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

In these proceedings, the Law Society challenges the lawfulness of the cut to criminal legal aid fees made by article 25 of the Criminal Defence Service (Funding) (Amendment) Order 2011 (“the Amendment Order”). The Amendment Order amended the Criminal Defence Service (Funding) Order 2007 (“the 2007 Order”), which is the principal delegated legislation prescribing how criminal legal aid work is remunerated. The Amendment Order was made by the Lord Chancellor on 18 August 2011 and came into effect on 3 October 2011.

Article 25 of the Amendment Order abolishes the fee previously payable to legal representatives for “committal proceedings”, as defined in article 2 of the 2007 Order. This incorporates all work undertaken in representing defendants in the magistrates’ courts in either-way cases committed to the Crown Court, up to and including the committal hearing. The result is that in such cases a solicitor who represents a defendant in an either-way case in the magistrates’ court that is committed to the Crown Court and acts for him in that Court receives only the fee previously payable for the Crown Court proceedings alone.

This was a rolled-up hearing of the application of the Law Society for permission to apply for judicial review with the application to follow if permission was granted. We granted permission. This is my judgment on the Law Society’s claim for judicial review.

In summary, the Law Society contends:

Article 25 of the Amendment Order is ultra vires the Access to Justice Act 1999 (“the 1999 Act”) under which it was made.

The stated objective of the abolition of the committal fee was not to fund representation but to provide an incentive to solicitors to advise their clients to plead guilty earlier or accept summary trial. That was an improper purpose and article 25 was in consequence unlawful.

The decision to make article 25 of the Amendment Order was irrational in that:

It proceeded from a misunderstanding of the meaning of “committal proceedings” in article 2 of the 2007 Order.

Article 25 is wider in effect than the mischief that it was intended to remedy.

Article 25 treats identically (by providing for no payment at all) two very different classes of case, namely ‘either way’ cases, which involve substantial work in the magistrates’ court, and ‘indictable only’ cases, which do not.

The Lord Chancellor failed to take account of the fact that, following abolition of the committal fee, solicitors would decline to take on unremunerated committal proceedings, and there would be a consequential substantial increase in the number of defendants who were unrepresented in committal proceedings. The Lord Chancellor failed to consider, or misunderstood, the evidence on sustainability submitted by the Law Society.

The absence of remuneration for “committal proceedings” is incompatible with Article 6 of the European Convention on Human Rights since it creates a real risk that defendants will be unable to obtain representation at the crucial early stages of criminal proceedings. The Lord Chancellor has no power to make an order that is incompatible with Article 6.

The Lord Chancellor failed in his duty under s.149 of the Equality Act 2010 to have “due regard” to the needs set out in that section, in particular concerning eliminating discrimination and advancing equality of opportunity between persons who share a relevant protected characteristic (in particular race and disability) and those who do not.

The Lord Chancellor denies that any of the Law Society’s grounds for judicial review are ‘well founded’.

Criminal offences may be broadly divided into three categories. Summary offences are those that may only be tried in the magistrates’ courts. Driving without due care and attention is a common example. Indictable-only offences may only be tried in the Crown Court, by a judge sitting with a jury. ‘Either-way’ offences may be tried either in the magistrates’ court or in the Crown Court. Theft is a common example. The prosecution may seek to have the case tried in the Crown Court, on account of its seriousness, and the magistrates or the District Judge (Magistrates’ Court) may decline jurisdiction on account of their view of its seriousness, in which case it will be tried in the Crown Court. The defendant to an offence triable either way has an absolute right to be tried by a judge and jury in the Crown Court, irrespective of the apparent seriousness of the offence.

All criminal proceedings are commenced in the magistrates’ court. All cases to be tried in the Crown Court were previously committed by the magistrates’ court for trial in the Crown Court. Committal involves consideration of the prosecution case by the magistrates’ court, to determine whether the evidence, normally that of the prosecution alone, justifies the continuation of the prosecution. Indictable-only offences are no longer committed for trial; they are “sent” to the Crown Court for trial. Sending to the Crown Court does not involve any consideration of the evidence by the magistrates’ court. Instead, the defendant may apply in the Crown Court for the dismissal of the charges. Prosecutions of either-way offences are still committed by magistrates for trial in the Crown Court if either the defendant elects to be tried in the Crown Court (though he may subsequently plead guilty in the Crown Court), or if the magistrates’ court declines jurisdiction on the basis that the case is too serious for summary trial.

