On 27 May 2020, Duncan Lewis Solicitors served a letter before action on the Lord Chancellor challenging the lawfulness of the Civil Legal Aid (Remuneration) (Amendment) (Coronavirus) Regulations 2020 (the Amendment Regulations) on behalf of four of its clients.
The Amendment Regulations were laid before parliament on 18 May 2020 and will come into force on 8 June 2020. They are designed to respond to the introduction of a new procedure at the First-tier Tribunal (Immigration and Asylum Chamber) which specifies that immigration and asylum appeals are to be decided by remote hearings where possible, and that Appellants must file and serve a detailed skeleton argument before the Tribunal decides whether a hearing is necessary, and if so, whether that hearing can be carried out remotely using video-link technology.
The Amendment Regulations amend the fee regime for legal aid providers operating under the new Online Tribunal Procedure, but does not adequately reflect the additional work solicitors and barristers must undertake to properly represent their clients. Without consultation, or any apparent evidence base, the amendment increases the likelihood that legal aid providers will be undercompensated for their work and places access to justice at risk. A wide cross section of leading barristers’ chambers have already stated that they will not take on cases under the new regime, and ILPA, the Law Society and the Bar Council have all raised serious concerns.
The team is challenging the failure of the Lord Chancellor to consult on the content of the Amendment Regulations before laying them before parliament, and his failure to make reasonable inquiries as to the likely effects of the Amendment on the availability and quality of legally aided representation. The challenge sets out that the Amendment Regulations are not rationally or proportionately connected to the object and purpose of the fixed-fee scheme for controlled legal representation, and that they are ultra vires of LASPO as they constitute a disproportionate restriction on the right of access to justice.
The legal team at Duncan Lewis is made up of Toufique Hossain, Jeremy Bloom, and Simon Robinson. They have instructed Chris Buttler and Eleanor Mitchell (Matrix Chambers) and Ali Bandegani (Garden Court Chambers).