High Court dismisses legal aid judicial review

The High Court has dismissed the Criminal Law Solicitors' Association (CLSA) and the London Criminal Courts Solicitors Association (LCCSA) on their judicial review of the government's controversial reforms of the legal aid system and proposed two-tier contract.

Lord Justice Laws and Mr Justice Cranston heard legal challenges by the CLSA and the LCCSA, along with a related challenge by the Law Society in January. The groups argued that the government's reforms would undermine the criminal justice system. However, Lord Justice Laws rejected both challenges and refused leave to appeal.

The practitioner associations and the Law Society have already resolved to continue the fight against the government reforms by confirming they will appeal the judgement.

Tenders for the new contract system for on-call solicitor work in England and Wales were suspended before Christmas 2014, pending the outcome of the judicial review. The contracts are part of the government's plans to impose a minimum of 17.5 per cent worth of cuts on legal aid representation in police stations and magistrates' courts.

However, the suspension of tender process has been extended by the High Court until next Friday because of the appeal.

'Dark days'

Following the court's decision, the president of the LCCSA, Jon Black said: "Obviously this ruling is a terrible blow. What's really worrying about it is that it now offers the ideologically driven desire to cut publicly funded criminal legal aid a veneer of respectability. All of us in the profession and well beyond legal circles know these cuts and on call contracts are dangerously risky for maintaining a fair defence for anyone and everyone accused of a crime. Standards of publicly funded legal advice will plummet."

Black commented that legal advice would become "at best tick box justice" that will be dispensed by "'pile 'em high' style legal warehouses".

"At worst 'legal deserts' will appear in parts of the country where there simply aren't any properly qualified solicitors left to do emergency work in magistrates' courts and police stations," he added. "It's no exaggeration to say unrepresented defendants will become increasingly common. Costly court delays and overuse of judges' time will follow."

Black also warned that a lack of representation and falling standards could spell a return to the "dark days of the 1970s and miscarriages of justice".

"Put simply, trust [that] our criminal justice system will be irreparably damaged," he concluded.

'Temporary setback'

Black was joined in comment by Bill Waddington, chair of the LCCSA, who admitted he was disappointed at the "temporary setback in the fight to preserve access to justice", but that the association was not downhearted by the court's judgment.

"Our battle will continue and we have every confidence in future success. Our legal team have said there are strong grounds for an appeal and both associations and the Law Society will be applying for leave to do so without delay," he said.

"In the meantime the Ministry of Justice would be wise to pause rather than proceed with their 'scorched earth' approach to our criminal justice system. At this stage in the political cycle it seems as if they are following the advice of a defective sat nav, leading them off a precipice despite the evidence of their own eyes, experts and thousands of others."

'Elective dictatorship'

Meanwhile, Robin Murray, vice-chair of the CLSA, said that the Lord Chancellor must adjust to "falling volume and expenditure in legal aid" and honour his promises.

"First, he promised not to introduce cuts in advance of the two tier proposals," said Murray. "Second, he promised to take into account Lord Leveson's recent review into the criminal justice system. Leveson's review clearly sets out the need for properly funded legal aid lawyers in the local community to facilitate the efficient operation of the whole criminal justice system. Chris Grayling's programme of cuts and his proceeding with the two tier proposals are the very antithesis of all this."

He continued: "Chris Grayling must engage in immediate discussions over the next few weeks rather than attempting to circumvent democracy and acting as an 'elective dictatorship' - to use a former Lord Chancellor, Lord Hailsham's phrase - by rushing through these universally opposed proposals in the dying weeks of this Parliament. Failing a miraculous conversion to common sense we will continue the fight for justice by all means at our disposal."

Murray added that confirmation from the Labour Party that it would not press ahead with the two tier scheme and would hold further cuts pending a review was "very welcome" news.

Labour's shadow justice minister, Andy Slaughter MP, commented: "With their cuts to legal aid, curtailing of judicial review and plans to water down protection for people's basic rights, our justice system is fast becoming the preserve of the rich under David Cameron's government. Time and again, they've been warned by experts, practitioners and even their own commissioned research that their plans risk disaster, with more miscarriages of justice and people left with poor quality legal representation.

"This sorry mess has dragged on for too long, and only Labour has committed to put the government's shoddy two tier contract out of its misery. Instead, we'll sit down with all those affected to deliver a workable solution that has access to justice at its heart."

Law Society president Andrew Caplen said he was "extremely disappointed" in the decision and was concerned at the government's proposals and the potential effect they may have on access to justice.

"If the government's plans proceed, large areas of the country could be left without legal representation, which is why we are applying for permission to appeal the decision. We will continue to campaign for an effective, publicly-funded defence system to prevent the risk of a sharp increase in miscarriages of justice."

'Fair system'

The MoJ have argued that, at around £2bn a year, the country had one of the most expensive legal aid systems in the world before reform began, and that the tender system is designed to ensure nothing would change for anyone accused of a crime as they would still have the same access to a legal aid funded lawyer as they do now.

A spokesperson for the ministry said: "Given the financial crisis inherited by this government, we have no choice but to find savings in everything we do. This must include legal aid, which was one of the most expensive systems in the world. Our reforms are designed to ensure the system is fair for those who need it, the lawyers who provide it, as well as the taxpayers who ultimately pay for it. Anyone suspected of a crime will still have access to a legal aid lawyer of their choosing, just as they do now. We welcome this judgment."

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