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.