Court upholds challenge to England & Wales legal aid cuts

Cuts to criminal legal aid fees in England & Wales relating to considering bulky documentary evidence have been ruled irrational and unlawful by the High Court.

Lord Justice Leggatt and Mrs Justice Carr in the Divisional Court upheld a challenge by the Law Society of England & Wales to the Criminal Legal Aid (Remuneration) (Amendment) Regulations 2017, which imposed what the Society argued amounted to a 37% reduction in fees.

The regulations amended the litigators' graduated fee scheme (LGFS), which applies to prosecutions in the Crown court, by reducing the cap on the number of claimable pages of prosecution evidence from 10,000 to 6,000.

Under the scheme, solicitors are paid a fixed "graduated" fee irrespective of the number of hours spent working on the case. Principal factors determining the fee are the nature of the offence charged, whether or not the defendant pleads guilty, the length of the trial if any, the number of defendants and the number of pages of prosecution evidence served.

The Lord Chancellor claimed the cap was reduced because of an earlier court decision had widened the circumstances in which electronic evidence could be counted towards the total, beyond what had been intended by the scheme. The Society argued that the consultation preceding the regulations was procedurally unfair, because the Ministry of Justice did not disclose the statistical analysis on which it had relied; it was irrational because it was based on manifestly erroneous assumptions; and the regulations constituted a disproportionate and unjustified interference with the right of access to justice protected by the common law.

The judges said that "no reason – let alone a good reason" had been given for not disclosing the analysis and its results. That had caused prejudice to consultees, as demonstrated by a subsequent report identifying "two serious flaws" in the analysis, which the court concluded was "a flawed analysis on which no reasonable authority would have relied".

Consultees were entitled to expect that a Government department undertaking a consultation would be "open and transparent", but the Ministry's failure to disclose the analysis made the consultation unfair.

"It is difficult to express in language of appropriate moderation why we consider these arguments without merit", the court said of the Lord Chancellor's case. "In short, the arguments advanced on behalf of the Lord Chancellor do not begin to justify the failure to disclose the key analysis relied on in making the decision. Instead, those arguments only serve to underline why its non-disclosure was unfair. We conclude that the failure to disclose this information was a fundamental flaw in the consultation process which made it so unfair as to be unlawful."

The flaws identified also made the decision irrational. However the Society had not established its ground based on access to justice.

The Society described the ruling as "a ray of light" for the justice system.

President Christina Blacklaws said the changes had meant huge amounts of work in complex cases going unpaid. "In the light of this ruling, we would urge the Government to restart discussions to try to formulate a revised approach to the LGFS that will remunerate lawyers fairly for the work they have to do."

The Ministry said it would "carefully consider the content of the judgment and determine next steps".

Click here to view the judgment.