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High Court rules Lord Chancellor acted ‘unlawfully’ in legal aid reform consultation

In a stinging blow to the government’s controversial and widely condemned plans to overhaul criminal legal aid, the High Court ruled on Friday (19 September) that the Lord Chancellor Chris Grayling acted ‘unlawfully’ over his failure to disclose the contents of two key reports during the consultation process.

A judgment delivered in the High Court by Mr Justice Burnett said that the decision by the Ministry of Justice to refuse to allow those engaged in the consultation process to comment on the findings of two key reports into plans to introduce new dual criminal legal aid contracts was ‘so unfair’ as to be illegal.

The judgment added: ‘The broad indications given in the consultation paper of the considerations which would determine the outcome did not, in my judgment, enable consultees meaningfully to respond. Something clearly did go wrong’.

The judgment further quashed the Lord Chancellor’s decision to let 525 criminal legal aid duty solicitor contracts and advised a ‘relatively short’ re-consultation period, ‘not least because those most concerned to comment on the research have had some time to think about it’. However, the first phase of reducing criminal legal aid fees by 8.75%, introduced in March, will remain in place.

Blackstone Chambers’ James Eadie QC and Fraser Campbell, and 4 New Square’s Richard O’Brien were instructed by the Treasury Solicitor for the Lord Chancellor.

Kingsley Napley public law partners Adam Chapman and Emily Carter are acting for the claimants, London Criminal Courts Solicitors’ Association (LCCSA) and Criminal Law Solicitors’ Association (CLSA), and instructed barristers Jason Coppel QC and Jo Clement of 11 Kings Bench Walk.

Kingsley’s Chapman said: ‘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.

‘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.’

Law Society President Andrew Caplen, who was newly appointed to the role in July, said: ‘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.’