Embarrassment for Chris Grayling as solicitors taste victory in challenge to his reforms

The London Criminal Courts Solicitors’ Association (LCCSA) and the Criminal Law Solicitors’ Association (CLSA) have won their judicial review challenge of government reform to the criminal legal aid system after the High Court ruled that the Lord Chancellor had acted ‘unlawfully’.

The LCCSA and the CLSA told the court that the ‘unfair’ consultation and decisions made by the justice secretary and Lord Chancellor, Chris Grayling, would cause ‘serious harm’ to the criminal legal aid system and the criminal justice system. They accused Grayling of coordinating a ‘caricature of fairness’ in the Ministry of Justice (MoJ) review of legal aid, which they claimed was unlawful.

Suppressed evidence

During the two day hearing, Jason Coppel QC, appearing for the claimants, told the court that evidence contrary to the MoJ’s aims was suppressed and that the Law Society was ‘manipulated’ into agreeing to the changes.

“The Lord Chancellor personally misled [criminal solicitors] about the matter of the independent research which had been commissioned to assist him to make decisions. He personally refused to disclose that research, it would seem, for no other reason than that it might provide ammunition to critics of his proposals,” said Coppel.

The claimants argued that the MoJ had unfairly suppressed two economic reports until the end of the consultation, depriving consultees of the chance to comment on the reforms.

The first report, from Otterburn Consulting, indicated the criminal defence provider market needed time to consolidate before bringing in changes. The LCCSA and the CLSA argued that the government ignored the findings of this report, despite giving assurances that it would adopt them. The second report, from KPMG, raised questions over the feasibility of the arrangements, but these were also allegedly ignored by the MoJ.

Illegal reform

On reaching his decision to uphold the judicial review, Mr Justice Burnett said that the MoJ’s failure to disclose the findings of these two key reports was ‘so unfair as to result in illegality’. The judge also said that the profession had a ‘relatively short’ time to reconsult on the Lord Chancellor’s decision to limit the number of duty provider contracts to 525. The full High Court judgment can be viewed here.

Adam Chapman, head of public law at Kingsley Napley, who led the judicial review challenge for the LCCSA and the CLSA, commented on the judgment: “We are delighted with today’s result. This is a significant judgment given the impact that the proposed reforms would have on solicitors firms – and, even more importantly, on access to justice.

“The judge found that the Ministry of Justice did not decide their reforms on the basis of the best possible information available. They chose not to consult on critical issues with those best placed to help them, criminal legal aid solicitors and the LCCSA and CLSA. In essence that is the reason why the judicial review challenge succeeded and why the Lord Chancellor must now conduct a proper consultation before his criminal legal aid ‘reform’ programme can proceed.”

Chapman concluded: “In doing so he will have a legal duty ‘conscientiously’ to take into account the responses received. The LCCSA and CLSA will take an active part in that consultation and will be alert, with our help, to ensure that it is conducted fairly and lawfully.”

Welcome judgment

The CLSA chair Bill Waddington, said: “The head of our world-renowned justice system must act fairly. Instead, he has attempted to enact a plan that is manifestly unfair. Limiting access to justice and shredding the treasured principle of equality before the law.”

Meanwhile, Nicola Hill, the LCCSA president, commented: “This is a great day for justice. It shows that no one, not even the justice secretary and Lord Chancellor, Mr Grayling, is above the rule of law. It proves what we’ve said all the way along. These so-called ‘reforms’ were sold in the name of austerity. They’re being railroaded through by a justice secretary determined to push through an ideology.”

Hill added: “We’re looking forward now, not back. Changes are needed in our court system and the provision of legal aid. But instead of ignoring those of us who work within the system, we suggest grown-up, respectful discussions to maintain a justice system we can all be proud of.”

Law Society president, Andrew Caplen, welcomed the decision and commented: “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 today’s ruling.”

Technical issues

However, a statement released from the MoJ’s Twitter account said: “Judicial review not wholly successful. Challenge to fee cut failed. Judgment raises some technical issues on consultation process which we’re considering.

“We will continue reform of criminal legal aid. We must ensure legal aid is sustainable for those who need it, for providers and for taxpayer.

“Even after reform we would still have a very generous system at around £1.5bn a year.”

This article was first published in the Solicitors Journal on 19 September 2014 and is reproduced with kind permission.