High Court Analyzes Access to Justice and Legal Aid Duties in Law Society v Lord Chancellor Case

Citation: [2023] EWHC 3067 (Admin)
Judgment on

Introduction

In the recent judicial review case of the Law Society of England and Wales v The Lord Chancellor and Secretary of State for Justice, the High Court engaged with crucial principles of administrative law, pertaining to the right of access to justice and the adequate provision of criminal legal aid. The case centred around the Lord Chancellor’s decision-making process concerning the recommendations made in the Independent Review of Criminal Legal Aid (Bellamy review), with the Law Society challenging said decision on several legal grounds. This analysis will primarily dissect the key legal principles as applied in the judgment, delivered by Fordham J.

Key Facts

The case arose from the Lord Chancellor’s November 2022 decisions in the Government Response to the Criminal Legal Aid Independent Review and his subsequent Consultation on Policy Proposals. The Law Society contended that the Lord Chancellor failed to implement two critical recommendations from the Bellamy review concerning intervention in areas of unmet legal aid need and remuneration levels. This challenge was granted permission by May J, and additionally, permission was accorded by Jay J to rely on expert evidence. At the core of this dispute was the voluminous documentation and witness evidence present, which led to various applications for amendments, specific disclosure, and the admittance of witness evidence.

Several legal principles are pivotal in this case:

Ground (1) relied upon the common law right of access to justice and the breach of Section 1 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012. The Law Society argued that the non-implementation of Bellamy’s recommendations posed a real risk to effective legal representation for criminal defendants.

The Tameside Duty of Inquiry

A new ground was sought to be introduced by the Law Society, the so-called Tameside duty (derived from Secretary of State for Education and Science v Tameside MBC [1977] AC 1014). The accusation was that the Lord Chancellor failed to conduct a legally sufficient inquiry before making his decisions, particularly with regard to monitoring the provision of criminal legal aid services.

Substantive Reasonableness

Grounds (2) challenged the reasonableness of the decision-makings, such as the adequacy of remuneration and interventions. These were predicated on established principles that public body decisions should not be unreasonable or irrational in the sense described in Associated Provincial Picture Houses v Wednesbury Corp [1948] 1 KB 223.

Duty to Give Reasons

Ground (3) was based on the public law principle that there must be legally adequate reasons for rejecting the two core recommendations from the Bellamy review.

Amendment of Pleadings

Permission to amend pleadings was dealt with in light of case law that recognizes the balance between procedural rigour and substantive justice (R (Wingfield) v Canterbury City Council [2019] EWHC 1975 (Admin)).

Duty of Candour and Disclosure

The case addressed the judicial review duty of candour in regards to the Lord Chancellor’s disclosure of documents, a principle that ensures transparency and fairness in judicial review proceedings. Both requests for specific disclosures were granted based on this duty, echoing the principles endorsed in Tweed v Parades Commission for Northern Ireland [2006] UKHL 53.

Outcomes

Fordham J granted all requested amendments to the pleadings and specific disclosure applications. He held that these amendments were arguable, derivative in nature (building on information disclosed during the judicial review), and necessary for a just adjudication of the real disputes. Furthermore, the Law Society was permitted to adduce new evidence, where Miller 2 was allowed as themed commentary, albeit with cautionary regard to its weight and relevance during the substantive hearing, reinforcing the principle from cases like Flaxby Park Ltd v Harrogate Borough Council [2020] EWHC 3204 (Admin).

Conclusion

The judgment showcases a balancing act between ensuring procedural rigor in judicial review and allowing substantive disputes to be fully aired and adjudicated. Fordham J’s detailed analysis reflects the emphasis on fair trial rights, the duty to give reasons, the due inquiry before decision making, and the fundamental right of access to justice. The implications for legal professionals extend beyond this individual case, potentially impacting the broader legal aid landscape and the administration of justice within the UK’s criminal legal system.

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