The Law Society set out in its skeleton argument the work that a solicitor instructed by a defendant in an ‘either-way’ case may carry out in the magistrates’ court. In our judgment, this is very much a description of the maximum that may be involved, but it is nonetheless instructive to set it out.

On the first appearance of the defendant in court, his legal representative will be expected both to put in a plea and to make any representations on trial venue. This requires his legal representative to obtain and to consider the Advance Information (initial prosecution disclosure) from the CPS. This may not be available until the beginning of the court day. It may be incomplete or the CPS simply may not have the file, in which case an adjournment of the substantive hearing to a later date may be required. The legal representative will have to take instructions from the defendant and advise him or her on the evidential strength of the material available and any admissibility issues in relation to that material. In some cases, the volume of material, complexity of the issues, or the format of the evidence (CCTV for example) means that it is not possible to give full advice at the first appearance, again necessitating an adjournment. It is also at the stage of taking instructions that representatives are most likely to identify concerns about the defendant’s fitness to plead to the offence charged. The legal representative should advise the defendant on the procedure for entering a plea and determining mode of trial, on the differences between summary and jury trials, and the credit for an early guilty plea, including the consequences of delaying indicating a plea until the case reaches the Crown Court. He will also take instructions and advise on bail. If the defendant is already on bail, questions as to an application to vary the conditions of bail may arise.

The matters to which I have referred in the previous paragraph would normally also be discussed with the representative of the CPS.

In court, the legal representative may make an application for directions on disclosure of missing documents from the Advance Information and/or for bail. If the hearing is fully effective, the defendant will be required to indicate a plea and mode of trial will be determined. A date will be set for the committal hearing, typically in 4 weeks if the defendant is remanded in custody and in 6 weeks if he is on bail.

It should be pointed out, however, that the work involved in a defendant’s first appearance is within the scope of the duty solicitor scheme, and need not therefore be the subject of a representation order.

The defence statement falls to be served within 28 days of primary disclosure by the prosecution, and so preparatory work such as identifying witnesses and taking of proofs and witness statements will have to be carried out while the case is still before the magistrates’ court. Defence witness notification requirements mean that identifying defence witnesses often cannot wait until after committal. In any event, the defendant’s interests are best served by early identification of witnesses and obtaining statements from them.

If the defendant is remanded in custody pending his committal hearing, the remand will be for 7 days so that a second bail application can be made. This may require the following work:

Attending the defendant in the prison or young offenders’ institution in which he is detained in order to take further instructions and advise on bail, including obtaining details of any persons who may be able to give relevant assistance (standing as a surety, for example).

Contacting the defendant’s friends or family to see if they can provide assistance, including whether they will stand as a surety. Any surety will need to provide details of financial means and instructions on any criminal convictions or cautions they may have. They will also need to be advised on the consequences for them if the defendant subsequently fails to attend court if released on bail on the basis of their surety.

Representation at the magistrates’ court on a second bail application. If bail is granted on this or any other occasion by the magistrates’ court, the prosecution may seek to appeal to a Crown Court judge under s.1 of the Bail Act 1976, as detailed in Criminal Procedure Rules r.19.16 and 19.17. If so, the defendant is entitled to be represented at any such appeal hearing, with the attendant preparation required by the representative.

If, conversely, the second magistrates’ court application for bail by the defendant is unsuccessful he also has a right to make a further application to a Crown Court judge. The merits of making such an application will need to be discussed with the defendant and instructions taken. If an application to a Crown Court judge is to be made, the application has to be in writing and on notice: see Criminal Procedure Rules r.19.18.

If a defendant is at any stage released on bail, there may also be the need to make an application to the magistrates’ court to vary the conditions of bail. Again, this needs to be on notice and in writing: see Criminal Procedure Rules r.19.1.

