Grayling's fatal blow?

Friday 19 September 2014 will be a date long remembered by criminal practitioners the length and breadth of the country after the High Court ruled that the justice secretary, Chris Grayling, had acted illegally during a consultation process that forced through multi-million pound cuts to criminal legal aid.

The London Criminal Courts Solicitors' Association (LCCSA) and the Criminal Law Solicitors' Association (CLSA) brought a judicial review against the Lord Chancellor for his reforms, including the reduction of duty provider contracts from the current 1600 to 525 providers, and the 8.75 per cent average fee cuts.

Mr Justice Burnett ruled that the consultation process was "so unfair as to amount to illegality" after the Ministry of Justice (MoJ) failed to disclose two independent expert reports where the Lord Chancellor had relied on, and where the claimants and other interested parties had been deprived of any opportunity to comment on them.

The reports, by accountants KPMG and Otterburn, had provided the foundation for deciding how many contracts for criminal advisory work would be available to solicitors firms and included a number of controversial assumptions.

Faulty consultation

Principal lecturer and pro bono director at Nottingham Law School, Nick Johnson, told SJ: "The decision, though having some unusual features, does not represent a significant development in the law of procedural legitimate expectation; it is, however, from the point of view of the legal aid reforms, a signi cant blow to the Lord Chancellor and will delay what many considered an impractical timetable for reform.

"The law allows a broad discretion to government in how it undertakes consultation and the fact that one element of that process is wrong would not normally cause a court to quash a decision based on a faulty consultation process. However, the failure by the Ministry of Justice to consult fully on both reports prepared for the purposes of deciding how many duty provider work contracts should be available was, in the court's view, clearly and radically wrong."

Johnson added: "In reaching this conclusion, context was clearly very important. The fact that the proposed decision a ected the livelihood of many criminal defence rms, and could have a significant impact on access to justice, were important factors. Though the government may, following consultation, reach the same conclusion, the judgment will certainly delay reform and may result in a substantive change to the original proposals."

David Kirwan, senior partner at Kirwans, described himself as "over the moon, but in a cautious way" following the judgment. "It is the first defeat that Grayling has been subject to and, without wishing to make this battle any more personal than it already is, it is a very significant victory for solicitors and the Bar in this country," he said. "Our two destinies are very much wrapped up together. A viable solicitor's branch of the criminal justice system is vital to the Bar, and vice versa."

Maryam Syed, a barrister practising from 7 Bedford Row, is in agreement: "The professions, at their heart, are united in their position that these reforms will put many long established firms out of business, and affect the access to justice of an individual in their local community. The judge recognised this and observed that it was questionable if a firm could survive long, if at all, on own client work only, the duty scheme providing the lifeblood of work."

She continued: "The imperative for a united strategy and front between all firms and the Bar is clear and recognised but, as with any organisation with a large membership, accord on an agreed way forward from all branches is often difficult to achieve."

Criminal lawyers across the country took to Twitter to vent their relief and celebrate the ruling. Though, not all practitioners were pleased with the judicial review decision. Senior partner at Tuckers Solicitors, Franklin Sinclair, tweeted: "JR has achieved nothing except a slow road to bankruptcy, cuts remain, no consolidation, I hope MoJ appeal."

Cull inevitable

Despite Sinclair's protestations, many of the 1,600 law firms currently undertaking duty solicitor work will have breathed a sigh of relief following the judgment. It had been feared that the government's costcutting plans for legal aid payments to duty solicitors at police stations would have led to the closure of hundreds of law firms across the country. But is this merely a delay in execution?

Kirwan believes that a cull remains inevitable: "I don't agree that it is necessary. But, if the government is convinced that there must be, then it has to be a viable number. [The] 525 firms is far too little. There will be no solicitor representation on behalf of the defendants. It is just too few firms and it will not work.

"I would expect Grayling to increase by at least two or three hundred firms. If he does then that will give a lot of firms a chance of pitching for the business. But it is not just a question of business, it is also a question for the client."

Though successful in part, the 8.75 per cent average fee cuts introduced in March will remain after the judge ruled that even with a better consultation process it was questionable that the decision would have been different.

The MoJ declared the judicial review decision to be a rejection of the challenge to fee cuts and as only a technical ruling on the consultation process. It says it remains committed to reform. An MoJ spokesperson said: "This judicial review was not wholly successful - the claimants failed in their challenge to the fee cut. However, the judgment has raised some technical issues about the consultation process, which we are carefully

considering. We will continue to implement reform of the criminal legal aid system. We must ensure legal aid is sustainable for those who need it, for those who provide legal services as part of it and for the taxpayer, who ultimately pays for it. Even after reform, we would still have a very generous system at around £1.5bn a year."

New consultation

Following the judicial review decision, the ministry has published a further consultation, inviting comments on the undisclosed reports. The consultation will be open for three weeks.

Richard Miller, head of legal aid at the Law Society, said: "This consultation gives solicitors in each procurement area the opportunity to spell out to ministers the reality on the ground of what the Otterburn and KPMG reports reveal. We are disappointed that the consultation is so short, but we encourage all our members to respond in detail."

Syed commented: "The decision that the consultation process was unfair when considering strict legal principles is not surprising, the short time to rectify this failure has left some feeling that the real ght is still to be waged. An adoption of the suggested short period to consult would no doubt be argued to remedy the regarded technical failing. The claimants and others would wish to provide proper evidence of what they say is the reality of the changes."

Matthew Scott, a barrister practising from Pump Court Chambers, told SJ: "Whether this defeat will actually make the slightest difference in the great scheme of things is unclear, but sadly it seems very unlikely. Grayling has re-opened his consultation because the court ordered him to do so, but I would be astonished if his new plans turn out to be di erent from the old ones. I nd it hard to believe that he is entering into the new consultation with an open mind."

Fatal blow

Law Society president, Andrew Caplen, has welcomed the court's decision: "Clearly, it is now for the Lord Chancellor to respond to the High Court ruling. I am acutely aware of the potential devastation facing criminal law solicitors and the reducing availability of quality legal advice to vulnerable members of the public. We have no doubt that the government's proposals will have a direct impact on the viability of solicitors providing these all-important services to their local communities.

"Under my presidency, the Law Society will do all in its power to support criminal legal aid solicitors and to defend the rule of law. I will engage fully with our members to draw further attention to the plight of criminal law practitioners and the threat to the working of the criminal justice system that has been highlighted by [the] ruling."

Though not a fan of the Law Society, Kirwan believes that this is an opportunity for it to really support criminal practitioners. "I was one of those that voted against the last president during the 'vote of displeasure'. However, they have done damn well since we gave them a bloody nose

down at Chancery Lane. They have come up to the bar. I take my hat o to both the previous and current president. But now we need to engage and give Grayling the coup de grâce." SJ

John van der Luit-Drummond is legal reporter for Solicitors Journal

 

 john.vanderluit@solicitorsjournal.co.uk