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Law Report: Regulations for legal aid cuts upheld: Regina v the Lord Chancellor, Ex parte the Law Society - Queen's Bench Divisional Court (Lord Justice Neill and Mr Justice Mantell), 21 June 1993

Even if the Lord Chancellor had failed to consult the Law Society before introducing regulations which reduced eligibility for legal aid, the court would not declare the regulations invalid since additional consultation would not have led to any different result.

The Divisional Court dismissed the Law Society's application for judicial review of regulations made by the Lord Chancellor under the Legal Aid Act 1988.

The system of legal aid funded by the state was introduced in 1949. The increasing cost of legal aid to public funds became a cause for concern in the mid 1980s.

In November 1992, the Lord Chancellor announced proposals for changes to the financial eligibility conditions for legal aid in order to contain the rise in legal aid expenditure over the next three years. Regulations were to be laid in April 1993.

In January 1993, the Law Society made alternative proposals for savings. Although the Lord Chancellor expressed interest in those proposals, the savings would not achieve the targets for legal aid spending.

In April, four statutory instruments amending eligibility for legal aid came into force: the Civil Legal Aid (General) (Amendment) Regulations 1993 (SI no 565); the Civil Legal Aid (Assessment of Resources) (Amendment) Regulations 1993 1993 (SI no 788; the Legal Aid in Criminal and Care Proceedings (General)(Amendment)Regulations 1993 (SI no 789) and the Legal Advice and Assistance (Amendment) Regulations 1993 (SI no 790).

The Law Society applied for judicial review of the regulations on the grounds, among others, that (1) they were unlawful in that they frustrated rather than promoted the purposes of the 1988 Act; (2) they were so unreasonable as to be irrational; and (3) they were made without proper consultation with the Law Society.

Michael Beloff QC, Robin Allen and Helen Mountfield (Bindman & Partners) for the Law Society; David Pannick QC and Mark Shaw (Treasury Solicitor) for the Lord Chancellor.

LORD JUSTICE NEILL said that the purpose of the 1988 Act was to establish a framework for the provision of advice, assistance or representation which was publicly funded. The Lord Chancellor was empowered by section 34(1) to make such regulations as appeared to him necessary or desirable for the purpose of establishing the framework. Parliament intended that the framework would have to take account of public funds available from time to time. The argument that the regulations were made outside the Lord Chancellor's powers was rejected. Although it was unfortunate that the restrictions on eligibility had to be made, hard and difficult choices had be made by those responsible for the apportionment of finite resources between competing public services. The choice that was made could not be stigmatised as irrational.

The Law Society had a legitimate expectation to be consulted before far-reaching changes were made. However, proposals announced in November 1992 were put forward to meet an urgent and critical situation and the announcement did not involve any procedural impropriety.

Even if there was failure to consult in October and November 1992 and even if the 'consultation' which took place between November 1992 and March 1993 was flawed, there was no sufficient basis on which the court could hold that the regulations should be declared to be invalid. The counter proposals put forward by the Law Society fell a very long way short of what was required. Additional consultation would not have led to any materially different result being achieved within the prescribed time limit.

This was an unhappy case. Urgent decisions had to be taken, but there was no clear recognition on the Government side of the fact that the Law Society was capable of looking beyond its own sectional interests and of offering advice and guidance as to what the public interest required. The Law Society had unrivalled knowledge and experience of what access to justice meant in practice. It was hoped that a satisfactory dialogue could be resumed in the near future. However, the application must fail.