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Lord Chancellor's consultation on criminal legal aid "so unfair as to result in illegality"

Julia Marlow

Julia Marlow,

London

Elina Eriksson

26 September 2014
The Administrative Court, in a judgment handed down last Friday, has set back Government plans to cut criminal legal aid. In this recent challenge by the Criminal Law Solicitors' Association (CLSA) and the London Criminal Courts Solicitors' Association (LCCSA), the Court found that the Lord Chancellor had acted so unfairly "as to amount to illegality".

On 19 September 2014, the Administrative Court quashed the Lord Chancellor's decision  significantly to reduce the number of duty provider contracts, which are contracts available to solicitors' firms to provide publicly funded criminal advice and representation. The Lord Chancellor's reform to criminal legal aid, announced in February 2014, involved a reduction in the number of duty provider contracts to be offered from 1,600 to 525. It was envisaged that firms would engage in a price-competitive tendering process to obtain such duty provider contracts. The MOJ also announced a reduction of 17.5% in criminal legal aid fees to take effect in 2014 and 2015, which, together with the reduced duty provider contracts, amounted to a cut of some £220 million.

The CLSA and the LCCSA argued as part of their judicial review challenge that the Lord Chancellor's consultation process, which relied upon financial modelling reports by KPMG and Otterburn Legal Consulting, was procedurally unfair in that the Lord Chancellor did not disclose or consult on the reports' content. The Court, in agreement with the claimants, held as follows.

  1. The adequacy of a consultation depends on (a) whether the material was internally or externally generated, (b) the reasons why disclosure of the material was refused, and (c) the impact of the decision under consultation.
  2. As the impact of the Lord Chancellor's decision was likely to be profound, a high degree of fairness was required. Solicitors would have been well-placed to illuminate gaps in the assumptions forming the basis of the accountants' reports.
  3. It was unfair to refuse to allow those engaged in the consultation to comment upon the accountants' reports and the consultation paper was too broad to enable meaningful responses.

On the basis that these failures were "so unfair as to result in illegality", the decision to reduce the work contracts was quashed by the Court. However, the decision to reduce fees was upheld as it was seen to stem from an immediate financial imperative. An MOJ spokesman commented to the press that the CLSA and LCCSA had thus failed in part of their challenge, although the spokesman conceded that the MOJ is carefully considering the technical issues raised by the judgment about the consultation process.

The MOJ was quick to launch a further consultation in relation to criminal legal aid on 24 September 2014, this time specifically on the reports by KPMG and Otterburn Legal Consulting and the assumptions used in their analysis. It has further been reported that the CLSA and LCCSA will seek a Royal Commission into funding for access to justice following the Court's finding. It remains to be seen whether the Government will succeed in settling a criminal legal aid reform during the current mandate.

Julia Marlow

Julia Marlow,

London

Elina Eriksson

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