The committal hearing may either be a contested hearing or an uncontested hearing, depending on the evidence and the defendant’s instructions. Contested hearings probably occur in less than 10 per cent of cases. The work required of the representative at the committal stage is as follows:

The CPS will prepare and serve a committal bundle. Failure to serve a complete bundle is a frequent occurrence, resulting in many committal hearings being adjourned, either on the day (requiring attendance at court by the representative) or administratively (requiring liaison with the court and CPS by telephone and in writing).

Once the bundle is received, consideration has to be given to the evidential case presented. Not infrequently, the charges originally laid will have been amended or supplemented, sometimes as a result of new evidence. It is not unusual for bundles to be hundreds of pages long, with lengthy interview transcripts.

Instructions will have to be taken from the defendant on the evidence in the bundle and advice given as to the merits of challenging the committal.

If no challenge is to be made to the committal, the hearing will be short and a date set for the first hearing in the Crown Court (the PCMH): see Criminal Procedure Rules r.10.2.

If a submission of no case to answer is to be made under s.6 of the Magistrates’ Courts Act 1980, a hearing will be required and can last for anything between an hour and more than a day. Skeleton Arguments are usually required from both parties. At the hearing the court will consider the prosecution evidence (in written form only) and hear an opening address from the CPS as well as the defence representative’s submissions: see Criminal Procedure Rules r.10.3.

In contrast, the typical indictable only case which is sent rather than committed will involve considerably less work. The default position, mandated by section 51 of the Crime and Disorder Act 1998, is that there will be only one hearing. Indeed, the purpose of the move from committal to sending in such cases was to reduce the time and work involved. The average indictable only case will therefore include:

Attending the section 51 hearing: the hearing generally only lasts a few minutes and does not require the defendant to indicate a plea. Not all the evidence is usually served at this stage and there is no obligation on solicitors to give any advice on plea.

Potentially taking instructions on and making an application for bail, in the same way as in ‘either way’ cases, but for the fact that bail applications will not be made in all ‘indictable only’ cases.

Potentially appealing against a refusal of bail, in the same way as in an ‘either way’ case.

Thus, ‘either-way’ cases will involve the following work which is not arise involved in an indictable-only case:

Attending the first appearance: Reviewing the Advance Information from the prosecution, going through it with the client; advising on the elements of the offence and the strength of the evidence; advising on mode of trial; representing in court on the mode of trial issue.

Attending the committal hearing: Reviewing the committal bundle, going through it with the client; advising on any grounds to contest committal; representing at the committal hearing.

The Legal Services Commission was created pursuant to the 1999 Act. Section 12 imposed a duty on the Commission “to establish, maintain and develop a service known as the Criminal Defence Service for the purpose of securing that individuals involved in criminal investigations or criminal proceedings have access to such advice, assistance and representation as the interests of justice require”. Section 14(1) provides:

Subsection (2) concerns the manner in which the Commission may comply with the duty imposed by subsection (1). Subsection (3) confers power on the Lord Chancellor to make by order provisions requiring the Commission to discharge the duty imposed by that section in accordance with the order.

Section 15 confers a qualified right on an individual who has been granted, or provisionally granted, a right to representation in accordance with Schedule 3 to select any representative or representatives willing to act for him. Where he does so, the Commission must comply with the duty imposed by section 14(1) by funding representation by the selected representative or representatives.

Section 18 imposes a duty on the Lord Chancellor to fund the Commission. Subsection (3) provides:

So far as relevant, section 25 is as follows:

In November 2010 the Ministry of Justice (“MoJ”) consulted upon a wide range of measures concerning changes to criminal and civil (including family) legal aid: “Proposals for the Reform of Legal Aid in England and Wales” (“the Consultation Paper”). The Consultation Paper addressed the proposed reform of criminal legal aid fees at chapter 6 and set out the case for reform. It identified a concern that a significant proportion of cases were being committed to the Crown Court which could appropriately have been dealt with in the magistrates’ courts, and that legal aid fee structures should address this concern:

pay a single fixed fee of £565 for a guilty plea in an either way case tried in the Crown Court which the magistrates’ court has determined is suitable for summary trial;

enhance the lower standard fee paid for cracked trials and guilty pleas under the magistrates’ courts scheme by 25% for either way cases; and

remove the separate fee for a committal hearing under the [Litigators’ Graduated Fees Scheme] for all cases committed to the Crown Court for trial. This saving will be used to fund the enhanced lower standard fee (and also the enhanced Crown Court early guilty fees proposed below).

