The Law Society, R (On the Application Of) v The Lord Chancellor

A public consultation is unlawful where information pivotal to the justification and calibration of a proposal is withheld without good reason, and consultees thereby lose a material opportunity to respond. Relevant considerations include the proposal’s impact, the information’s importance, the reason for non-disclosure and resulting prejudice.

A decision is also unreasonable where it materially relies on a quantitative analysis affected by incontrovertible methodological errors. Expert evidence may establish such an error, but not where qualified experts can reasonably disagree.

Reducing criminal legal-aid remuneration infringes access to justice only where there is a real risk of systemic denial of adequate legal assistance. Whether that risk exists is for the court, although institutional expertise may carry weight.

The Law Society, R (On the Application Of) v The Lord Chancellor challenged the decision to reduce from 10,000 to 6,000 the maximum pages of prosecution evidence counted under the Litigators’ Graduated Fees Scheme. The decision was implemented by the Criminal Legal Aid (Remuneration) (Amendment) Regulations 2017.

The Lord Chancellor justified the measure as reversing increased expenditure attributed to R v Napper [2014] 5 Costs LR 947. An undisclosed Legal Aid Agency analysis estimated that increase at £33 million and was used to calibrate the proposed reduction.

At a rolled-up hearing, the Divisional Court considered whether the consultation was unfair, whether the decision was unreasonable, whether the Regulations created a systemic risk to access to justice, and whether a legitimate expectation required an earlier review. It also determined contested applications to adduce expert econometric evidence.

1. Claim succeeded. Permission to proceed was granted. The decision was declared unlawful and the Criminal Legal Aid (Remuneration) (Amendment) Regulations 2017 were quashed.

2. The consultation was so unfair as to be unlawful. Under R v North and East Devon Health Authority ex parte Coughlan [2001] QB 213, consultees must receive sufficient reasons to consider and answer a proposal intelligently. When assessing non-disclosure, relevant considerations include the proposal’s nature and potential impact, the information’s importance, the reason for withholding it and resulting prejudice.

   The undisclosed Legal Aid Agency analysis was pivotal. It supplied the £33 million estimate used to justify and calibrate the 6,000-page threshold. The proposal could materially reduce firms’ income, no reason was given for withholding the analysis, and its non-disclosure prevented informed criticism of serious methodological defects. The published material was positively misleading because it appeared to present the full evidence base.

3. The decision was independently unlawful for unreasonableness. A decision may be unreasonable because its result falls outside the range reasonably open to the decision-maker or because its reasoning contains a demonstrable and material logical, factual or methodological flaw. The analysis failed to control for trial length and number of defendants and wrongly attributed post-decision cost increases to R v Napper without accounting for pre-existing trends. No reasonable decision-maker could rely on the resulting estimate.

   A later, more sophisticated analysis could not retrospectively validate the actual decision. The relevant question concerned the analysis on which the Lord Chancellor had in fact relied.

4. The broader policy technique was not inherently unreasonable. A policy-maker may use proxies and may prefer an administratively workable measure that is over-inclusive and under-inclusive. Such a scheme remains rational if it strikes a reasonable overall balance. Here, however, that balance depended critically on a reliable relationship between the projected saving and the expenditure increase attributed to R v Napper.

5. The access-to-justice ground failed. The common-law right includes publicly funded legal assistance for an accused person who cannot afford representation where the interests of justice require it. A remuneration reduction is unlawful on this ground only where it creates a real risk of systemic denial of adequate legal assistance, rather than merely possible individual unfairness. The court determines that issue for itself, while giving appropriate weight to institutional expertise. The evidence did not establish the required risk.

6. The legitimate-expectation ground also failed. The ministerial statement concerned reconsideration of a particular proposed fee reduction. It could not reasonably be understood as promising a formal review before every later alteration to the Scheme. A legitimate expectation of proper consultation nevertheless arose from established practice and the importance of criminal legal aid.

7. Expert evidence in judicial review is seldom reasonably required, but may explain an incontrovertible technical error affecting the challenged reasoning. If reasonable expert disagreement remains, irrationality is not established. Parties wishing to rely on expert evidence must seek permission at the earliest reasonable opportunity under the Civil Procedure Rules 1998.

High Court (Administrative Court): This was a first-instance claim for judicial review. On 9 April 2018 William Davis J adjourned the permission application to a rolled-up substantive hearing. The Divisional Court granted permission, upheld the consultation and irrationality grounds, declared the decision unlawful and quashed the implementing Regulations.