Bar Council to launch legal action against MoJ

Monday 08 February 2010 by Catherine Baksi

The Bar Council and the Criminal Bar Association are set to take the government to court for the first time in 20 years over what they claim are ‘inadequate and unfair’ consultations on new fees for criminal legal aid work.

They have instructed solicitors to take the first step towards a judicial review of the consultations published respectively by the Ministry of Justice and the Legal Services Commission on advocates’ graduated fees and very high cost (criminal) cases.

The bar’s principal basis for the claim is that the consultation exercise is ‘inadequate and unfair’.

In a press release issued today the Bar Council said its decision to proceed had ‘not been taken lightly’ and it had been more than 20 years since it last instituted proceedings against the government.

It said the Bar Council had consistently put forward proposals designed to safeguard and promote the administration of justice, without seeking recourse to legal action, and had requested a change of approach from the MoJ and LSC.

The Bar Council said the conduct of the consultation process – with two separate papers on issues that are ‘inextricably linked’ and a third unpublished paper on the introduction of a single graduated fee – was so flawed that judicial review is the only option.

Bar chairman Nicholas Green QC said: ‘The Bar Council has thought long and hard about this decision but the process of consultation on these proposals, frankly, has been disjointed and chaotic.’

‘Our decision to take the first step towards bringing proceedings for judicial review has been taken after very careful consideration of the options available to us.’

‘We asked the MoJ and the LSC to adopt a co-ordinated and fair approach to decision-making. But the government has refused to alter its present consultation process and did not even respond to our request for relevant data,’ said Green.

CBA chairman Paul Mendelle QC said: ‘Our concern is not simply about fee levels or the interests of the profession – it is about the need to ensure that the justice system functions well, and that criminal trials are carried out effectively and in the public interest.’

‘These consultations affect the future of the criminal justice system including some of the most lengthy and complex criminal cases. The government is undermining the system it claims to protect; we cannot stand by and let this happen,’ he added.

An MoJ spokesman said: ‘The MoJ and the LSC received a letter from the Bar Council and CBA on 21 January requesting the deadlines for our current consultations on advocates’ graduated fees and very high cost cases be extended.

‘We consider that the current deadlines give adequate time for stakeholders to respond properly and fully to both consultations. We hope the Bar Council and CBA will reconsider their position.

‘The proposals to pilot a single graduated fee will be consulted on in due course.’