Lord Chancellor’s decision not to fully fund legal aid for criminal defence solicitors was unlawful and irrational

In a landmark judgment handed down today, the Divisional Court (Lord Justice Singh and Mr Justice Jay) held that the Government acted unlawfully and irrationally when deciding not to implement the full funding recommendation in Lord Bellamy’s Criminal Legal Aid Review. The Court also confirmed a grim picture of a justice system which it said was “coming apart at the seams” and said that unless there is a “significant injections of funding” the justice system will soon be at the “point of collapse”.

The Criminal Law Solicitors Association (CLSA) and the London Criminal Courts Solicitors Association (LCCSA), represented by Adam Wagner of Doughty Street Chambers, were Interested Parties and fully supported the legal challenge by the Law Society to the Government response to Lord Bellamy’s Criminal Legal Aid Review.

Together with the Law Society, the CLSA and the LCCSA provided the Court with a large number of witness statements from solicitors up and down the country, at every level of seniority, describing the relentless, physically demanding and emotionally draining nature of criminal defence work and the chronic underfunding which has led to a crisis in the retention of solicitors who are leaving in their droves for better pay and conditions that can be found elsewhere.

Despite the Criminal Legal Aid Review recommending a 15% increase to solicitors fees as “no more than a minimum starting point”, it increased fees by only 9% with a further 2% promised this year.

The ruling today confirms that the Government response to the review was so flawed as to be unlawful and irrational. 

Lord Justice Singh and Mr Justice Jay described the evidence submitted by CLSA and LCCSA members alongside the Law Society as “a mass of convergent evidence from honest, professional people working up and down the country”, which is “cogent”, “impressive” and “compelling”, and which “brings home [that] 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 Court’s damning summary of this evidence paints a grim picture. The Judges said: 

“In short, the evidence from solicitors working at grass-roots level is that the system is slowly coming apart at the seams. The system depends to an unacceptable degree on the goodwill and generosity of spirit of those currently working within it. New blood in significant quantities will not and cannot be attracted to criminal legal aid in circumstances where what is on offer elsewhere is considerably more attractive both in terms of financial remuneration and other benefits. Unless there are significant injections of funding in the relatively near future, any prediction along the lines that the system will arrive in due course at a point of collapse is not overly pessimistic”.

The CLSA and LCCSA have now called on the Government to urgently implement Lord Bellamy’s full funding recommendation without delay, and before it is too late to save the country’s crumbling justice system. The Government is not seeking permission to appeal.

Adam Wagner was instructed by the CLSA and LCCSA who were Interested Parties in the case.  

The Law Society were represented by Tom de la Mare KC, Gayatri Sarathy and Emmeline Plews of Blackstone Chambers, instructed by John Halford of Bindmans LLP.

The Judgment is here.