The Court of Appeal today gave the go-ahead for the government's controversial legal aid reforms by dismissing an appeal by the Law Society and practitioner groups.
It refused to extend an injunction suspending the tender process until Monday while the Law Society seeks to take its case to the Supreme Court. The injunction expires today.
The Ministry of Justice confirmed it will continue with the tender for new criminal legal aid contracts from Friday. Martin Chamberlain QC, for the lord chancellor, Chris Grayling, told the court this morning that the deadline for submitting tender applications would be 5 May.
The judgment concluded that the lord chancellor was rationally entitled to assess that the 'admittedly broad brush approach' he adopted at the end of March 2014 in relation to costs of bidding for duty provider contracts was a reasonable one.
On the process of consulting with service providers following a High Court challenge last year, the appeal court said ‘it was not incumbent on [the lord chancellor] to investigate the current underlying facts in any greater detail than he did’.
The Society is seeking to lodge an application with the Supreme Court for permission to appeal the Court of Appeal's decision, and get the application heard on Monday.
Society president Andrew Caplen said: ‘The Court of Appeal decision is a devastating blow. We remain concerned that vulnerable people may not be able to obtain legal representation if they are accused of wrongdoing.
‘This is why we challenged government plans to reduce criminal legal aid contracts as they could affect anyone accused of a crime and the solicitors who provide high-quality legal help, including 24-hour coverage for police stations.
‘Without proper legal representation there may be miscarriages of justice. Criminal legal aid solicitors are critical for ensuring that anyone accused of a crime has a fair trial.’
The Society believes that proposed cuts in the number of contracts for solicitor firms covering criminal legal aid is unsustainable and could leave some parts of the country without solicitors to provide essential services.
After 20 years without any increases in legal aid fees the government introduced cuts of 8.75% in March last year. A further 8.75% cut in the fees paid is planned for solicitors working in police stations and magistrates’ courts.
The Society awaits the outcome of the government’s promised review of the impact of last March’s cuts and will robustly oppose a further 8.75% cut.
Caplen said: ‘We are now considering our position and we will be looking to have early discussions with the new government on how to ensure access to justice for the most vulnerable in society.’
Jonathan Black, president of the LCCSA, said the group was ‘gutted’ by this morning’s decision.
He said: ‘While the appeal court has found the devastating carve-up of solicitor representation is technically legal, we and many others believe it’s immoral. We’ll do everything we can to continue the fight.’
Robin Murray, vice-chair of the CLSA, said it was ‘undemocratic and unreasonable’ to expect firms to prepare for a ‘highly complex’ bidding process for a scheme that might not happen in light of Labour’s pledge.
Murray said: ‘We believe this makes a strong case for civil servants to intervene under the “purdah” convention and inform the lord chancellor that this issue must wait until the outcome of the general election.’
The Court of Appeal’s decision, handed down by Lord Dyson (pictured), along with Lord Justice Elias and Lord Justice Sales, comes five days before election ‘purdah’ begins. Between the dissolution of parliament and the election, The Cabinet Manual states that it is customary for ministers ‘to observe discretion initiating any action of a continuing or long-term character’.
The Labour party said it would abandon the contracts if elected.
Publicly funded criminal legal aid work is currently carried out under contract with the Legal Aid Agency.
On 27 November 2014 the government commenced a tender process for 527 duty provider work contracts, under which successful bidders would be contracted to provide a share of advice and assistance in police stations in a particular area.
No limit was set on the number of own-client work contracts, and some 1,808 such contracts were awarded in June 2014, which are due to begin later this year.