Question 24 of the Consultation Paperasked:

768 respondents answered question 24 in the Consultation Paper, with 707 (92%) stating that the committal fee should be retained and only 61 (8%) agreeing with the proposal to abolish it. Among those who opposed the proposal was the Law Society. Its response stated:

Other consultees were of a different view. The Magistrates’ Association responded:

The Government’s response to the Consultation was published and presented by the Lord Chancellor to Parliament in June 2011: “Legal Aid in England and Wales: the Government Response” (“the Consultation Response”). It stated, at paragraph 191:

At the same time as the Government’s Response to the Consultation in June 2011, the MoJ published an Impact Assessment. Paragraphs 10 and 11 stated:

On 13 July 2011 the MoJ wrote to the Law Society and the Bar Council, as it was obliged to do under section 25(2) of the 1999 Act, to consult upon the draft Amendment Order. The letter stated that the draft Order was intended to make the changes set out in the response to consultation, including the change to “abolish the committal hearing fee”. The Explanatory Note indicated that “The Order removes the separate fee payable for committal hearings which will no longer be payable.” The Law Society objected, indicating that, so long as committals remain a part of the criminal justice system, the effect of the change would be to expect providers to undertake significant amounts of work on cases proceeding to the Crown Court for no remuneration.

Despite these objections, the Amendment Orderwas made on 18 August 2011 and laid before Parliament on 24 August. As noted above, it came into force on 3 October 2011 and applies to proceedings in which a representation order is granted on or after that date.

Paragraph 12B of Schedule 2 to the 2007 Order provided:

The fee set out in the table following paragraph 14 was, immediately before the making of the Amendment Order, £318. “Committal proceedings” were defined in Article 2 as “proceedings in a magistrates' court up to and including a hearing at which an assisted person is committed to the Crown Court for trial under section 6(1) or (2) of the Magistrates' Courts Act 1980”.

Article 25 of the Amendment Order simply provided:

The ultra vires ground of challenge is simply stated. It is ultra vires the power conferred by the 1999 Act for the Lord Chancellor to make an order that results in a litigator instructed by a defendant to whom a right to representation has been granted by a court in the exercise of the power conferred by the Act to work for no remuneration. Such an order would be inconsistent with the duty imposed on the Commission by section 14(1) to fund such representation.

I do not understand this proposition to be controversial. What is controversial is whether that is the effect of the Amendment Order.

Indubitably, the effect of the Amendment Order is that what may be considerable work done by a legal representative in and in connection with committal proceedings is not the subject of remuneration in addition to that payable as the litigators’ fee for the Crown Court proceedings. However, that is not the same as the representative being required to work for no remuneration. The result of the Amendment Order is that the fee formerly payable for the Crown Court work alone covers both magistrates’ court and Crown Court work. Undoubtedly, this results in a substantially lower payment being received by the solicitor. That is the result, and the purpose, of the Amendment Order. The effect of the Amendment Order is to reduce the overall fee that would previously have been earned for work in the magistrates’ court and the Crown Court by £318. The justification put forward by the Lord Chancellor is that there is duplication between preparation for committal and preparation for trial, and that virtually all solicitors instructed for the committal continue to act for the defendant in the Crown Court. But the fact that the total fee has not been increased, and that there is now no separate fee for the committal proceedings, does not mean that the magistrates’ court work is unremunerated. The remuneration is earned by both the work in the magistrates’ court and that in the Crown Court.

There is I think no justification for an interpretation of the 1999 Act that requires a separate fee for any item or items of work, provided that work is part of a larger whole that is remunerated.

It follows that in my judgment the provisions of the Amendment Order in issue are not ultra viresthe 1999 Act.

The Law Society contends that the Amendment Order is unlawful on the ground of irrationality. The bases of irrationality alleged are four-fold:

The Amendment Order was made in the belief that the fee that was abolished related to the hearing in the magistrates’ court only.

