Law Report: Standard fee for legal aid work lawful: Regina v Lord Chancellor, Ex parte the Law Society. Queen's Bench Divisional Court (Lord Justice Leggatt and Mr Justice McCullough). 30 April 1993.

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Parliament has given the Lord Chancellor a broad discretion to make regulations for the remuneration of solicitors for legal aid work in magistrates' courts. The Lord Chancellor is entitled to introduce standard fees, based on average costs, which are justified as reasonable over a succession of cases, and which are not assessed by reference to work done in an individual case.

The Divisional Court dismissed the Law Society's application for judicial review of the Legal Aid in Criminal and Care Proceedings (Costs) (Amendment) Regulations 1993 (SI no 934).

The Lord Chancellor, having consulted the Law Society, decided to amend the existing system for the remuneration of solicitors by hourly rates for certain classes of legal aid work in magistrates' courts and to exercise his power under section 34 of the Legal Aid Act 1988 to make regulations to introduce a standard fees scheme. The standard fees will be based, not according to the work done in individual cases, but on average costs. Solicitors would experience gains in some cases and losses on others. The regulations are due to come into force on 1 June 1993.

The Law Society argued, inter alia, that (1) the standard fee scheme is illegal in that the imposition of fees other than by reference to individual cases is illegal; and (2) the scheme is irrational in producing less than reasonable remuneration and undermines fundamental rights of access to the courts since solicitors might be compelled to turn down certain work and legally aided clients might be apprehensive that their solicitors were guided by considerations of their own income and not their clients' interests.

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

LORD JUSTICE LEGGATT said that the point of introducing a system of standard fees was to simplify and cheapen the method of paying fees and render the control of them more efficient. Fees paid under such a system were not directly tailored to individual cases, but assuming that the total sum available for the remuneration of solicitors remained unchanged, the remuneration of a particular solicitor would remain unchanged. Such variations in remuneration between the new and old scheme would even out over a number of cases.

There was nothing in the Act to indicate that Parliament intended to outlaw that method of payment. Although the Act provided for individual persons to be represented, it did not require assessment of work done in each individual case.

The Act's purpose was to establish a framework for the provision of legal aid. Parliament had prescribed the factors in section 34 (9) for the Lord Chancellor to take into account. Any method of remuneration was also subject to Treasury consent. The Lord Chancellor's exercise of discretion was not restricted to a requirement to provide remuneration on a case by case basis.

On the contrary he had been given a broad discretion to make such regulations as appeared to him necessary or desirable for giving effect to the Act, having regard to the factors in section 34(9).

The submission that the Lord Chancellor was obliged to arrive at a result which was reasonable for each individual case was rejected. The fact that a scheme worked less generously in some respects than in others did not suggest illegality.

The argument that solicitors might eschew certain types of work was unworthy. It was improbable that litigants might suspect that their solicitors were not giving proper attention to their work. There was nothing about the scheme which should prompt the intervention of the court on the ground that the Lord Chancellor's exercise of discretion was irrational. The Lord Chancellor was bound to try to ensure that the introduction of standard fees did not increase the burden on the public purse.

It was no part of the court's function to adjudicate on the merits of an administrative scheme. The grounds of challenge were strictly limited. Once the court was satisfied the scheme was not illegal and that the decision to introduce the scheme in magistrates' courts was not so absurd that the Lord Chancellor might be supposed to have taken leave of his senses, the court's duty of supervision was discharged.

The Lord Chancellor had exercised a broad discretion accorded him by Parliament. He had to take into account not only public policy but also the expenditure of public money. The Law Society might wish to take stock of the wisdom of continuing its challenge. It might do better to wait and see how the amended scheme worked. The application failed.