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

A remuneration order may lawfully reduce or remove a separate fee for work forming part of a larger body of legally aided work, provided the overall work remains remunerated. When making such an order, the Lord Chancellor must have regard to the statutory need to secure a sufficient supply of competent providers, but need not guarantee that the need will be satisfied. The assessment must be based on information available when the order is made; later events cannot establish unlawfulness, although they may support a later review. Financial restructuring may encourage efficient case resolution, but delegated powers cannot be used to pressure defendants to surrender a statutory right to jury trial. Equal remuneration for different categories of work is not inherently irrational.

The Law Society sought judicial review of article 25 of the Criminal Defence Service (Funding) (Amendment) Order 2011, which removed the separate £318 fee for committal proceedings in either-way criminal cases. The Lord Chancellor had made the order under the Access to Justice Act 1999. The Law Society argued that the measure was ultra vires, irrational, adopted for an improper purpose, failed to take account of provider sustainability, breached the public sector equality duty, and was incompatible with article 6 of the Convention.

The central issues were whether the remaining Crown Court fee remunerated the relevant magistrates’ court work, whether the statutory considerations had been properly addressed, and whether the order unlawfully affected access to representation or the right to a fair trial.

1. The claim was dismissed. Lord Justice Stanley Burnton delivered the judgment, and Mr Justice Treacy agreed.
2. The removal of the separate committal fee was not ultra vires the Access to Justice Act 1999. The remaining Crown Court fee covered both the magistrates’ court and Crown Court work. The legislation did not require a separate fee for every component of a larger remunerated service.
3. The Lord Chancellor had complied with section 25(3)(a) of the 1999 Act by having regard to the need to secure services from a sufficient number of competent providers. That provision imposed a duty to take the specified need into account, rather than an absolute duty to ensure that it was satisfied. The relevant assessment had to be made on the material available before the order was made. Subsequent evidence could not establish that the original decision was unlawful.
4. The decision was not irrational merely because the order applied to all committed cases, including cases committed because magistrates declined jurisdiction, or because sent cases and committed cases received similar remuneration. Saving public money and restructuring incentives were legitimate objectives, and equal treatment of different categories of work was not, without more, unlawful.
5. Using remuneration powers to pressure defendants to abandon their statutory right to elect jury trial would be an improper purpose. It was lawful, however, to remove financial incentives favouring Crown Court proceedings and to encourage early consideration of plea and venue, consistently with the statutory objective of value for money. The evidence did not establish the alleged improper purpose.
6. The Lord Chancellor had not breached section 149 of the Equality Act 2010. The material showed consideration of possible effects on disabled and minority ethnic defendants and of the risk to representation. The court was not satisfied that a substantial withdrawal of representation was expected.
7. The article 6 claim also failed. The Law Society had not shown, as at the date of the order, that abolition of the fee would result in breaches of defendants’ fair-trial rights. Later experience might support a duty to review the remuneration scheme, but that issue was not determined on the claim presented.

First-instance judicial review proceedings. Permission was granted at a rolled-up hearing, followed by determination of the substantive claim by the Administrative Court.