Judicial review: fighting for the future of criminal justice
Law Society wins High Court battle
The High Court has ruled in the Law Society’s favour in our judicial review against the Ministry of Justice.
Evidence from our members showed “the system is slowly coming apart at the seams”. Now, the government must rethink its irrational decision on criminal legal aid funding before the system collapses.
The court will give its ruling in the new year.
We are fighting for fair funding and to safeguard everyone’s right to independent legal advice at all stages of the criminal justice process.
Everyone has the right to legal advice if they are arrested. That right is under threat without enough duty solicitors to cover police station interviews across England and Wales.
Fee cuts have led to people leaving the system and made criminal practice unsustainable.
Fewer and fewer duty solicitors are available to help due to cuts to legal aid fees. More than 1,400 duty solicitors have left since 2017 – a 26% drop.
We’re proud to show our support for criminal practitioners by seeing this case through to a final hearing.
Why we've taken the government to court
Our judicial review has shone a spotlight on the decision-making process in the Ministry of Justice (MoJ) under a previous lord chancellor, Dominic Raab.
After years of under-funding, the independent review on criminal legal aid was an opportunity for the MoJ to make sure our justice system works for everyone in society for years to come.
The government's own independent review of criminal legal aid in 2021 said that businesses were on a knife edge. It called for a 15% increase in solicitor fees as soon as possible with "no scope for further delay".
However, Dominic Raab chose to award solicitors initially just 9% (a real-terms cut to legal aid rates).
By ignoring the recommendations of the independent review, we believe the MoJ’s decision was:
- irrational
- lacking evidence-based reasons, and
- in breach of the constitutional right of access to justice
The government refused to mediate, leaving us with no choice to continue this fight on behalf of our members in the courtroom.
Working with our members, we’re taking action to reverse these cuts to protect everyone’s right to legal advice.
Fighting for access to justice as a legal community
Duty solicitors in England and Wales are on call day and night – on some of the lowest rates of pay in the legal profession – to make sure that everyone has access to the legal advice they are entitled to.
For victims and defendants to get their cases resolved in court quickly, we need more legal aid firms to stay in business.
We know the MoJ choice on funding will leave more people without access to a lawyer when they desperately need expert advice.
For example, at least 50% of cases government’s digital platform for criminal cases are unrepresented defendants.
Two-thirds of solicitors believe access to justice has worsened over the past 10 years, citing the decline in legal aid due to underfunding as one of the main barriers.
Our case
In our evidence, we told the court that this an "existential" crisis from our perspective and those that we represent.
Unless more money is put into the system the pattern of decline will continue.
Even with 15%, we are sailing close to the wind.
We also shared the unlawfulness of the legal aid crisis with the court: “In more than 10% of the country, there is a real risk that people will not find themselves able to access a solicitor. This is a compelling case of a systemic breach at the national and regional levels.”
We hope the High Court will recognise that Dominic Raab’s decision was irrational and give the new lord chancellor the opportunity to reconsider it.
It’s not too late for the government to take the steps needed to make this work financially viable for defence solicitors and help ensure access to justice remains open to all.
The MoJ’s other reforms can only succeed if backed by the minimum funding recommended by the independent review.