Law Society of England and Wales, R (on the application of) v The Lord Chancellor

A statutory duty to secure criminal legal aid is breached only where the system is inherently defective and will produce unfairness in at least a significant and identifiable number of cases. A real risk of breach is insufficient where legal aid remains available but its funding is said to be inadequate.

The court is the primary decision-maker on breach of the statutory duty. Challenges to the decision-making process remain subject to ordinary public-law principles. A decision-maker must ask whether a lesser funding package might still achieve the relevant objectives and must take reasonable steps to obtain information needed to answer that question. Failure to undertake readily available modelling of lower fee increases was irrational and breached the Tameside duty.

The Law Society sought judicial review of the Lord Chancellor’s response to the Criminal Legal Aid Independent Review. It challenged the failure fully to implement the recommendation for a minimum 15% increase in criminal legal aid funding and the response to the recommendation that unmet need should be assessed with the assistance of an advisory board.

The grounds alleged breach of the duty in section 1 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, irrationality, inadequate reasons and failure to make sufficient enquiries. The central issues were whether the existing system was inherently defective, whether the decision-making process was lawful, and whether the response to unmet need was irrational.

1. Ground 1. Section 1 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 imposes a mandatory duty, not a discretion or target duty. In determining whether that duty has been breached, the court is the primary decision-maker.
2. For an anticipatory challenge to the system as a whole, the claimant had to prove on the balance of probabilities that the system was inherently defective and would produce unfairness in at least a significant and identifiable number of cases. The lower threshold of a real risk was insufficient in circumstances where legal aid remained available and funding had increased. The evidence concerning duty solicitor schemes, unmet need, delays and economic sustainability did not establish an actual or imminent breach.
3. The constitutional access-to-justice principle in UNISON concerns legal impediments to access to courts and tribunals. It did not provide the applicable test for a complaint that the state had provided insufficient legal-aid funding.
4. Ground 4. The Tameside duty required the Lord Chancellor to ask the right question and take reasonable steps to obtain relevant information. The general complaints about the LAA’s monitoring arrangements did not establish a breach. However, the Lord Chancellor should have re-run the available CLAIR model on the basis of lower uplifts. The exercise was straightforward and could have informed whether the aims of CLAIR, particularly sustainability, would still be advanced. The reasons given for not doing so did not withstand scrutiny.
5. Ground 2. The substantive funding decision was not shown to be outside the range of reasonable decisions, particularly given the allocation of limited public resources. But the Lord Chancellor failed to ask whether lower uplifts might achieve CLAIR’s objectives. That was a serious flaw in reasoning and was irrational. The response to the unmet-need recommendation was not shown to be irrational.
6. Ground 3 and remedy. The reasons ground added nothing beyond the process challenge. The claim therefore succeeded in part under Grounds 4 and 2. No quashing order was required. A declaration was granted that the failures to ask the relevant question and to undertake lower-uplift modelling were irrational and breached the Wednesbury and Tameside duties.

First-instance judicial review proceedings in the Divisional Court of the High Court. The claim was granted in part under Grounds 2 and 4.