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.


Suggested Topics
Start your day with The Independent, sign up for daily news emails
Have you tried new the Independent Digital Edition apps?
ebooksA year of political gossip, levity and intrigue from the sharpest pen in Westminster
Latest stories from i100
Have you tried new the Independent Digital Edition apps?
Independent Dating

By clicking 'Search' you
are agreeing to our
Terms of Use.

iJobs Job Widget
iJobs General

Ashdown Group: IT Support Engineer - Growing Law firm

£35000 per annum: Ashdown Group: A reputable law firm based in central London ...

Ashdown Group: Part time Network Support Analyst / Windows Systems Administrat

£30 per hour: Ashdown Group: An industry leading and well established business...

The Jenrick Group: Controls Engineer

Negotiable: The Jenrick Group: A Controls Engineer is urgently required for a ...

Recruitment Genius: Marketing Manager

£32000 per annum: Recruitment Genius: This is an an exciting opportunity to jo...

Day In a Page

Homeless Veterans appeal: 'You look for someone who's an inspiration and try to be like them'

Homeless Veterans appeal

In 2010, Sgt Gary Jamieson stepped on an IED in Afghanistan and lost his legs and an arm. He reveals what, and who, helped him to make a remarkable recovery
Could cannabis oil reverse the effects of cancer?

Could cannabis oil reverse effects of cancer?

As a film following six patients receiving the controversial treatment is released, Kate Hilpern uncovers a very slippery issue
The Interview movie review: You can't see Seth Rogen and James Franco's Kim Jong Un assassination film, but you can read about it here

The Interview movie review

You can't see Seth Rogen and James Franco's Kim Jong Un assassination film, but you can read about it here
Serial mania has propelled podcasts into the cultural mainstream

How podcasts became mainstream

People have consumed gripping armchair investigation Serial with a relish typically reserved for box-set binges
Jesus Christ has become an unlikely pin-up for hipster marketing companies

Jesus Christ has become an unlikely pin-up

Kevin Lee Light, aka "Jesus", is the newest client of creative agency Mother while rival agency Anomaly has launched Sexy Jesus, depicting the Messiah in a series of Athena-style poses
Rosetta space mission voted most important scientific breakthrough of 2014

A memorable year for science – if not for mice

The most important scientific breakthroughs of 2014
Christmas cocktails to make you merry: From eggnog to Brown Betty and Rum Bumpo

Christmas cocktails to make you merry

Mulled wine is an essential seasonal treat. But now drinkers are rediscovering other traditional festive tipples. Angela Clutton raises a glass to Christmas cocktails
5 best activity trackers

Fitness technology: 5 best activity trackers

Up the ante in your regimen and change the habits of a lifetime with this wearable tech
Paul Scholes column: It's a little-known fact, but I have played one of the seven dwarves

Paul Scholes column

It's a little-known fact, but I have played one of the seven dwarves
Fifa's travelling circus once again steals limelight from real stars

Fifa's travelling circus once again steals limelight from real stars

Club World Cup kicked into the long grass by the continued farce surrounding Blatter, Garcia, Russia and Qatar
Frank Warren column: 2014 – boxing is back and winning new fans

Frank Warren: Boxing is back and winning new fans

2014 proves it's now one of sport's biggest hitters again
Jeb Bush vs Hillary Clinton: The power dynamics of the two first families

Jeb Bush vs Hillary Clinton

Karen Tumulty explores the power dynamics of the two first families
Stockholm is rivalling Silicon Valley with a hotbed of technology start-ups

Stockholm is rivalling Silicon Valley

The Swedish capital is home to two of the most popular video games in the world, as well as thousands of technology start-ups worth hundreds of millions of pounds – and it's all happened since 2009
Did Japanese workers really get their symbols mixed up and display Santa on a crucifix?

Crucified Santa: Urban myth refuses to die

The story goes that Japanese store workers created a life-size effigy of a smiling "Father Kurisumasu" attached to a facsimile of Our Lord's final instrument of torture
Jennifer Saunders and Kate Moss join David Walliams on set for TV adaptation of The Boy in the Dress

The Boy in the Dress: On set with the stars

Walliams' story about a boy who goes to school in a dress will be shown this Christmas