Two judges rejected a claim by the Law Society that Lord Mackay, the Lord Chancellor, had acted outside his powers when he introduced a package of cuts 'denying millions access to justice'.
The society argued that the cuts were unlawful because they were inconsistent with the fundamental purpose of legal aid - to ensure 'people of small and moderate means receive access to proper legal advice and to justice'. Since April, only those on income support, or with net earnings of up to pounds 61 a week, now qualify for legal aid. The society estimates that up to 14 million people will be effectively denied access to justice.
Concerns over the issue have been expressed at the highest level. Lord Taylor, the Lord Chief Justice, and Lord Bingham, Master of the Rolls, have both urged the Government to explore other ways of making savings.
But yesterday, in a reserved judgment, Lord Justice Neill said: 'I recognise the force of the submission that there will nevertheless remain a very substantial fraction of the population for whom access to the civil courts, otherwise than by appearing in person, will be beyond their reach in practical terms.
'But hard and difficult choices have to be made by those whose responsibilities include the apportionment of finite resources between competing public services.
'I am completely unconvinced that the choice that was made, though clearly regrettable, could be stigmatised as irrational.'
However, Lord Justice Neill sitting with Mr Justice Mantell said the Lord Chancellor had wrongly taken the view 'in this unhappy case' that the society, which represents 59,000 solicitors in England and Wales, did not have 'sufficient interest' to bring the challenge. 'The Law Society and their members have unrivalled knowledge and experience of what access to justice means in practice.
'It is therefore to be hoped that a satisfactory dialogue can be resumed in the near future.' But he fell short of agreeing with the Law Society that the Lord Chancellor had breached a duty to consult the society before the cuts were disclosed.
Mr Justice Mantell said he thought there was a duty to consult 'once it became apparent that economies of some kind would have to be made'. But he agreed with Lord Justice Neill that in all the circumstances it would be wrong to quash the regulations. It was plain that urgent decisions had to be taken by the Government, and additional consultation with the society would not have produced a materially different result, he said.
The society was ordered to pay three-quarters of the Lord Chancellor's estimated pounds 40,000 legal costs.
Mark Sheldon, Law Society president, said it was considering an appeal. 'It is already clear that the cuts are causing real hardship to a substantial number of people.' On the judges' wishes for renewed dialogue, he said: 'Our task now is to persuade him to reverse them as soon as possible, so that legal aid can again serve its purpose of enabling all those unable to afford legal advice and representation to have access to justice.'
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