The Lord Chancellor failed to take into account the risk of solicitors not acting in committal proceedings if the change made by the Amendment Order took effect.

The amendment was marred by illogicality. It was said, and intended, to target defendants who elect jury trial when they could and should have been dealt with in the magistrates’ court. In fact, however, it applies even where it is the magistrates who decide that summary proceedings are inappropriate and therefore decline jurisdiction.

It was irrational to make provision for equal remuneration for either-way cases that are committed to the Crown Court and for ‘indictable only’ cases that are sent to the Crown Court: sent cases involve much less work in relation to the magistrates’ court proceedings than committals.

I shall consider each of these contentions in order.

I think that this ground is that the Amendment Order was made under a mistake of law, rather than that the decision to make it was irrational, but this is an unnecessary quibble.

There is undoubtedly loose language to be found in the MoJ’s documents in which the proposed amendment is considered. Many refer not to a fee for the magistrates’ court proceedings, including preparatory work to which I have referred above, but to a fee for the committal hearing alone. The relevant references are comprehensively set out in the table under paragraph 30 of the Law Society’s skeleton argument. A good example is the ministerial submission of 11 August 2010, which states:

Question 24 of the Consultation Paper that preceded the making of the Amendment Order asked:

Paragraph 31 of the ministerial submission following the consultation referred to “the removal of the committal for trial fee”. A submission of 26 April 2011 advised:

I am unable to accept the Law Society’s contentions under this head. First, it requires a finding that the Lord Chancellor was ignorant of the relevant remuneration provisions. The starting point must be, I think, an assumption that the Ministers and their advisers know the statutory provisions with which they are dealing. The evidence of Mr MacMillan, Head of the Criminal Legal Aid Team in the MoJ, confirms that they were not under an misapprehension. He says, in his first witness statement:

I do not think that the references relied on by the Law Society are unequivocal enough to lead me to reject this evidence and to establish that the Lord Chancellor, or the Minister, or their civil servants were under a misapprehension as to the effect of the amendment.

Secondly, it seems to me to be implicit in the Law Society’s case that the Lord Chancellor believed that work done in connection with committal proceedings, but outside the committal hearing, was remunerated otherwise than by the fixed fee of £318 under provisions that would be left in place after its abolition. However, there is nothing to suggest that anyone was under that misapprehension.

Lastly, it is clear from the Law Society’s own response to the consultation that, not surprisingly, it was fully aware of the effect of the abolition of the fixed committal fee. Thus, its response referred at paragraph 4.10 to the possibility of a defendant paying privately “for the work conducted in the Magistrates’ Court”. The response of the Criminal Law Solicitors’ Association was even clearer:

The Ministry did not respond to the CLSA or to the Law Society that they were mistaken as to the effect of the abolition of the committal fee. To the contrary, if the Ministry had had any uncertainty as to its effect, the responses to the consultation made it clear.

Again, I would not categorise this head of claim as irrationality, but as an allegation that the Lord Chancellor failed to take proper account of a material consideration. As will be seen, it is clear that the Lord Chancellor did take this risk into account. The Law Society’s case is that he did so inadequately, indeed, that his failure was so great as to have been irrational. Mr Eadie complained that this ground, among others, had not been pleaded by the Law Society. However, it, and the other grounds to which complaint was made, were fully set out in the Law Society’s skeleton argument, and Mr Eadie was able to address them. So shall I.

I also think it necessary to reformulate this ground for judicial review, by reason of the applicable statutory provisions. As has been seen, section 25(3) of the 1999 Act requires the Lord Chancellor, when making any remuneration order the Lord Chancellor to have regard to “(a) the need to secure the provision of services of the description to which the order relates by a sufficient number of competent persons and bodies”. It is clear that legal representation in committal proceedings is a service of the description to which the 2007 and the Amendment orders relate, within the meaning of section 25(3)(a). The section is not happily drafted. “Need” is a strong, and unusual, word to find in such a statutory provision. If Parliament accepted that there was a need to secure the provision of legal representation in certain criminal proceedings (which is what section 25(3)(a) states), one would expect it to have imposed a duty on the Lord Chancellor to secure that this need was satisfied. It did not do so, instead imposing the lesser duty to take that need into account. Be that as it may, Parliament has specified the considerations that the Lord Chancellor must take into account when making a remuneration order, and it is not open to anyone to reformulate or to add to them.

