The Bar Council has offered the government an ‘olive branch’ to avoid judicial review proceedings if it withdraws the current criminal fee proposals and negotiates a way forward.

In February, the Bar Council and Criminal Bar Association launched judicial review proceedings in relation to two consultations published by the Ministry of Justice and the Legal Services Commission on criminal legal aid. They concern advocates’ graduated fees and very high cost cases (VHCC) respectively.

The bar’s principal basis of claim is that the government has failed to comply with its duty to consult properly. The Bar Council claims that its action seeks to achieve a coordinated approach to the process and ensure that a proper impact assessment is conducted, bearing in mind statutory equality duties.

It follows the MoJ and LSC’s rejection of its request to combine the deadlines for responses to the consultations, and join them with a further proposed consultation on single graduated fees.

A letter sent to the government by London firm Bindmans on behalf of the council last week said that ‘given the acknowledged link between the present consultations, the only proper course is to withdraw them and to enter into discussions with the profession’, to arrive at a ‘coherent set of measures’, which will achieve the required savings in an ‘orderly way’.

Bindmans said the MoJ’s latest consultation on restructuring the delivery of criminal defence services, which includes proposals for ‘end-to-end service’ including VHCC work, added ‘further confusion’.

The letter said: ‘What is now clearer than ever is that the current proposals are no more than a precursor to more extensive proposals for savings which will be brought forward in the future.’

However, the letter said that although the council considers there are grounds to bring a claim for judicial review, it would prefer to avoid it. It invited the MoJ and LSC to withdraw the current proposals and agree to engage in a ‘wide-ranging’ discussion to enable a ‘fresh lawful’ consultation exercise.

CBA chairman Paul Mendelle said: ‘We have offered them an olive branch. We’ll sit down and discuss how we can make savings in the criminal justice system.

‘We’d prefer not to have to litigate and we’re taking advice every step of the way, but judicial review is an option which remains on the table,’ Mendelle added.

In a joint statement, the MoJ and LSC said they had received requests for further information from lawyers on behalf of the council and would respond in due course.