Government response to legal aid review unlawful, High Court rules

Parts of the Government’s response to an independent review into the criminal legal aid system were unlawful, the High Court has ruled.

The Law Society of England and Wales took ministers to court after they did not increase the rates criminal defence solicitors receive for legal aid work by a “bare minimum” of 15% as recommended by the 2021 review by Lord Christopher Bellamy KC.

At a hearing in London, the professional body for solicitors previously claimed the decision to instead increase the funding by 9%, followed by a further 2% rise in 2024, was unlawful.

In a ruling on Wednesday, Lord Justice Singh said officials did not breach their duty to provide a criminal defence service in failing to increase the fees to the suggested 15%.

However, the judge, sitting with Mr Justice Jay, said the decision to not obtain further financial evidence about the impact of increasing fees less than the recommendation was unlawful.

The court also found the Government unlawfully failed to ask whether lower fee increases “would, or might, still deliver the aims and objectives” of the independent report.

The judges said: “In our judgment, the Lord Chancellor’s reasons for not carrying out any further modelling on the basis of uplifts lower than the 15% recommended… do not bear scrutiny.”

A three-day-hearing in December was told there is a risk the legal aid system – which pays for representation during police investigations and in court for suspects who cannot afford it – “will fail to meet basic needs of representation” and is “terminally broken”.

Judges heard standard fees for solicitors in magistrates’ courts and police stations are “often loss-making” and there is an “acute” issue of people having to represent themselves in magistrates’ courts.

Lord Justice Singh and Mr Justice Jay received written evidence from several criminal defence solicitors about their working conditions.

In Wednesday’s ruling, they said: “What this impressive body of evidence brings home is the women and men working up and down the country at all hours of the day and night, in difficult and stressful circumstances, carrying out an essential service which depends to a large extent on their goodwill and sense of public duty.”

Lawyers for the Ministry of Justice, which had defended the claim, said the fee increase figure was a “high-level, political decision”.

Sir James Eadie KC said the fee rise was “the largest increase in funding for criminal legal aid for over 10 years” and also included plans for “systemic reform” of fee schemes.

The barrister also said the decisions made were not “obstacles” that affected people entitled to legal aid.

Following the ruling, Law Society president Nick Emmerson called on the Government to implement the full recommendations of Lord Bellamy’s report.

He said: “We are delighted the High Court has recognised that then Lord Chancellor Dominic Raab’s decision was irrational.

“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.

“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 ruling was also welcomed as “hugely significant” by the Criminal Law Solicitors’ Association.

The body’s chair Daniel Bonich said: “We are an ageing and endangered species and without significant investment we will become extinct rather abruptly.

“Without us, the police and the courts cannot function, denying justice for defendants, witnesses, and victims. The Government needs to act now to avert disaster.”

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 £21 million being invested in criminal legal aid solicitors.

“We expect our existing reforms to increase spending on criminal legal aid by up to £141 million a year.”