The Law Society have successfully taken the government to court over their decision not to raise criminal legal aid fees by the minimum 15% recommended in the independent criminal legal aid review.
The body was successful in its claim that the former Justice Secretary, Dominic Raab, had acted unlawfully when making a decision to raise fees to the recommended level.
In 2022, the government awarded solicitors an 11% increase, falling short of an independent review recommendation by the Criminal Legal Aid Review which found that pay should be increased by a minimum of 15%.
In the judgement, Lord Justice Singh and Mr Justice Jay said the Lord Chancellor had acted irrationally by failing to ask whether giving solicitors less would still meet the independent review’s objectives.
The judgment also stated the Lord Chancellor had not met his legal duty to ensure there was a proper investigation of all of the evidence provided.
Legal Aid pays lawyers in Wales and England to represent those who cannot pay for legal advice themselves. The judges heard evidence of a system which ‘is slowly coming apart at the seams’ to a potential ‘point of collapse’. According to the Law Society, over 1,400 duty solicitors have quit since 2017 over the long-frozen legal aid rates.
The Law Society has been backed by the Criminal Law Solicitors Association and the London Criminal Courts Solicitors Association, which filed 22 witness statements that described working conditions as ‘degrading’ and ‘demoralising’.
The decision has also been supported by the Association for Prison Lawyers, who said the rate of pay for prison law work has decreased by 35% since 2011 when you take inflation into account.
The judges said on Wednesday: ‘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.’
The judgment does not overturn the 11% increase but places pressure on the Ministry of Justice to reconsider the level of funding for legal aid. This has led to a decrease of 85% of the number of providers of legal aid prison law work since 2008.
Nick Emerson, the Law Society President, quoted in the Law Society Gazette, 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.’
A Ministry of Justice spokesperson responded, ‘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.’