Criminal cases - Grant - Committal proceedings - Whether actions ultra vires

R (on the application of the Law Society of England and Wales) v Lord Chancellor: QBD (Admin) (Lord Justice Stanley Burnton, Mr Justice Treacy): 30 March 2012

In November 2010, the Ministry of Justice consulted upon a wide range of measures concerning changes to criminal and civil legal aid, including a proposed reform of criminal legal aid fees. An equality impact assessment was published with the consultation paper.

In June 2011, the government's response to the consultation was published and presented by the defendant lord chancellor to parliament. At the same time, the MoJ published an impact assessment. The claimant and the Bar Council were subsequently consulted on a draft order. On 18 August, the lord chancellor made the Criminal Defence Service (Funding) (Amendment) Order 2011, SI 2011/2065 (the order). The order, which came into effect on 3 October 2011, amended the Criminal Defence (Funding) Order 2007, SI 2007/1174, which was the principal delegated legislation prescribing how criminal legal aid work was remunerated. Article 25 of the order abolished the fee previously payable to legal representatives for 'committal proceedings'.

That incorporated all work undertaken in representing defendants in the magistrates' courts in either-way cases committed to the Crown court, up to and including the committal hearing. The result was that in such cases a solicitor who represented a defendant in an 'either-way' case in the magistrates' court that was committed to the Crown court, and who acted for him in that court, received only the fee previously payable for the Crown court proceedings alone. The claimant sought to challenge the lawfulness of the cut to criminal legal aid fees made by article 25 of the order and applied for judicial review.

The claimant contended, inter alia, first that it was ultra vires the power conferred by the Access to Justice Act 1999 for the lord chancellor to make an order that resulted in a litigator, instructed by a defendant to whom a right to representation had been granted by a court in the exercise of the power of that act, working for no remuneration. Such an order would be inconsistent with the duty imposed on the Commission by section 14(1) of the 1999 act to fund such representation. Second, the order was unlawful on the ground of irrationality. In respect of that ground, the claimant submitted, inter alia, that: the order had been made in the belief that the fee that had been abolished related to the hearing in the magistrates' court only; the lord chancellor had failed to take into account the risk of solicitors not acting in committal proceedings if the change made by the order took effect; and it was irrational for there to be equal remuneration for sent and committed cases.

Third, the purpose, or one of the purposes, of the abolition of the committal fee was to put pressure on legal representatives to advise their clients in either-way cases not to elect for trial in the Crown court. That was an improper purpose. Fourth, the lord chancellor had failed in his duty under section 149 of the Equality Act 2010. Consideration was given to section 25(3)(a) of the 1999 act. The application would be dismissed.

(1) The provisions of the order in issue were not ultra vires the 1999 act. The result of the order was that the fee formerly payable for the Crown court work alone covered both magistrates' court and Crown court work. The fact that the total fee had not been increased and that there was now no separate fee for the committal proceedings did not mean that the magistrates' court work was unremunerated. The remuneration was earned by both the work in the magistrates' court and that in the Crown court. There was no justification for an interpretation of the 1999 act that required a separate fee for any item or items of work, provided that work was part of a larger whole that was remunerated (see [37]-[39] of the judgment).

(2) The starting point had to be an assumption that the ministers and their legal advisers knew the statutory provisions with which they were dealing. On the evidence, it was not possible to establish that the lord chancellor, or the minister, or their civil servants were under a misapprehension as to the effect of the amendment. Further, it was clear that the lord chancellor had taken the risk of solicitors not acting in committal proceedings into account. Furthermore, it could not be found that the lord chancellor had not taken into account what section 25(3)(a) of the 1999 act had required him to take into account.

Finally, to provide equal remuneration for both kinds of case was not necessarily irrational nor did it in itself render the measure unlawful. The authorities relied upon by the claimant did not establish that to make equal provision for the remuneration of work involved in different cases was of itself unlawful (see [46], [47], [48], [51], [50], [62], [69], [71], [72] of the judgment).

(3) There was nothing in the consultation paper to justify the allegation of the claimant that the purpose, or one of the purposes, of the abolition of the committal fee was to put pressure on legal representatives to advise their clients in either-way cases not to elect for trial in the Crown court. The lord chancellor's purposes were of a lawful nature. To remove financial incentives favouring jury trial, or to create incentives for legal representatives to address issues as to plea and venue as early as possible, were considerations within the scope of the statutory power which expressly required the lord chancellor and the Legal Services Commission to seek value for money (see [76], [77], [78] of the judgment). 

(4) The claimant had not shown that there had been any breach of the section 149 duty. If a substantial withdrawal of legal representation for defendants in 'either-way' cases had been expected, that would have adversely affected the mentally disabled and the non-English speaker more than other groups. However, the MoJ had taken account of the need to maintain legal representation, and had not considered that there would be a lack of legal representation in committal proceedings (see [83], [84] of the judgment).

Sam Grodzinski QC and Helen Law (instructed by Bindmans) for the claimant; James Eadie QC and Jason Coppel (instructed by the Treasury Solicitor) for the lord chancellor.