Chris Grayling: Not Above the Law

In two recent damning High Court judgments, Chris Grayling and the Ministry of Justice have been defeated in relation to two decisions made on legal aid reforms.

  1. Criminal Legal Aid: Fee Cuts & Duty Solicitor Contracts.

Earlier this year the government consulted on the changes to criminal legal aid. Following the consultation, the government introduced a 17.5% fee cut as well as a reduction in the number of duty solicitor contracts available from 1600 to 525.

A judicial review of this decision was brought by the London Criminal Courts Solicitors’ Association (LCCSA) and the Criminal Law Solicitors’ Association (CLSA) who told Mr Justice Burnett that the decisions made by Chris Grayling, the Justice Secretary and Lord Chancellor, would cause ‘serious harm’ to the criminal legal aid system and the criminal justice system.

The argument against the reduction of duty solicitor contracts was made on the basis that Chris Grayling had hid from consultees two key pieces of research that the MoJ had commissioned and relied upon in their decision making. These were ‘expert’ reports, from KPMG and Otterburn Legal Consulting LLP, about the impact of restructuring the market for criminal legal services. When these reports were eventually disclosed they turned out to be contentious and based on questionable, or just plain wrong, assumptions.

Further, it was argued that the decision to impose the fee cuts should be quashed on the ground that the decision was inextricably linked to the decision regarding the reduction in duty solicitor contracts.

On Friday 19 September 2014 the High Court handed down judgment. The court held that:

  1. The decision to reduce the number of solicitors firms who will be given contracts to act as duty solicitors from 1600 to 525 was unlawful; the decision was ‘so unfair as to result in illegality’ in light of flaws in consultation process conducted by the Ministry of Justice. The court found that it was unfair not to allow those engaged in the consultation process to comment on the two reports in question.
  1. The decision on relation to the fee cuts was not so closely related to make it unfair or illegal. The decision of fee cuts will therefore stand.

In addition, a very interest development occurred during the hearing. Dr Gibby, the MOJ’s head of legal aid policy, indicated that the decision would have been taken in the same way, regardless of whether or not the responses of the consultees would have differed had the documents been disclosed. Although Chris Grayling did not endorse the opinion of his legal advisor when it was later challenged, this does little to reassure the public that decisions on matters of such importance are being made in this way.

Bill Waddington, who chairs the CLSA, said ‘We welcome the High Court’s ruling today which is a damning indictment of Mr Grayling. The head of our world-renowned justice system must act fairly. Instead, he has attempted to enact a plan that is manifestly unfair. At a time when constitutional change is in the air, the right of citizens to defend themselves against state-funded prosecutions is not something that should be manipulated in a political way, but investigated impartially to [decide on] appropriate savings and reforms that are sustainable and in the public interest.’

Bill Waddington writes further on this in the Guardian, ‘The proposed legal aid cuts are a threat to Britain’s entire justice system’.

A final interesting point to note from the judgement relates to the ‘discrete argument’ made that the Lord Chancellor promised ‘to follow the recommendations’ of Otterburn, but failed to do so. It was argued that the promise gave rise to a procedural legitimate expectation at least that he should consult if he were contemplating changing his mind. This promise was made during a meeting between the Lord Chancellor and representatives of the CLSA, the LCCSA, and chairs of the Criminal Law and Access to Justice Committees of the Law Society. The meeting was subject to Chatham House Rules which meant that what was said could be made public, but not who said it.

During submissions, Mr Eadie appearing for Chris Grayling mused that an observation made in a meeting subject to Chatham House rules was a weak foundation for a legitimate expectation claim, given the need for a clear and unequivocal representation upon which the claimants were entitled to rely. He asked ‘How can one rely upon an unattributable observation?’

This was accepted by Mr Justice Burnett who held on this point, at para 51, ‘I have the greatest difficulty in accepting that an observation made under Chatham House rules could be relied upon as the basis of a legitimate expectation argument.’

However, he went on, at para 52, ‘That said, I do not accept Mr Eadie’s submission that the Lord Chancellor’s observations made at the meeting are entirely irrelevant… Having heard the Lord Chancellor say that he would follow the recommendations of Otterburn and then to discover that on this important aspect, Otterburn was superseded by KPMG, the claimants and their members would reasonably have felt that the general unfairness to which I have referred had been compounded.’

In reaction to the judgement, only days after it was handed down, the MoJ launched a new consultation, Transforming Legal Aid: crime duty contracts, which closes on 15 October.

Richard Miller, Law Society head of legal aid, 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.’

Nicola Hill, president of the London Criminal Courts Solicitors’ Association said: ‘It seems a little odd and surprising that within this new mini-consultation, there’s not a whiff or a word of last week’s shaming judicial review. The turnaround on this re-consultation is tight by any stretch.’ More importantly she went on, ‘We don’t want to be too cynical but we really hope it’s not a tokenistic, paper exercise. Rather a chance for a genuine rethink where the future of high standard legal representation comes before ideology.’

  1. Legal Aid: Residence Test

First, in relation to the government’s proposals to introduce a residence test. The residence test for civil legal aid proposed that, with some exceptions, 12 months continuous residence in the UK would be required before someone could be eligible for legal aid. The residence test, as planned, was due to be introduced on 4 August 2014.

A judicial review was brought by the Public Law Partnership (PLP) challenging the lawfulness of the residence test which was heard by the High Court.

On Tuesday 15 July 2014 the High Court handed down judgment. The court held that the residence test was:

  1. ‘Ultra vires’, i.e. the Government did not have the power under the Legal Aid, Sentencing and Punishment of Offenders Act 2012 to amend it and introduce this test via secondary legislation.
  1. Deemed to be discriminatory towards those who may be affected by it (e.g. foreign nationals who did not meet the residence requirement).

The Ministry of Justice intends to appeal, although the residence test was not introduced as planned on 4 August 2014.

01 October 2014

Dale Timson

LLB (Honours) Student & Aspiring Barrister


One thought on “Chris Grayling: Not Above the Law

  1. It’s a really good article about some very complex legal issues. The big problem is that despite the sophisticated arguments being put forward against Chris Grayling, the fundamental problem is much more basic. It’s down to simple economics. Legal aid rates for solicitors have been cut again, again and again. The public has no sympathy. Most of them sadly see solicitors as fat cats – they don’t appreciate that there is a world of difference between the huge hourly rates charged by city commercial lawyers and the embarrassingly low rates paid to, say, criminal legal aid practitioners. Despite criticising the government, it’s clear that the Labour Party have no intention whatsoever of reversing any of those rate cuts – and the one thing you can guarantee is that lawyers are seen as an easy target for public spending cuts. Legal aid rates are going to get worse – and eventually, I can see no option but that the entire system will simply collapse when rates become totally and utterly uneconomic. That’s the elephant in the room.

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