Awarding a 15% fee uplift to existing criminal legal aid cases poses no legal problems, the government has conceded following the threat of litigation.

A controversial 15% fee uplift coming into force in September will apply only to new representation orders from October. The then justice minister James Cartlidge told MPs earlier this month that there were ‘huge legal questions’ about backdating the fee increase to existing work.

With the Crown court backlog hovering around the 60,000 mark, the Criminal Bar Association says its members will not see the benefit of any fee increase until late 2023 at the earliest.

Mishcon de Reya was instructed to challenge the government’s position and a letter before action was sent to the Ministry of Justice earlier this month. Last night, the CBA claimed ‘legal victory’ after the government conceded there was no legal impediment to increasing fees on existing representation orders.

Responding to Mishcon’s letter, the Government Legal Department said it ‘accepts the position that legal issues do not form a material impediment to increasing fees for future retained work’.

The government agreed that the advocates graduated fee scheme does not create a contractual relationship between barristers and the Legal Aid Agency. ‘Our client has never sought to suggest otherwise. We note that you rely on the statement of the chair of the Bar Council and not anything said directly by the lord chancellor or other ministers.’

While the government accepted the lord chancellor has the power to increase fees for future retained work, ‘for the avoidance of doubt, we do not consider that this is the case for work that has already been carried out’.

Regulations to be laid shortly introducing the fee increase will not apply to future retained work due to the ‘significant operational issues that this would entail and the financial resources it would require’, the GLD said.

The CBA hailed the government’s response as an important victory. ‘Whether government is in fact willing to apply any fee increase to existing representation orders is, of course, a political decision. That is why the pressure that you have exerted through our combined action continues to be so critical,’ its members were told.

Criminal bar chiefs also had a ‘constructive’ meeting with newly appointed justice minister Sarah Dines MP yesterday.

‘Given the significant concession on the law made by the MoJ, we have urged the minister to obtain confirmation that government will apply any increase in fees to all existing cases in the backlog by finding the requisite funding without delay,’ the association said.

‘The minister is also aware that the current CBA action will continue unless and until there is some substantial movement from government.’

The association will meet senior civil servants from the MoJ tomorrow.

Meanwhile, Tory leadership hopeful Nadhim Zahawi, appointed chancellor last week, pledged to put more criminals behind bars, ‘including by the way paying criminal barristers properly’ in an interview with BBC Breakfast.