Law Society of England and Wales, R (on the application of) v The Legal Services Commission & Anor

The Law Society challenged article 25 of the Criminal Defence Service (Funding) (Amendment) Order 2011 which abolished the separate fee for “committal proceedings” under the Criminal Defence Service (Funding) Order 2007. The claimant advanced multiple grounds: that the Amendment Order was ultra vires the Access to Justice Act 1999, that it was made for an improper purpose, that it was irrational or made in misunderstanding of the relevant provisions, that the Lord Chancellor failed to take into account material considerations including market sustainability and the risk of unrepresented defendants, that it breached Article 6 ECHR, and that it breached the public sector equality duty in s.149 of the Equality Act 2010.

The court held that the Amendment Order was not ultra vires: abolition of a separate committal fee did not require that magistrates' court work be left entirely unremunerated because the litigators' fee for the Crown Court now covered the work as a single package. The court rejected the claims of mistake and irrationality, finding that the Lord Chancellor and officials were aware that “committal proceedings” covered preparatory magistrates' court work, had considered market sustainability and had reasons (including a value-for-money objective) for the reform. The court also rejected the improper purpose, Article 6 and s.149 grounds on the basis that the evidence did not show unlawful purpose, a real Article 6 incompatibility at the time the Order was made, or failure to have due regard under s.149.

Background and parties:

• The claimant, the Law Society of England and Wales, applied for judicial review of article 25 of the Criminal Defence Service (Funding) (Amendment) Order 2011, which removed the separate fee previously payable for committal proceedings under the Criminal Defence Service (Funding) Order 2007. The Lord Chancellor was the defendant and the Legal Services Commission was an interested party (unrepresented at the hearing). Permission to apply for judicial review was granted and the claim was heard at first instance.

Nature of the claim and relief sought:

• The Law Society sought a declaration and relief on grounds that the Amendment Order was unlawful in multiple respects: ultra vires the Access to Justice Act 1999; made for an improper purpose (to disincentivise election to jury trial); irrational or made under a misunderstanding of the scope of “committal proceedings”; made without proper consideration of supplier sustainability and the risk of defendants becoming unrepresented; incompatible with Article 6 ECHR; and made in breach of the duty under s.149 of the Equality Act 2010.

Issues framed by the court:

• Whether the Amendment Order was intra vires the 1999 Act given that it abolished a distinct committal fee.
• Whether the Lord Chancellor misunderstood the scope of “committal proceedings” or acted irrationally in other respects (wider effect than intended, equal treatment of sent and committed cases).
• Whether the reform was driven by an improper purpose.
• Whether the Lord Chancellor failed to take into account material considerations, notably market sustainability and the risk of unrepresented defendants.
• Whether abolition of the committal fee gave rise to an Article 6 incompatibility at the date of making, or breached s.149 Equality Act obligations.

Court’s reasoning and conclusions:

• Ultra vires: The court concluded that abolishing the separate committal fee did not require that magistrates' court work be separately remunerated. The overall litigators’ fee for Crown Court work could legitimately be treated as covering both magistrates' court and Crown Court work; therefore the Amendment Order did not conflict with the Commission’s duty under s.14 to fund representation and was intra vires.
• Misunderstanding / irrationality: The court found that Ministers and officials were aware that “committal proceedings” encompassed pre-hearing magistrates' court work; the explanatory and consultation documents, ministerial submissions and witness evidence showed awareness. The statutory requirement in s.25(3) to have regard to supply and value for money had been considered via impact assessments and market sustainability analysis. The court did not accept that the order was irrational, perverse, or based on a legal mistake.
• Wider effect and equality of treatment: The court held that providing equal remuneration for sent and committed cases was not inherently irrational and that differences in workload did not render the measure unlawful.
• Improper purpose: While recognising that depriving defendants of statutory rights by regulation would be unlawful, the court accepted that incentivising early resolution and securing value for money were legitimate objectives and found no evidence of an improper ulterior purpose.
• Section 149 Equality Act 2010 and Article 6 ECHR: The court was satisfied that equality impacts had been considered in impact assessments and that there was no clear evidence at the date of the Order that abolition of the fee created an Article 6 incompatibility or that the public sector equality duty had been breached.

Outcome:

• The application for judicial review was dismissed and the Law Society’s challenge to article 25 of the Amendment Order failed.

This was a first instance judicial review claim which the court dismissed. The court found that article 25 of the Criminal Defence Service (Funding) (Amendment) Order 2011 was intra vires the Access to Justice Act 1999, was not irrational or made for an improper purpose, and did not breach Article 6 ECHR or the duty under s.149 of the Equality Act 2010; therefore the claim is dismissed.