A year of Grayling's failings ends with Law Society seeking judicial review

The Law Society will be seeking a judicial review of the Ministry of Justice's (MoJ) legal aid crime duty tender process, the solicitors' representative body has announced.

President of the Law Society, Andrew Caplen said that in the interests of access to justice, the public and the legal profession, the Society had decided to seek a judicial review of the legal aid crime duty tender process.

"In our opinion, the process creates a serious risk of market failure which could have major implications for society as well as the profession. We know that our members have concerns about their livelihoods, but also more widely about the impact the outcome of the process will have on access to justice for the most vulnerable in our society," said Caplen.

The legal profession was vociferous in its condemnation of the government's announcement in November to continue with its plans for two-tier contracts for criminal legal aid as well as a second fee cut of 8.75 per cent next year.

This completes a miserable month for Grayling, who has already suffered a humiliating defeat in the High Court over the prisoner 'book ban'. Mr Justice Collins openly criticised the Lord Chancellor, saying the reference to books as a "privilege" was "strange" and "absurd".

Festive period

December has been far from a festive period for Chris Grayling. Yet the month started so well after the justice secretary won his debate in the Commons over amendments proposed by peers to the highly contentious reforms to judicial review.

With the Criminal Justice and Courts Bill 'ping-ponging' between the Commons and the Lords, Grayling must have thought it would be but a matter of time before his reforms were passed. However, the Lord Chancellor was dealt an unexpected blow when he was forced to admit to misleading the Commons having "inadvertently" suggesting clause 64 of the Bill contained a provision for the court to grant permission for judicial review in situations where conduct was highly likely to have not made a difference in "exceptional circumstances".

The government subsequently suffered its 100th defeat in the Lords since coming to power in May 2010, with peers overwhelmingly backing amendments aimed at maintaining the discretion of judges in the judicial review process. Conservative peer Lord Mackay said: "I would like to see this amendment going back to the House of Commons, not necessarily to change the result - that is a matter for the Commons - but so that the debate should proceed on a basis that is 110 per cent correct."

Non-lawyer position

The appointment of Grayling as the first non-legally trained Lord Chancellor in over 400 years is arguably the strangest since Sir Christopher Hatton's in 1587. This week the House of Lords constitution committee concluded there was a "distinct advantage" in having a Lord Chancellor with a "legal or constitution background". This was despite Grayling giving evidence to the committee in October that he could see "no disadvantages" in the post being occupied by a non-lawyer. In its full report, the committee said the Lord Chancellor's oath to "respect the rule of law" should be changed to "respect and uphold the rule of law".

The committee's report continued: "We invite the government to agree that the rule of law extends beyond judicial independence and compliance with domestic and international law. It includes the tenet that the government should seek to govern in accordance with constitutional principles, as well as the letter of the law. Judicial independence is a vital element of the United Kingdom's uncodified constitution. That its defence is a core part of the Lord Chancellor's role is uncontested. The Lord Chancellor must ensure that the judiciary are free to act without undue pressure from the executive, that the executive respects the outcome of court judgments, and that the legal system is adequately resourced."

Legal reforms

In truth, the events of December can be seen as a microcosm of 2014. The year began with criminal lawyers in Liverpool voting for a 'work to rule' against the CPS, which incidentally coincided with a 'half-day of inaction' by criminal lawyers across the country. Protests were led by the Criminal Bar Association, outside crown courts from Southwark in London to Manchester, Newcastle, Bristol and Cardiff. While at the Old Bailey, all but one of the 18 courts stood empty.

In February the justice secretary published 'round two' of the judicial review curbs and announced there would be a new charge to be imposed on convicted criminals to help cover the cost of the courts. Both decisions drew widespread criticism from the legal profession.

The justice secretary followed these proclamations by announcing that solicitors' fees would be cut by 8.75 per cent for new cases starting on or after 20 March, which was described as "disastrous" by the chairman of the Criminal Law Solicitors Association. The MoJ only compounded matters further when it finally released its Otterburn report, which recommended that any fee reductions should take place "after, not before the market has had a chance to consolidate".

March saw barristers return 305 instructions in the first seven days of their 'no returns' protest against the legal aid cuts. However, the united front of criminal barristers and solicitors opposed to the cuts broke down spectacularly when barristers agreed to suspend their protests after concessions from the justice secretary. His plan to divide and conquer the legal profession was perhaps Grayling's only substantial victory of 2014.

