Lord chancellor Chris Grayling may not be able to forge ahead with his controversial legal aid reforms even if he emerges victorious from a challenge heard in the Court of Appeal last week, the Gazette understands.
The Law Society, Criminal Law Solicitors’ Association and London Criminal Courts Solicitors’ Association are appealing against the High Court's decision to clear the introduction of Grayling’s two-tier contracts for criminal legal aid.
Lord Dyson, master of the rolls, said the Court of Appeal would try to deliver judgment ‘this term’ (which ends 1 April). An injunction suspending the tender process for duty contracts has been extended until judgment is handed down.
However, even if the court backs the government, the reforms are likely to run into general election ‘purdah’, which begins on 30 March. 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 has said that if elected it would abandon the contracts.
During last week's hearing, Martin Chamberlain QC, for the lord chancellor, admitted that purdah would 'in principle... create constitutional problems'. Restarting the tendering process, while not impossible, would give rise to ‘considerable difficulties’ if judgment was given during purdah.
Should judgment be given in favour of the Society and practitioner groups, Chamberlain told the court that the 'scope of the decision that would have to follow would be broader and encompass really difficult decisions of one sort or another’.
Richard Miller, the Law Society’s head of legal aid, told the Gazette: ‘In the event of the tender reopening, it will fall to the new government to decide whether to proceed to award contracts on the basis of the tender.’
Miller said it was highly unlikely the government would be able to remedy any defects in the tender process before the election.
Law Society president Andrew Caplen said 'We believe that government-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.'