’ (paragraph 176).

The High Court Order requires the Lord Chancellor to reconsider his decision on the amount of funding needed to achieve the aims of CLAIR, with further modelling and up to date information. The Government has confirmed that it will not be seeking permission to appeal.

Verity Cannell, solicitor in Bindmans’ Public Law and Human Rights Team, and lead Solicitor for the Claimants said today:

Access to Criminal Legal Aid is critical for ensuring that everyone has equal access to justice and the right to a fair trial. In his comprehensive review into the Criminal Legal Aid system in 2021, Lord Bellamy said in no uncertain terms that funding for Criminal Legal Aid needed a minimum 15% increase and without delay. Today the High Court has ruled that the Lord Chancellor’s failure to implement that increase was irrational.

The evidence from practitioners across the board illustrates bleak working conditions for those that remain in the profession and worrying knock-on effects for suspects who are in need of legal representation. We hope that today’s Judgment will act as a loud wakeup call to the Government to take urgent steps in rebuilding the Criminal Legal Aid system which is, as the Court said, ‘coming apart at the seams’ and functioning only because of solicitors’ stoic commitment to access to justice.

The judgment can be found here.

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