Successful challenge of Civil Legal Aid (Remuneration) (Amendment) (Coronavirus) Regulations 2020

11 August 2020

The following has been accepted by the Defendants:

• The Amendment Regulations were unlawful on the basis that the requirement to consult and duty of inquiry was inadequate and they will be revoked.

The following will be actioned:

• A statutory instrument will be laid before Parliament to revoke the Amendment Regulations by the end of September 2020
• The Lord Chancellor has agreed to make a temporary transitional amendment to the 2018 Standard Civil Contract (by September 2020) meaning that all immigration and asylum appeals lodged using CCD, will be remunerated on an hourly rates basis.
• Data will be gathered for a future consultation on the funding of work under CCD.
• That consultation will open at the end of 2020 at the earliest.

Background

The Amendment Regulations provided for a revised fee regime for legal aid providers operating under the new “Core Case Data” (“CCD”) platform, but did not reflect the additional work solicitors and barristers are now mandated to undertake to properly represent their clients; in particular the compulsory appeal skeleton argument (ASA) required in every case.

Without consultation or any evidential basis, the impact of the Amendment Regulations meant that legal aid providers faced not being paid for compulsory work which threatened access to justice; leading to barristers’ chambers and solicitors refusing to draft the ASA under CCD.

The legal challenge focused on the failure of the Ministry of Justice and the Lord Chancellor to consult on the content of the Amendment Regulations prior to enacting them and also failing to undertake a rationale process of enquiry to identify the foreseeable impact on the availability and quality of legally aided representation for some of the most vulnerable members of society.

The challenge was brought on the basis that the Amendment Regulations were not rationally or proportionately connected to the object and purpose of the fixed-fee scheme for controlled legal representation, because of the disproportionate impact on the right of access to justice and were therefore ultra vires of LASPO.

The legal team was made up of Sonali Niak QC (Garden Court Chambers) Tasaddat Hussain (Garden Court North Chambers) and James Howard, Fountain Solicitors. They along with Stephen Knafler QC (Landmark Chambers) also act for the same four claimants (MT & others) and five additional claimants represented by Shivani Jegarajah (Justitia Chambers) and Nabila Mallick (No. 5 Chambers) instructed by David Benson solicitors in a linked challenge to the lawfulness of the Presidential Practice Statement (No. 2).

CRA and others were represented by Duncan Lewis solicitors and settled their claim we understand on a similar basis.