Issued: 3 August 2018
Once again the MOJ's ill thought out plans to further cut rates on certain types of work have hit the rocks. Today's judgment in the High Court makes it clear that the Ministry of Justice consultation on the recent PPE was flawed due to the fact a key analysis was withheld which, it was argued showed the argument that post-Napper LGFS expenditure had increased (being the justification for the cut) was flawed and incorrect.
These latest cuts were introduced by the MoJ after a swift consultation in which 97% of the responses urged the Government to think again. Those responses were ignored and today the High Court has ruled that the Government was wrong to do so because ‘the Decision implemented by the 2017 Regulations was unlawful because the key analysis relied on in making the Decision (1) was not disclosed to consultees, rendering the consultation process unfair, and (2) used methods that were statistically flawed, making it irrational to rely on the analysis’.
In a scathing judgment the Court commented on ‘another claim for judicial review of a decision by the Lord Chancellor to reduce the amount of money made available as legal aid for defending people accused of crimes’ and in response the Lord Chancellor’s arguments resisting the Judicial Review said this :
“It is difficult to express in language of appropriate moderation why we consider these arguments without merit.”
In its report into Legal Aid, the Justice Select Committee said that it was regrettable that the Bar had seen fit to take industrial action, and solicitors’ legal action. They urged the Lord Chancellor to resolve these proceedings. We agree entirely with that sentiment. It is disappointing and unfortunate that the Bar has been forced to take action on 3 occasions (on each occasion they have obtained concessions and the investment of further resources) and solicitors have had to resort to Judicial Review proceedings. We have throughout offered to meet to discuss our concerns with the government, and remain open to providing the government with the detail as to the challenges facing our Criminal Justice System and access to justice for the poorest in our society.
We now urge the MoJ to put the brakes on any further plans to cut legal aid rates. What the system needs now, before it finally collapses, is an injection of cash to stop the rot. Not just the cash injection being made at present into the already-floundering court digitalisation programme, but investment into the system, the courts, rates of pay for court staff, police, probation, Prison Service, CPS and defence.
We have repeatedly warned the government of the dangers of the constant cuts to the legal aid system, described as ‘Salami slicing’. Time and again we have been ignored. Legal Aid provider numbers are down almost 25%, recruitment is at an all-time low, the average age of a legal aid crime solicitor is approaching 50 and people are leaving the profession in droves. We are facing a financial and recruitment crisis, with many areas predicted to have no practitioners within 5-10 years due to the average age of lawyers in those areas. It will cost far more to rebuild the system after its inevitable collapse that it will to address the problems now, without delay.
We urge the Lord Chancellor to meet with representative bodies as a matter of urgency and to listen to what those at the coal face, with the welfare of the Criminal Justice System foremost in their hearts, have to say. We commend the recent report by the Justice Select Committee to the Lord Chancellor – it is time for an independent review of the legal aid system and an independent annual review of rates.
It has been noted that on the three occasions the Criminal Bar has taken action, the government has responded with an injection of money. If the signs are that Criminal solicitors must also take action before the government will listen, then so be it, but we would rather meet and negotiate.
The CLSA would very much like to thank The Law Society for leading this challenge on behalf of the profession. Without their resources, the profession would simply have been unable to make the challenge. Our thanks also go to Richard Miller, Head of Justice, at TLS for all his hard work in this case and of course we would never forget to thank the hard work and dedication of the Bindmans' legal team, led by John Halford. Finally, our thanks also to Dinah Rose QC for all her hard work both in and out of Court.
Notes to Editors:
The CLSA is an independent organisation representing lawyers in England and Wales. Its members specialise, often exclusively, in criminal defence litigation. Its members are defenders in the large majority, but it has prosecutors and court clerks in its membership.