Evidence was adduced by both the Law Society and the Lord Chancellor as to the reduction or otherwise of the availability of legal representation in committal proceedings following the coming into effect of the Amendment Order. In my judgment, strictly this evidence is inadmissible. Whether the Lord Chancellor properly took into account the need specified in section 25(3)(a) must depend only on what he knew and did before he made the Amendment Order. Subsequent events may bear out or falsify his expectations, but they cannot lead to a finding that he did, or did not, comply with that statutory requirement. Subsequent events may be relevant to the exercise of the Court’s discretion to grant or to refuse relief, but not to the lawfulness of his decision. They may also give rise to an obligation on the part of the Lord Chancellor to consider a further amendment to the remuneration provisions, but no such obligation is alleged in these proceedings.

I turn to consider the evidence. In its response to the consultation paper, the Law Society stated:

The Bar Council did not suggest that there would be an increase in unrepresented defendants. Nor did the Judges’ Council, the Council of Circuit Judges or the CLSA.

The issue was clearly identified to Ministers in the ministerial submission of 1 March 2011. The MoJ considered a report by Andrew Otterburn, of Otterburn Legal Consulting LLP, submitted by the Law Society, who was accepted as having relevant knowledge and expertise. It is to be noted that his report did not focus on the abolition of the committal fee, but concerned the proposed reductions in legal aid fees in general. The Ministry contacted him, discussed his report with him, and commissioned him to carry out additional analysis. His second report, dated 10 March 2011, did not give cause for optimism. While qualifying his analysis by reason of the small sample size involved, his main conclusion was that “an important group of suppliers who are key to fulfilling the LSC’s statutory obligations in providing a criminal defence service is at risk”.

The issue was addressed in the Ministerial Submission of 26 April 2011, under the heading of market sustainability. The advice to Ministers was set out in paragraphs 119 and 120:

Annex E to the submission stated, at paragraphs 5 and 6:

Paragraph 33 & 34 were as follows:

in practice committal proceedings are rarely substantive hearings, usually just confirming the decisions made earlier on at the mode of trial hearing with such papers as there are served very late or on the day itself. Moreover, any preparation which solicitors are required to make will cover much the same ground as for the Plea and Case Management Hearing in the Crown Court just a few weeks later. Respondents complain about the abolition of committal fees, but have not provided any very persuasive arguments in favour of keeping them. The Law Society, for example, merely remarks that solicitors will not be able to afford to represent defendants during the magistrates’ courts stages of either way cases, without providing any evidence for this assertion; and

Abolition of the fee for committals will save approximately £25m per annum. Without it we would need to look for savings elsewhere.

Paragraphs 114 to 128 summarised the evidence of the civil servants on market sustainability in some detail. The discussion cannot be criticised as cursory or perverse. It concluded that the criminal fee proposals were likely to be sustainable. It added, under the heading “Risk mitigation”:

In its Response to the consultation, of June 2011, the Government mentioned the argument that the removal of the committal for trial fee would lead to defendants being unrepresented at committal. This argument was not expressly addressed in the Response, although the Government did announce that it accepted that other features of its proposals would be modified, and it addressed the issue of market sustainability, concluding in paragraph 41 of Annex F, that:

In his first witness statement, Mr MacMillan states that one reason for the Ministry’s view that solicitors would continue to act in committal proceedings was the market incentive that they would want the more profitable Crown Court work. Defendants rarely change their representation between committal proceedings and Crown Court proceedings. It follows that if solicitors did not act in the committal proceedings they would not be instructed in the ensuing Crown Court proceedings. This reasoning, which is cogent in relation to representation in committal proceedings, is not to be found in the contemporaneous documents, and it is criticised by the Law Society as post-event rationalising. In the absence of cross examination, I do not think it right to reject Mr MacMillan’s evidence, but in any event, on the basis of the contemporaneous documents alone, I could not find that the Lord Chancellor did not take into account what section 25(3)(a) required him to take into account.

