Legal Victory and Meeting with New Minister
Dear Colleague,
Legal Victory
As you are aware, Government has consistently maintained that the proposed fee increase of 15% will only attach to new representation orders from the date when the required Statutory Instrument comes into effect.
The proposed date from which that increase will apply to new representation orders is 30 September 2022.
The Ministry of Justice has throughout insisted that it was not legally possible to attach any 15% increase to existing representation orders in the 58,000 backlog because such a change would be retrospective and therefore impermissible.
We have never accepted the MoJ’s interpretation of the law concerning whether a new Statutory Instrument could facilitate a 15% increase to payable fees on existing representation orders.
That is why the CBA took the important and necessary step of instructing specialist counsel and Mishcon de Reya solicitors to challenge the position of the MoJ.
Our lawyers served a Letter Before Claim on 5 July 2022.
On 11 July we received the following response from the MOJ.
In short, the MoJ has conceded that their representation of the legal position was wrong.
Consequent to the threat of litigation, the MoJ therefore now accepts that the Lord Chancellor has the power to increase fees payable to barristers on existing representation orders for “Future Retained Work” ie. work undertaken after the date from which any new Statutory Instrument came into effect.
This is a hugely important victory because it means that there is no legal impediment to increasing fees on existing representation orders.
Whether Government is in fact willing to apply any fee increase to existing representation orders is, of course, a political decision.
That is why the pressure that you have exerted through our combined action continues to be so critical.
Meeting with New Minister
This afternoon, the CBA and Bar Council leadership met with the newly appointed Under-Secretary of State for Justice, Sarah Dines MP. The meeting was constructive.
The CBA took the opportunity to make strong representations to the Minister about the entirely reasonable demands that form the backdrop to the action that is currently being undertaken pursuant to the 81% vote in the last ballot.
To reiterate, these demands include an increase of 25% to AGFS fees, the creation of a pay review body with teeth, further reforms to the AGFS that ensure payment for written work and a more flexible approach to claims for wasted and special preparation, and a second brief fee on section 28 cases.
We also emphasised the substantial level of disruption being caused to court business in consequence of the combined forms of action.
Given the significant concession on the law made by the MoJ, we have urged the Minister to obtain confirmation that Government will apply any increase in fees to all existing cases in the backlog by finding the requisite funding without delay.
The Minister has been left in no doubt that time is of the essence, not least because Parliament will rise for the summer recess on 21 July, and the ongoing disruption is having a profound impact on the progression of cases in the system.
The Minister is also aware that the current CBA action will continue unless and until there is some substantial movement from Government.
We have requested an urgent follow up meeting with the Minister with a view to receiving assurances on the matters we have raised.
We will also be meeting with MoJ senior civil servants on 14 July to discuss progress.
All concerned are in no doubt as to the critical nature of the situation and what is at stake.
We will continue to keep you updated with any developments as they emerge.
The CBA action has always been an essential means to maintain pressure on Government. We therefore proceed with the planned action over the coming days and weeks in accordance with the ballot until we see further movement from Government on the key issues.
Yours,
Jo Sidhu QC Kirsty Brimelow QC
Chair Vice Chair