Dispatches from the legal aid front

The legal aid story of 2015 was really the struggle to make the government listen to reason.

2015 commenced where 2014 left off, with the judicial review
of the duty solicitor contracts procurement process, after a stay was ordered on 23 December 2014, pending litigation.

Litigation months

During the judicial review hearing, the London Criminal Courts Solicitors' Association (LCCSA), the Criminal Law Solicitors' Association (CLSA), and the Law Society argued that the government had failed to address the concerns flagged up in its own reports when pressing ahead with proposals that would see the closure of 70 per cent of providers. Chris Grayling preferred to contest litigation rather than consider the profession's legitimate concerns.

Regrettably, the claim and the subsequent appeal failed, and the injunction was lifted at the end of March. The Ministry of Justice (MoJ) insisted that, despite the uncertainty surrounding the upcoming general election and warnings over the shortcomings of the process, it was pursuing the costly new procurement exercise.

The general election saw Michael Gove replacing the - justly - maligned Grayling. We saw the new Lord Chancellor pronounce that he intended
to move away from the
two-tier justice system while simultaneously announcing
an intention to pursue two-tier contracting for criminal solicitors, along with the 8.75 per cent cut to legal aid fees. This was despite evidence from almost 200 providers responding to a flash survey carried out by the Law Society that they had had to make redundancies or close
as a result of the previous cuts.

Gove, whether because he
was ideologically wedded to dual contracts or because he
was powerless to stop the
'train that had left the station', would not reconsider his predecessor's plans.

Strike action

The second cut in 15 months, coupled with the prospect of the closure of the majority of firms, finally pushed the profession to take action.

Solicitors are not a militant lot, and the competitive nature of the industry has always made the conditions for direct action difficult, but for a remarkable six-week period over the summer there was a united defiance, with solicitors initially refusing to attend on any new matter other than in compliance with duty rota obligations, before focusing the action on the Crown Court for the final spell.

The action ended as Gove agreed to meet the leadership
of the LCCSA, CLSA, and Big Firms Group. There was never any pretence that the agenda was a common one: some wanted to see the end of two tiers and others were simply objecting to the cuts.

Inevitable implosion

Perhaps we could have
spared ourselves the effort and waited until the awards were announced, as that seems to be the moment in which this whole ill-thought-out scheme fell apart.

For all the government's insistence that everything was proceeding on schedule, it was clear the process was not built on firm foundations. First, the issuing of the contract awards was delayed, and then, five months after the tender process closed, out of the shadows stepped the whistleblower who called into question the validity of the whole process.

After various legal challenges were lodged by more than 100 claimants, the process, which was originally due to commence in October 2015, was suspended until April 2016. So, we end the year where we started: with duty solicitor contracts nudging along, yet still no comfort of certainty. Short of a remedy that allows for a re-marking of all the procurement areas under challenge, there is little likelihood of the scheme continuing with any credibility.

When we reflect back on what hasn't been achieved in a year of litigation, protests, and bids for contracts that may never be, we see a war with no winner - just needless casualties in the form
of job losses and firm closures,
and the thousands wasted on litigation and in the employment of assessors. That is before taking into account the time expended when the greater focus could have been on making our system fair and efficient. One can only hope that 2016 represents a year of engagement and rebuilding.

There has been much talk of reviews and blank canvases:
now is the time for those that approach reform with an open mind to work towards the same endgame. The Labour front bench has already initiated a non-partisan review. The newly appointed leaders of the CLSA and LCCSA, Zoe Gascoyne and Greg Foxsmith, are developing
a positive relationship with the MoJ. The days of secret accords and flimsy treaties at the expense of access to justice
must be well and truly over. There has never been a better time to rebuild the fourth pillar of our welfare state.

Civil legal aid

On the civil front, we are still seeing the erosion of access to justice for ordinary people as the year ends, with the disappointing decision in the residence test appeal, in which the MoJ succeeded in overturning the divisional court’s judgment that the proposed measure was unlawful.

The Rights of Women organisation is preparing for the judicial review appeal on domestic violence regulations at the end of January.

Exceptional funding was set out in parliament pre-LASPO as a safety net so that those outside LASPO would be able to apply for legal aid in exceptional circumstances. In parliament it was stated that 5,000 to7,000 applications were likely. In the first year less than 70 were granted –some of those for inquests, which were always part of a separate scheme.

The Legal Aid Agency (LAA) has now published revised guidance and forms for clients and providers on civil legal aid funding in non-inquest cases. This takes into account the judgment of Mr Justice Collins in IS v Director of Legal Aid Casework and the Lord Chancellor. (The LAA website states that the case is being appealed.) SJ

Jonathan Black is immediate past president of the LCCSA and a partner at BSB Solicitors