The Ministry of Justice has been roundly criticised by High Court judges who ruled today that controversial legal aid cuts were unlawful. In a case brought by the Law Society the court quashed new regulations cutting payments for document-heavy Crown court cases, which the Society argued amounted to a 37% reduction in fees.
In The Law Society, R v The Lord Chancellor, the 2017 regulations were deemed unlawful because the key analysis relied on in making the decision was not disclosed to consultees, rendering the consultation process unfair. Judges said the new regulations used methods that were statistically flawed, making it irrational to rely on the analysis.
Under reforms to the litigators’ graduated fee scheme (LGFS), which remunerates litigators for Crown court work, the Ministry of Justice has capped the number of claimable pages of prosecution evidence (PPE) at 6,000 rather than 10,000.
In judgment, Lord Justice Leggatt and Mrs Justice Carr DBE concluded that the calculation was ‘a flawed analysis on which no reasonable authority would have relied’.
The judgment says consultees were entitled to expect that a government department undertaking a consultation would be ‘open and transparent’, but the MoJ’s failure to disclosure statistical analysis underpinning its decision made the consultation unfair.
The Law Society, which challenged the government’s decision to cut fees, today said the ruling was a ‘ray of light’ for the justice system.
Society president Christina Blacklaws said the changes introduced in December meant huge amounts of work on the most complex Crown Court cases had gone unpaid. Practitioners who made relevant claims under the 2017 regulations are advised to immediately apply for redetermination.
Blacklaws added: ‘In the light of this ruling, we would urge the government to restart discussions to try to formulate a revised approach to the LGFS that will remunerate lawyers fairly for the work they have to do. We as the Law Society stand ready to help the government to this.’
Lord Justice Leggatt and Mrs Justice Carr DBE heard submissions from Blackstone Chambers’ Dinah Rose QC, instructed by John Halford at Bindmans LLP representing the Society, and Brick Court Chambers' Martin Chamberlain QC, representing the Lord Chancellor.
In a statement following the judgment, a spokesperson for the MoJ said: 'Defence solicitors do valuable work. The changes we made to the LGFS scheme were intended to ensure payments better reflect the work being done in legal aid-funded criminal proceedings. We will carefully consider the content of the judgment and determine next steps.’