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High Court rules that legal aid fees do not provide fair pay to defence solicitors

Justice minister David Ford introduced the reforms to payments for criminal work in May
Justice minister David Ford introduced the reforms to payments for criminal work in May

NEW rules for legal aid fees do not provide fair pay to defence solicitors in some criminal cases, the High Court ruled yesterday.?

A judge also identified a breach in the impact assessment carried out around Justice Minister David Ford's reforms.

But despite declaring the decision making process unlawful in two areas, Mr Justice Maguire refused to quash the rules.

Instead, he said it was up to the Department of Justice to now rectifies the situation "speedily".

His verdict came in a joint challenge to the legal aid fee cuts mounted by solicitors and barristers.

Mr Ford introduced the reforms to payments for criminal work in May, insisting they are necessary and just.

With the Minister facing a reduced departmental budget, he has maintained that Northern Ireland cannot continue to fund the UK's highest level of legal aid pay.

But lawyers have taken industrial action in response to the cuts, withdrawing professional services in criminal cases as part of the protest.

Judicial review proceedings were launched by the Bar Council and the Law Society.

They argued that the two professional bodies are being denied fair or reasonable payment, and that the cuts could result in innocent defendants being convicted.

An allegedly flawed impact assessment, consultation process and statistical comparative analysis renders the rules unlawful, according to their case.

Mr Justice Maguire held that no ministerial irrationality had been established. He also rejected claims that consultation was carried out with a preordained outcome.

However, he decided that the rules failed to provide fair pay for work done by defence solicitors in the period between their client being arraigned and going on trial in cases where the accused pleads guilty within that time frame.

The omission by the rule-making authority breaches key principles and purposes, as well as being "repugnant" to the Legal Aid, Advice and Assistance (Northern Ireland) Order 1981, the judge said.

A further flaw was identified in the impact assessment around the new rules. The applicant's legitimate expectation that the Department's proposals would be subject to properly carried out impact assessments of economic impact, rural impact and regulatory impact assessment was breached, he confirmed.

Despite those findings, he said that striking down the 2015 rules would be a disproportionate reaction. Making the declaration of unlawfulness aimed at ensuring the Department remedies the situation, he stressed: "The court wishes to make it clear that the failure to carry out proper impact assessments in this case is a serious matter which should not be repeated."

Solicitors and barristers had packed the courtroom to hear the verdict. Speaking outside, Gerry McAlinden QC, chairman of the Bar Council, said: "It would be wholly inappropriate for the Department to continue to implement rules which the court has held to be unlawful in two respects."