The Lord Chancellor returned to the thorny issue of judicial review in April claiming that such actions are instigated by pressure groups who use the "legal system as a weapon" to force the government to change its mind. He also rounded on lawyers "make a healthy living by finding more and more varied ways to challenge government in court".

'Grayling gimmick'

June found Grayling under attack yet again from the legal profession but this time on a different front. Personal injury lawyers argued the Social Action, Responsibility and Heroism Bill (SARAH) protects the negligent and not the injured. Grayling said 'SARAH' would 'slay health and safety culture' and protect the public from 'compensation culture', despite a report from Lord Young in 2010 finding that such a culture was more 'perception rather than reality'.

The Bill was described in July by one Conservative MP as being the subject of 'derision and confusion', while shadow justice secretary Sadiq Khan MP said the legislation was "the most embarrassing and pathetic Bill the Ministry of Justice has published". SARAH was also roundly criticised by peers in November, with Lord Beecham describing it as "another Grayling gimmick", while Lord Pannick said it was "a statement of the legally obvious".

Meanwhile, public support for the legal aid cuts significantly declined according to research published in July. Published to mark the 65th anniversary of the start of the legal aid service, a poll showed the number of people agreeing with the proposition that 'Legal aid should be cut to reduce the government spending deficit' had fallen to 23 per cent. Moreover, the numbers of those disagreeing with the statement has risen to 49 per cent.

The rest of the summer saw Grayling vow to tackle insurance fraud and dishonest whiplash claims. This involved a cut to the fees for medical reports, setting new limits on the scope of medical evidence and discouraging 'pre-med' offers. But perhaps the most startling revelation from the justice secretary came during the Conservative Party Conference when he stated that, if in power after the coming election, a Conservative government would curtail the role of the court in the UK and replace the Human Rights Act 1998.

Grayling began September by being taken to task over his department's administration of prisons. A report from the Howard League for Penal Reform claimed that between 850 to 1,650 current prisoners may have been the victims of sexual assault, rape or coercive sex. But, perhaps even more staggering, was the accusation that the research had been hampered by the MoJ. The news followed official statistics published by the MoJ revealing 88 prison suicides in the 12 months to the end of March 2014. A 69 per cent increase suggested something was 'rotten' in what Grayling has referred to as his "prison estate".

More embarrassment was to come after the London Criminal Courts Solicitors' Association (LCCSA) and the Criminal Law Solicitors' Association (CLSA) won their judicial review challenge of government reform to the criminal legal aid. The High Court ruled the Lord Chancellor had acted 'unlawfully' after failing to disclose the findings of two key reports.

In response to the ruling, the MoJ published a further consultation, inviting comments from the profession on the undisclosed reports, albeit for the brief period of just three weeks. The MoJ later announced it would push through with its hotly contested cuts but was willing to increase the number of tender duty provider contracts to 527; just two more than was originally proposed in February.

Goodbye 2014

The Lord Chancellor lost yet another judicial review in October. This time it was over his decision to make mesothelioma sufferers pay up to 25 per cent of their compensation for legal and insurance costs should they win their case. Giving his judgment in the High Court, Mr Justice Williams said: "No reasonable Lord Chancellor faced with the duty imposed on him by section 48 of the Act would have considered that the exercise in fact carried out fulfilled that duty. This is not a case in which the procedural failure was minor or technical in nature."

The justice secretary must also have been embarrassed following a heated encounter with the Public Accounts Committee (PAC) in early December, when senior civil servants at the MoJ came under fire from MPs who grilled them over the pace and extent of the government's £300m cuts to civil legal aid. MoJ private secretary, Ursula Brennan, confirmed the pressure to rush legal aid cuts meant it was "not possible to do research" into what impact the cuts would have and also admitted "the government was explicit it needed to make these changes swiftly".

There was a time when such public and consistent failures of office would lead to a ministerial resignation, but if the legal profession is expecting Grayling to fall on his sword before the 2015 general election, it is likely to be disappointed. Nevertheless, one of the most unpopular Lord Chancellors in living memory will be happy to say goodbye to 2014.

 

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