MoJ: Withdrawing rules
Solidarity – or not – between legal aid lawyers is under the spotlight this week, with solicitors from 200 law firms coming together to force a change to immigration fees, but criminal firms falling out over Saturday work.
Earlier this week, the Ministry of Justice (MoJ) dropped plans to change the way the Legal Aid Agency pays for immigration appeals in the face of two judicial reviews claiming that it had not undertaken a proper analysis and consultation before making the changes.
The House of Lords’ secondary legislation committee criticised the MoJ for beginning the consultation just a day before the statutory instrument was laid in Parliament.
In March, over 100 firms initially wrote a joint letter protesting about the plans to combine the new regime with an online portal that meant they had to file a full appeal bundle and skeleton argument at a very early stage of the proceedings.
They complained that though a higher fee was superficially on offer compared to before (£627), it did not reflect the additional work solicitors and barristers had to undertake. If the case settled, the proposed fee was £227.
Legal Aid Agency rules are that, once profit costs are three times greater than the fixed fee, it funds the case on an hourly rates basis, and practitioners said the new fee meant far fewer cases would ‘escape’ fixed fees as a result.
Further, compared to the previous fees, counsel were effectively being offered £60 to draft the skeleton.
Amie Higgins, immigration solicitor and consultant at DG Legal, said she knew as early as September 2019 that the changes “could cause chaos” and discussed them with Tasaddat Hussain, a barrister at Garden Court North Chambers, who joined her in the campaign and was instructed as junior in their judicial review.
Ms Higgins said that by June, when the judicial review was lodged, they had gathered together over 250 immigration lawyers at over 200 firms.
Fountain Solicitors, a firm based in Walsall but with offices across the western side of the country, instructed Sonali Naik QC from Garden Court as leading counsel.
Under a consent order, the MoJ accepted that the Civil Legal Aid (Remuneration) (Amendment) (Coronavirus) Regulations 2020 were unlawful on the basis that the requirement to consult and duty of inquiry was inadequate.
They will be revoked by the end of next month, with all immigration and asylum appeals lodged using the system remunerated for the time being on an hourly rates basis.
The MoJ will gather data for a future consultation, which will open at the end of 2020 at the earliest.
National legal aid firm Duncan Lewis pursued a separate judicial review, which similarly settled. It instructed Chris Buttler and Eleanor Mitchell of Matrix Chambers, and Ali Bandegani of Garden Court.
Their case had the support of the Immigration Lawyers Practitioners Association, Law Society, Bar Council, Legal Aid Practitioners Group, and Law Centres Network.
Ms Higgins said: “Rallying the troops of immigration lawyers is no mean feat. They are often working for extremely low fees and had to take time off their busy schedules to talk to us.
“It’s very powerful to see a group of practitioners come together outside the representative bodies and achieve such a fantastic outcome.”
She described the way the new regime was rushed through on the grounds of Covid-19 as “very sneaky”.
An MoJ spokesman said: “We have taken on board concerns from the sector and have decided not to replace the fee system for online asylum and immigration appeals.
“It is the right thing to do while we set out our next steps to ensure a fair and proportionate fee scheme for this area of work shortly.”
However, a discussion on solidarity sprang up on Twitter this week after a criminal defence lawyer, @neilsnds, wrote: “Today was the perfect example of why the criminal solicitors’ profession will become extinct.
“There was an understanding between all the firms to oppose Saturday courts [for routine weekday work], and just one more firm to talk to. If we stood united then we could stop the plans in their tracks.
“But one firm, seeing an opportunity to make some money, decided they would not stand with everyone else. One firm. But that’s all it takes. That’s all the encouraging HMCTS needs. One firm. To let down everyone else.
“Ultimately it’s their choice but for the possibility of a few quid now, they don’t realise the damage that they have done to the local profession and how it will end up with all of us having to give up our Saturdays. Short-sightedness and selfishness, it’ll be the death of our profession.”
Some pointed out that the firm in question may have felt it had to taken on the work out of desperation to pay its bills.
The lawyer replied: “Everyone is in that same boat. Everyone. Also if your business is so desperate that you’ll do anything for a few quid, then you really ought to be asking yourself if it’s viable to continue.”
Stephen Nelson, a partner at Kent firm Nelson Guest & Partners, wrote: “This thread sums up all that is wrong with our profession and why, sadly, I think we are already doomed.”
Solicitor turned barrister Oliver Kirk added: “This is really sad, but also no surprise, ever since the dawn of time solicitors have done this to each other and themselves. As you say, it will be the death of the profession.”
Criminal lawyer Richard Stone said: “Can any of us really truly be surprised anymore? Since they started really attacking legal aid in the 90s, the profession has had countless opportunities to stand firm & not give in and, every single time, any hint of a protest has fallen apart.”
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