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Lord Chancellor urged to change solicitor funding decision or face judicial review challenge

In a statement today, The Law Society of England and Wales has urged the Lord Chancellor to either rethink his decision not to increase criminal defence solicitors’ legal aid rates by the recommended bare minimum or face a judicial review.

A pre-action letter has been sent 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%, which the independent review said was needed immediately over a year ago to prevent the collapse of the criminal defence sector, is unlawful, as is the decision not to take action to address the risk of local market failure,” said Law Society President Lubna Shuja.

“We are seeking a commitment by the government to withdraw both decisions and reconsider them within a mutually agreed timetable. If not, we will 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.

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

“The huge court backlogs, the crumbling court infrastructure, the lack of judges and lawyers, duty schemes on the brink – all paint a clear picture of a criminal justice system in crisis. A system that is evidently collapsing due to inadequate levels of government investment.

“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.

“This irrational policy-making will have wide consequences for the small businesses operating in the criminal defence sector, the criminal justice system as a whole and 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.

“We have proposed alternative dispute resolution of the proposed litigation be attempted with independent mediation by an appropriately experienced senior lawyer or former judge,” concluded Lubna Shuja.

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