The Law Society of England and Wales has issued an ultimatum to the government regarding its decision not to increase legal aid rates for criminal defence solicitors, calling on the Lord Chancellor to increase current fares or face a judicial review.
As previously reported by The Justice Gap, an independent review carried out by Sir Christopher Bellamy QC in 2021 proposed a ‘bare minimum’ increase of ‘at least 15%’ to criminal legal aid funding for solicitors and barristers in light of endemic issues surrounding the resilience and sustainability of the criminal justice system arising from the lack of investment. In pre-action correspondence sent to the government, the Law Society argued that the Lord Chancellor’s decision-making in relation to the renumeration of criminal defence solicitors following the review was irrational and unlawful in light of its inconsistency with the constitutional right of access to justice.
Lubna Shuja, the current president of the Law Society, said in a statement yesterday: ‘We argue the lord chancellor’s decision not to remunerate solicitors by the bare minimum 15%, which the independent review said was needed immediately over a year ago to prevent the collapse of the criminal defence sector, is unlawful, as is the decision not to take action to address the risk of local market failure.’
‘We are seeking a commitment by the government to withdraw both decisions and reconsider them within a mutually agreed timetable. If not, we will issue a judicial review seeking an order to quash them.’
The lack of action surrounding reforms to criminal legal aid rates has served as a sore point for legal practitioners. Last October, the Criminal Bar Association voted to accept the government’s offer to increase their rate of renumeration by 15% and extend this to cover many cases already in the courts. The CBA had initially demanded a 25% increase in legal aid fees, warning that ‘the criminal justice system remains chronically underfunded.’
Meanwhile the Law Society has routinely highlighted cracks elsewhere in the criminal defence profession and, in particular, the number of firms contracted to provide criminal defence services. As of August 2022, there were just 1,058 firms holding a criminal legal aid contract compared with 2,010 in October 2007. The group also noted a ‘deepening’ crisis in the provision of free advice to people detained by the police who have a right to a solicitor, with the number of duty solicitors and firms falling by 9.4% and 5.4% respectively between the October 2022 rota and the previous rota.
Stephanie Boyce, the then-president of the Law Society, described 2022 as a ‘make-or-break year for the future of the beleaguered criminal justice system.’
‘We are continuing to see the decline of the criminal defence profession and even more duty schemes across the country are reaching the point of collapse. There is no significant body of new firms looking to enter or expand into this market.’
