High Court rules in favor of Law Society in legal aid funding dispute

Citation: [2024] EWHC 155 (Admin)
Judgment on

Introduction

The case of Law Society of England and Wales, R (on the application of) v The Lord Chancellor represents a multifaceted dispute concerning the adequacy of funding for criminal legal aid solicitors in England and Wales. The Law Society challenged the Lord Chancellor’s response to the ‘Criminal Legal Aid Independent Review’ (CLAIR) Report, specifically concerning the sufficiency of funding increases and the alleged failure to address unmet needs in legal aid. This article analyzes the decision of the High Court of Justice, which involved the interpretation and application of several legal principles fundamental to administrative law and judicial review.

Key Facts

The Law Society contended that the Lord Chancellor breached his statutory duty under the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) by failing to ensure adequate legal aid provision (Ground 1) and breached his duties of rational decision-making (Ground 2) and sufficient inquiry (Ground 4). Additionally, the Society argued that the Lord Chancellor failed to give adequate reasons for his decisions (Ground 3).

The claims arose in the context of CLAIR’s recommendation for an increase in funding for criminal legal aid by at least £100 million per annum—an overall 15% rise identified as necessary to ensure the sustainability of legal aid services (the Central Recommendation). The Lord Chancellor accepted many of the CLAIR recommendations but implemented a lower increase, leading to this judicial review.

The Court’s analysis centered on several legal principles:

  1. Duty to Secure Legal Aid (LASPO, Section 1): The Lord Chancellor is statutorily obliged to ensure legal aid is made available in accordance with LASPO.

  2. Rationality and Irrationality (Wednesbury Unreasonableness): The Lord Chancellor’s decisions must fall within the range of reasonable decisions that a decision-maker could make. A decision is irrational if it is so unreasonable that no reasonable authority could ever have come to it.

  3. Duty of Sufficient Inquiry (Tameside duty): The Lord Chancellor must take reasonable steps to acquaint himself with the relevant information necessary to answer the right questions effectively.

  4. Duty to Give Reasons: The Lord Chancellor must provide adequate reasons for his decisions, especially when significant interests are involved.

  5. Access to Justice (Article 6 ECHR): The decisions must also align with the constitutional right to access to legal representation when facing criminal charges.

Outcomes

The Court found partially in favor of the Law Society. Specifically:

  • Ground 1 (Duty to Secure Legal Aid): The Law Society failed to show that the decrease in fee increases constituted a breach of the Lord Chancellor’s LASPO Section 1 duty.

  • Ground 2 (Irrationality): The Law Society’s alternative formulation of Ground 2 was accepted. The Court found it irrational that the Lord Chancellor failed to ask whether fee increases lower than 15% could still deliver the aims of the CLAIR Report, constituting a breach of the Lord Chancellor’s duty.

  • Ground 4 (Duty of Sufficient Inquiry): The Court found that the Lord Chancellor breached his Tameside duty by not considering further financial modelling on increases lower than 15%.

  • Ground 3 (Duty to Give Reasons): The Court found that this ground did not add anything substantive to the Law Society’s case and was not upheld as a separate ground.

The Court granted a declaration reflecting the findings on Grounds 4 and 2.

Conclusion

The High Court’s ruling in Law Society of England and Wales, R (on the application of) v The Lord Chancellor illustrates the crucial balance that must be struck between administrative discretion and the need for rational decision-making grounded in sufficient inquiry. The case underscores the importance of access to justice as a guiding principle for decisions affecting the provision of legal aid, thereby safeguarding the rights of individuals facing criminal proceedings. The judgment serves as a reminder for public law decision-makers to rigorously interrogate the implications of not fully implementing recommendations, especially when these have been accepted in principle and pertain to fundamental public services like legal aid.

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