MoJ should rethink legal aid funding or risk judicial review

In January 2023, we sent a pre-action letter to UK government challenging its decision-making as unlawful and irrational.

“We argue the lord chancellor’s decision not to remunerate solicitors by the bare minimum 15% recommended by the government's own independent review is unlawful,” said our president Lubna Shuja.

The same can be said for the decision not to take action to address the risk of local market failure.

We're asking the government to withdraw both decisions and reconsider them within a mutually agreed timetable.

If not, we will consider whether it's appropriate to issue a judicial review seeking an order to quash them.

“We argue both decisions are irrational and inconsistent with the constitutional right of access to justice,” added Lubna Shuja.

We have also invited the government to agree to mediation, conducted by an appropriately experienced senior lawyer or former judge.

Ignoring its own review

Lord Bellamy’s report rightly focused on the resilience and sustainability of the crisis-hit criminal justice system.

The system is clearly collapsing due to inadequate levels of government investment, as shown by:

• huge court backlogs
• the crumbling court infrastructure
• the lack of judges and lawyers
• duty schemes on the brink

“The government is choosing to ignore the economic advice and analysis which Lord Bellamy’s review team painstakingly produced, using data the government itself supplied. Instead, the government is implementing policies that run against the rationality of the review it commissioned and accepted,” said Lubna Shuja.

“Criminal defence solicitors provide an essential service within that system but they simply won’t be there if the profession is not economically viable – and the government’s decisions mean it will not be,” said Lubna Shuja.

Irrational policy-making under scrutiny

The current policy will have wide consequences for:

• small businesses operating in the criminal defence sector
• the criminal justice system as a whole
• thousands of victims and defendants seeking justice

“What is so frustrating is that a rational policy path was identified in Lord Bellamy’s comprehensive review and largely accepted, including 15% for barristers, but then the key recommendation affecting solicitors – who were viewed as being in the most ‘parlous state’ – was rejected.

“The lord chancellor failed to provide any reasons for ignoring that key recommendation even though there was a legitimate expectation that such reasons would be given. Without reasons, we can only conclude that decision is irrational.”

Ministers are not taking the crisis seriously enough

"Solicitors are basically thinking this government is not taking this seriously. Why are we wasting our time?"

On Tuesday 17 January, our president Lubna Shuja gave powerful evidence on the crisis-hit criminal justice system to the Justice Committee on the future of legal aid.

Watch the full session