It didn't take a judge to explain that the failure to increase the fees of defence solicitors would have a seriously detrimental effect on the criminal justice system, but that is what happened on Wednesday when the High Court found against the government.
The judgment relates back to an ill-fated time when Dominic Raab was the Secretary of State for Justice. In spite of an expert recommendation to boost solicitor fees, Raab ignored the advice in a move that further alienated the profession and undermined the legal representation defendants have access to.
The Ministry of Justice responded to the decision by noting that the Law Society was only successful on narrow grounds and the judicial review was mostly unsuccessful.
This is true, but the comments ignore just how significant this ruling is. A finding of 'irrationality' is unusual because, per Wednesbury, it suggests that Raab's move was "so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it".1
A review by Lord Bellamy suggested that fees should go up by a minimum of 15%. In the end, Raab only raised pay by 11% and this has led to a decimation of those doing legal aid work. Evidence from the Law Society shows that since 2017, more than 1,400 duty solicitors have stopped doing legal aid work. This has left parts of the country as a legal aid wasteland where access to justice is simply not possible.
Pressure will now be on the new Justice Secretary, Alex Chalk, who has thus far proven himself to be a sweet relief from his predecessor. It is certainly possible that the Ministry of Justice may choose to appeal this decision but the right step would surely be to try and undo the damage that Raab caused to criminal justice in England and Wales.
The government did announce a pay boost for duty solicitors this week but this is a drop in the ocean compared to the amount that they have been underpaid since 2012. Furthermore it does almost nothing to undo the systemic abuse of legal aid and the demonisation of the profession under this Conservative government.
The fight back for access to Justice has begun in earnest but there is certainly still a long way to go.
Lord Diplock’s articulation of Wednesbury in Council of Civil Service Unions v Minister for the Civil Service [1984] 3 All ER 935
Please send me a transcript of the Potanina v Potanin judgment hearing -- and any analysis. Thanks
V
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