Furthermore, I do not think that the Ministry’s comment, set out at paragraph 54 above, on the suggestion of the Law Society that there would be an increased number of unrepresented defendants in committal proceedings was unfair or unwarranted. The Law Society might, for example, have carried out a survey of firms carrying out publicly-funded criminal work and provided its results in its response to the consultation. It did not do so, and instead put forward its opinion which, however sensible, was unsubstantiated.

In my judgment, for the reasons I have given, this head of the Law Society’s challenge has not been made out.

Undoubtedly, the early documents relating to the proposed amendment to the 2007 Order link the amendment to the desire to avoid inappropriate committals to the Crown Court. Thus, a meeting note of 14 July 2010 records:

The Consultation Paper of November 2010 put the matter clearly:

pay a single fixed fee of £565 for a guilty plea in an either way case tried in the Crown Court which the magistrates’ court has determined is suitable for summary trial;

enhance the lower standard fee paid for cracked trials and guilty pleas under the magistrates’ courts scheme by 25% for either way cases; and

remove the separate fee for a committal hearing under the LGFS for all cases committed to the Crown Court for trial. This saving will be used to fund the enhanced lower standard fee (and also the enhanced Crown Court early guilty fees proposed below).

The effect of the Amendment Order was to abolish the fee for committal proceedings in either-way cases irrespective of whether the case was committed at the election of the defendant or by the decision of the magistrates’ court to decline jurisdiction, and irrespective of any judicial view as to the appropriate venue for the case. It is fair to say that this followed from the third bullet point of paragraph 6.18, referring to “all cases committed to the Crown Court for trial”, without qualification. Consistently with this, question 24 posed by the Paper was similarly unqualified:

The calculation in the Consultation Paper of the saving expected from the proposal was based on a total abolition of the fee.

I therefore do not think that the MoJ or the Lord Chancellor was under a misapprehension as to the effect of the proposal. Nor is there evidence that those who responded to the Consultation Paper were misled as to its effect.

In any event, I doubt whether this head is a good ground for judicial review. Many remedies have a wider effect than the problem they are intended to address. It seems to me that the Law Society would have to show either that the Lord Chancellor misunderstood the effect of the Amendment Order (which is not alleged), or that it was irrational to abolish the committal fee generally, if the only matter that was sought to be addressed was unnecessary committals. Neither of these requirements has been established. Furthermore, unnecessary committals were not the only target for the proposal. Saving money was another. As it was put in the Ministerial Submission of 26 April 2011:

The work in the magistrates’ court involved in the representation of a defendant in an ‘either way’ case whose case is committed to the Crown Court may be very substantially greater than that for a defendant whose case is sent. Nonetheless, I do not think that to provide equal remuneration for both kinds of case is necessarily irrational or of itself renders the measure unlawful. Moreover, there will be cases in which significant work is performed in the magistrates’ court in sent cases, for example on applications for bail and if there are arguments on reporting restrictions; equally, if a defendant is adamant that he wants to plead not guilty and have a trial in the Crown Court, or if it is obvious that this course is appropriate, his legal representative may be able to postpone detailed consideration of his case until after committal to the Crown Court in much the same way as he would do for a sent case.

The authorities relied upon by the Law Society do not establish that to make equal provision for the remuneration of work involved in different cases is of itself unlawful. Matadeen v Pointu [1999] 1 A.C. 98 was a very different case, in which the measure was upheld as not infringing a constitutional prohibition of discrimination. Ghaidan v. Godin Mendoza[2004] UKHL 30[2004] 2 A.C. 557 is an unlawful discrimination case. The guarantee of equal treatment referred to at paragraph 132 is of equality between individuals, not between items of work. R v. Inland Revenue Commissioners, ex p. National Federation of Self-Employed and Small Businesses Ltd [1982] A.C. 617 similarly was concerned with the duty owed to the general body of taxpayers not to discriminate unfairly between one group of taxpayers and another. Discrimination between individuals is a very different thing from discrimination (or a failure to discriminate) between different items of work.

I do not understand the Law Society to contend that the Lord Chancellor’s decision to remunerate sent cases and committed cases similarly was irrational in the sense of being perverse, but in any event it has not shown that the decision was such.

