High Court: Law Society secures win in legal aid row with government

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By Rhys Duncan on

Chancery Lane took action over failure to implement recommended fee rises

The Law Society has claimed victory in a dispute with the government over criminal legal aid fees.

The issue ruled upon by the High Court yesterday began back in 2021 when the government’s criminal legal aid independent review (CLAIR) recommended an increase in criminal legal aid fees of at least 15%.

Whilst this was eventually met for barristers in October 2022, solicitors only saw their fees rise by 11%. The Law Society then sought action against the government in March of last year.

Four points were raised by the the Law Society. The first argument, alleging a breach of the duty to provide criminal legal aid in accordance with section 1 of the Legal Aid, Sentencing and Punishment of Offenders Act, was rejected. Ground three, accusing the government of failing to provide adequate reasons for their actions, received the same treatment.

However, both ground two, that the Lord Chancellor acted irrationally, and four, that he breached his duty to make adequate enquiries, were found in favour of the Society.

The court held that, in failing to ask whether a fee increase below 15% would still deliver the aims and objectives of the review, the Lord Chancellor was acting irrationally. Furthermore, the Lord Chancellor’s failure “to undertake any modelling to ascertain whether the aims and objectives of the CLAIR report, in particular ensuring the sustainability of criminal legal aid, would be furthered if fee uplifts lower than the 15% recommended by the CLAIR report were implemented’ was also declared irrational.”

Law Society president Nick Emmerson said: “We may have won the court battle but it’s the public who will lose out in custody suites and courtrooms across the country unless the government takes immediate action to stop the exodus of duty solicitors from the profession. 1,400 duty solicitors have left since 2017 because the work is not financially viable.”

He continued:

“We are already seeing that there simply aren’t enough solicitors to represent suspects at police stations and magistrates’ courts day and night across the country. This situation will only get worse with potentially dangerous consequences for society. The imbalance between the defence and the prosecution will continue to grow and public trust in the criminal justice system will continue to fail.”

A Ministry of Justice spokesperson said: “While the claimants were successful on specific narrow grounds, the majority of their arguments were rejected by the court. We will consider the judgment carefully. Just this week we announced a consultation that would lead to £21m being invested in criminal legal aid solicitors. We expect our existing reforms to increase spending on criminal legal aid by up to £141m a year.”

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