The High Court did not correctly interpret all the facts regarding the lord chancellor’s criminal legal aid reforms, the Law Society argued in the Court of Appeal today.
Lord Dyson, master of the rolls, Lord Justice Elias and Lord Justice Sales heard arguments from the Society and practitioner groups the Criminal Law Solicitors’ Association and London Criminal Courts Solicitors’ Association against Chris Grayling’s decision to press ahead with two-tier contracts for criminal legal aid.
Last month the High Court dismissed their challenges. However the Court of Appeal granted them permission to appeal.
Representing the Society, Dinah Rose QC of Blackstone Chambers said this morning that the economic analysis required in this case ‘was not complex or technical, and not for the court to shy away from’.
Key arguments include:
- A KPMG financial modelling report said firms were viable if they operated at a ‘break even’ level, but there was no margin for error.
- ‘Quite unlikely’ the Public Defender Service – 6 duty solicitors and 2 police station representatives for England – could pick up the slack if the tender fails. No other contingency plan has ever been put forward.
- Ministry of Justice did not undertake any investigation of costs, such as the number of staff members firms would need to hire to be viable, but this did not stop the ministry from seeking to model an average.
- Following a meeting in March 2014 between the Society and the MoJ, the Society’s then chief executive Des Hudson wrote to the Legal Aid Agency in May highlighting concerns but no answer was ever received.
- No money was available from an interim payments scheme to fund firms’ transition costs because it had all gone to mitigate the effect of a second 8.75% fee cut before new contracts are introduced.
11 KBW’s Jonathan Swift QC, for the practitioner groups, argued this afternoon that the lord chancellor’s response to a Transforming Legal Aid consultation ‘did not evidence proper engagement with the consultation process’.
Swift said: ’The overall decision that the number of contracts let should be 527 is not a decision that withstands sensible scrutiny… In these circumstances, it is not a decision that can be regarded as a lawful option that [Grayling] can pursue.’
The hearing resumes tomorrow.