The Law Society’s case is that the purpose, or one of the purposes, of the abolition of the committal fee was to put pressure on legal representatives to advise their clients in either-way cases not to elect for trial in the Crown Court.

I accept that if this were the purpose, or a purpose, of the abolition of the committal fee, it would be improper and would render the abolition unlawful. Any constraint on defendants who have the right to elect for jury trial must be effected in primary legislation, and I do not think that the power conferred by Parliament to make remuneration orders can lawfully be used for this purpose.

However, it is a very different thing to remove financial incentives favouring jury trial, or to create incentives for legal representatives to address issues as to plea and venue as early as possible. These considerations are within the scope of the statutory power, which expressly requires the Lord Chancellor and the LSC to seek value for money.

There is nothing in the Consultation Paper to justify this allegation of the Law Society. The following extracts from the MoJ’s documents indicate that the MoJ’s and the Lord Chancellor’s purposes were of the lawful nature to which I have referred in the preceding paragraph of my judgment.

The Ministerial Submission of 11 August 2010:

The Ministerial Submission of 16 September 2010:

The Ministerial Submission of 26 April 2011:

The notes of the meeting of 14 July 2010:

The notes of the meeting of 22 July 2010:

The notes of the meeting of 21 September 2010:

The notes of the meeting of 3 March 2011:

This ground for judicial review has not been made out. I would only add that I would have thought that if the abolition of the committal fee had the effect that it is alleged was its purpose, that would have been apparent to solicitors as soon as the Consultation Paper was published. One is bound, therefore to wonder why this ground made a very late appearance in the claim.

Section 149 of the Equality Act 2010 provides, so far as material:

The Lord Chancellor’s case is that he fulfilled this duty. The Consultation Paper (which predated the coming into force of the 2010 Act) included an initial Impact Assessment. A more detailed Equality Impact Assessment was published with the Consultation Paper of November 2010. Paragraphs 7.32 to 7.36 were as follows:

According to Mr MacMillan, none of the responses to the Consultation Paper suggested that there would be a discriminatory effect of the abolition of the committal fee. A further EIA was carried out after the consultation. Mr MacMillan’s evidence is as follows:

Mr MacMillan accepts that the MoJ did not consider that solicitors might discriminate between defendants, choosing to represent only the able English-speaking and literate. I do not find this surprising. According to Mr MacMillan, the MoJ did not think that solicitors would decline to act for the mentally disabled or non-English speakers (in relation to the latter, bearing in mind that the fee of an interpreter was to remain, and did remain, separately payable). There is no evidence that anyone thought this a real risk, and it certainly was not put to the Ministry at the time.

I would accept that if a substantial withdrawal of legal representation for defendants in ‘either-way’ cases had been expected, that would adversely affect the mentally disabled and the non-English speaker more than other groups. However, for the reasons I have set out above, I have concluded that the Ministry in its market sustainability consideration took due account of the need to maintain legal representation, and it did not consider that there would be a lack of legal representation in committal proceedings.

In my judgment, the Law Society has not shown that there was any breach of the section 149 duty.

Mr Grodzinski fairly accepted that the ground based on Article 6 of the European Convention on Human Rights was dependent on the Law Society establishing one of the other grounds of challenge. Leaving aside the Lord Chancellor’s contention that the Law Society is not a victim of any alleged breach of the Article 6 Convention right, and therefore has no standing to bring judicial review proceedings in respect of it, in order to succeed it would have to show that the abolition of the committal fee would result in breaches of the Article 6 right to a fair trial. For the Order to have been unlawful when made, which is the case for the Law Society, this would have to be shown as at the date the Order was made. This has not been shown. Subsequent experience might arguably lead to the conclusion that the Lord Chancellor was under a duty to review and to change the remuneration provisions. The evidence before the Court at present, however, is equivocal, and in any event this is not the way the case has been presented.

No one with any acquaintance of the Courts could not be mindful of the very serious financial pressures that cuts in legal aid have caused to solicitors and barristers alike. However, for the reasons I have endeavoured to set out, it has not been shown that the abolition of the committal fee by the Amendment Order was unlawful. I would therefore dismiss the claim for judicial review.

I agree.