The Government acted unlawfully when it opted not to deliver a recommended “bare minimum” 15 per cent hike in Legal Aid rates for criminal defence solicitors, the High Court has ruled.
Solicitors warned that the justice system is “terminally broken” and set to “wither beyond repair” without proper funding, as they brought Judicial Review proceedings.
In 2021, Lord Christopher Bellamy KC delivered an independent review to the Ministry of Justice which recommended at least a 15 per cent increase in Legal Aid rates.
Yet the final deal for solicitors was a nine per cent increase in funding, with a further two per cent to follow.
At the High Court on Wednesday, Lord Justice Singh and Mr Justice Jay concluded former Justice Secretary Dominic Raab had acted unlawfully by failing to investigate the state of criminal Legal Aid before deciding on the new pay structures.
His decision-making was branded “irrational”, and the Ministry of Justice (MoJ) now faces fierce pressure to revisit Legal Aid fees for solicitors working in the criminal justice system.
The judges also ruled that MoJ officials did not breach their duty in failing to increase the fees to the suggested 15 per cent.
During the Judicial Review brought by the Law Society of England and Wales, the court heard evidence of shortages of Legal Aid solicitors representing defendants at magistrates court hearings and during police station interviews.
The judges said they had heard an “impressive, compelling body of evidence” from solicitors at grass-roots level, who said the “system is slowly coming apart at the seams”.
“The system depends to an unacceptable degree on the goodwill and generosity of spirit of those currently working within it," the ruling continued.
“New blood in significant quantities will not and cannot be attracted to criminal legal aid in circumstances where what is on offer elsewhere is considerably more attractive both in terms of financial remuneration and other benefits.
“Unless there are significant injections of funding in the relatively near future, any prediction along the lines that the system will arrive in due course at a point of collapse is not overly pessimistic.”
The judges said the evidence presented by the Law Society “falls short of showing that the system either is or will imminently be inherently defective”, and concluded that duty solicitors are “just about managing”.
In the ruling, the court found Mr Raab and the department he then led had failed to carry out modelling to determine the effects of a fees increase below the recommended 15 per cent.
“We are delighted the High Court has recognised that then Lord Chancellor, Dominic Raab’s decision was irrational,” said Law Society of England and Wales president Nick Emmerson.
“We may have won the court battle but it’s the public who will lose out in custody suites and courtrooms across the country unless the government takes immediate action to stop the exodus of duty solicitors from the profession.
“1,400 duty solicitors have left since 2017 because the work is not financially viable.
“We are already seeing that there simply aren’t enough solicitors to represent suspects at police stations and magistrates’ courts day and night across the country. This situation will only get worse with potentially dangerous consequences for society.
“The imbalance between the defence and the prosecution will continue to grow and public trust in the criminal justice system will continue to fail.”
The Law Society has called on the Government to commit to Lord Bellamy’s 15 per cent rates rise for solicitors, which he said at the time was the “bare minimum needed”.
The peer, who has since become a Justice Minister, said in 2021 that the fees uplift needed to happen as soon as possible.
Criminal Law Solicitors Association chair Daniel Bonich called Wednesday's ruling "hugely significant", adding: "We are an aging and endangered species and without significant investment we will become extinct rather abruptly.
"Without us, the Police and the Courts cannot function, denying justice for defendants, witnesses, and victims. The Government needs to act now to avert disaster."
A Ministry of Justice spokesperson said: “While the claimants were successful on specific narrow grounds, the majority of their arguments were rejected by the Court. We will consider the judgment carefully.
“Just this week we announced a consultation that would lead to £21 million being invested in criminal legal aid solicitors. We expect our existing reforms to increase spending on criminal legal aid by up to £141 million a year.”
