Grayling did not act improperly over reforms, court told

Topics: Criminal justice,Legal aid and access to justice,Government & politics

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  • Chris Grayling

Allegations that a bullying lord chancellor acted improperly in his dealings with the Law Society over criminal legal aid reforms were rebutted by his barrister today.

In the second day of a case brought by the Criminal Law Solicitors’ Association and the London Criminal Courts Solicitors’ Association - and part-funded by the Law Society - James Eadie QC said there was ‘no impropriety’ in the way Chris Grayling had acted.


The two groups challenge the lawfulness of a consultation on the reforms because of the government’s failure to publish and consult on consultants' reports.

Mr Justice Burnett heard yesterday that Grayling (pictured) had become personally involved in the consultation process and misled the Law Society by threatening it with the introduction of price-competitive tendering (PCT). 

The claimants alleged that when the Ministry of Justice reached an agreement with the Society in August 2013 on the introduction of a new dual-contracting regime, it had already decided to abandon PCT. 

But Eadie told the court today that at the August meeting with the Law Society, PCT was still on the table as an option. He said the ‘serious allegations’ made against Grayling had ‘no evidential basis’ and caused a ‘certain amount of umbrage’ among ministry officials.

Burnett invited Jason Coppel QC, for the claimants, to withdraw the ‘unattractive submission’ that Grayling had personally lied in his dealings with the Law Society, which he said was without evidence and ‘of no relevance’ to the decision he had to make.

Coppel replied that he had not told the court that Grayling had lied.

Putting the lord chancellor’s case in response to the judicial review application, Eadie said there had been ‘prolonged and intensive engagement’ with the profession and its representative bodies, including the Law Society and the two claimant groups.

The skeleton argument said the ‘lengthy, multi-stage’ consultation process that began in summer 2012 also included two consultation papers and a series of public meetings attended by thousands of practitioners.

Eadie said under the public law principles on the duty to consult it is a matter for the executive to decide how it informs itself on policy decisions – who it consults and on what information.

He said the claimants and profession were well aware, during the consultation process and before the publication of the reports, of the factors and criteria that would be considered by the lord chancellor in determining the number of contracts to be made available.

The four criteria, he said - sufficient supply; sufficient case volume; market agility; and sustainable procurement - were identified in both consultation papers, and comments invited upon them.

The issues considered by the two undisclosed documents - the Otterburn report on the financial state of firms and the KPMG contract modelling report - were precisely those which the claimants knew the lord chancellor was considering. 

Re-opening the consultation, said Eadie, would not have made any difference to the decision ultimately reached, or the basis on which it was reached.

‘In reality, the claimant’s case is that a re-opening of consultation by reference to the reports would have given them the opportunity to reiterate arguments that they had already had the opportunity to make,’ said Eadie. 

‘Neither the Otterburn nor the KPMG report had the slightest impact on the lord chancellor’s stated objective of consolidation,’ said Eadie. ‘The lord chancellor ultimately made a decision – which is not challenged on its merits – to adopt measures to encourage market consolidation.'

At the end of the hearing Burnett said he hoped to have judgment ready ‘as soon as possible’ and ‘all being well’ by the end of the month.

Readers' comments (4)

  • Here is Gazette article 5.9.13 when Mr Grayling 'abandoned' PCT. Mr Fluck of The Law Society welcomes PCT being 'scrapped'.

    And here is Gazette article of 7.10.13 where Mr Hudson of The Law Society warns that, in fact, PCT might be ressurected if solicitors do not adopt the revised scheme.

    I suggest people read both articles, the surrounding information, and make up your own minds. If you believe Mr Grayling has acted honourably throughout, please let me know. You might call it a 'consultation', I suppose.

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  • This gentlemen is suppose to be the "keeper of the kings conscience" but has also failed to even look after his own. How can we look up to and respect a person such as this. The Chancellor was at first only a chief notary or scribe under the emperor, for he is the chief administrator of justice, next to the sovereign who anciently heard equitable causes himself. All other justices in this kingdom are tried to the strict "rule of law", in their judgements, but the Chancellor have power to moderate the written law governing his judgement by the law of nature and conscience, having the kings power in these matters he have been called the 'keeper of the kings conscience". The Chancellor became a judge to determine petitions to the king and so lets hope to god that this gentlemen mends his ways and repents his sins for all the wrongs that he has done to the people who are suffering because of him. The laws are not there to be abused and to insult the people 'Wake Up' mr Grayling

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  • "[Mr Justice] Burnett invited Jason Coppel QC, for the claimants, to withdraw the ‘unattractive submission’ that Grayling had personally lied in his dealings with the Law Society, which he said was without evidence and ‘of no relevance’ to the decision he had to make. Coppel replied that he had not told the court that Grayling had lied."

    So was the judge sleeping or is Mr Coppel QC prevaricating?

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  • What of the irrationality of basing policy decisions on false data/assumptions.
    The Law Society and MoJ assume duty solicitors are the highest paid employees in criminal defence firms. Yet in every firm I've worked for, crown court clerks and reps were paid much more than the employed duty solicitors.
    We can't know what structure the 2015 contract would take if this false assumption was corrected, but it's a pretty safe bet to guess it would be different.

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