The government could face legal action over its decision to not backdate its criminal legal aid fee increase for current cases.

A controversial 15% fee uplift coming into force in September will apply only to new cases. According to the Criminal Bar Association (CBA), the Ministry of Justice has stated that it cannot apply any fee increase to work done in the future under existing legal aid representation orders because it would require a retrospective change to a contractual relationship.

Today, Mishcon de Reya, acting for the CBA, sent the Ministry of Justice a letter before action which asserts the government’s position is wrong in law. Mishcon's letter states that the lord chancellor holds the power to both increase and decrease fees payable to criminal advocates under the legal aid regime. There is no restriction preventing fees being altered in respect of work yet to be undertaken, the letter says. 

The government’s decision is also not supported by the facts, Mishcon adds. The ministry previously made changes to fees payable under existing legal aid representation orders in respect of future work. In 2013, a 30% reduction of fees was applied to existing representation orders in relation to the most serious, complex and long-running criminal matters.

This is the second letter in recent days that Mishcon has sent to the ministry. The firm wrote to Dominic Raab’s department last week raising concern that court staff had been instructed to report the names of counsel not attending court due to strike action.

A spokesperson for the ministry said it was ‘categorically untrue’ that Raab or the department had requested the names of any barristers. The department was ‘monitoring the number of disrupted cases due to strike action by the Criminal Bar Association to assess the impact on the justice system’.