Updated: 1pm, Thursday
Lord chancellor Chris Grayling is facing a twin assault on his criminal legal aid reforms, after the Law Society and practitioners groups vowed to pursue separate legal challenges.
Meeting at Chancery Lane yesterday, the Law Society's Council agreed to seek judicial review of the legal aid crime duty tender process.
President Andrew Caplen said: ‘In the interests of access to justice, the public and the legal profession, we have decided to seek a judicial review of the legal aid crime duty tender process. In our opinion, the process creates a serious risk of market failure which could have major implications for society as well as the profession.
‘We know that our members have concerns about their livelihoods, but also more widely about the impact the outcome of the process will have on access to justice for the most vulnerable in our society.’
The Society said it has had discussions with the criminal practitioner groups about their plans and these will continue. Chancery Lane will also be offering financial support to the Criminal Law Solicitors’ Association and London Criminal Courts Solicitors’ Association to support their work on their potential reviews.
This lunchtime the CLSA and LCCSA confirmed they would pursue their own JR challenge. Jonathan Black, president of the LCCSA, said: 'We're now in a position where again we have to resort to judicial review. In the current climate, it's the best hope we have of preserving essential access to justice. Over 1,000 contract holders would be set to lose their duty contracts for on-call work in police stations and magistrates courts - the lifeblood of any law firm doing publicly funded criminal work. Hundreds of firms would go under. A disaster not just for the profession but also for people who need fair representation.'
He added: 'If we don't challenge these dangerous plans, our high streets will be cleared of legal aid solicitors and vast, distant legal warehouses will be created, which will frankly dispense tick-box justice. A minister accepted in parliament this week that the government is hell-bent on making hasty cuts without any considered evaluation of the consequences. We have no choice but to try and stop these justice-denying contracts in order to save a key component of the already maimed criminal justice system.'
Black said the practitioners groups were 'very pleased' The Law Society is also issuing additional proceedings, 'though our grounds differ somewhat and should there be any negotiations with the Ministry of Justice, our members would expect the LCCSA and CLSA to be part of those talks', he said.
Solicitors roundly condemned the government’s announcement on 27 November that it would press ahead with two-tier contracts for criminal legal aid and a second fee cut of 8.75% next summer.
The government’s latest, hurried consultation on the plans was started days after the High Court ruled in September that the MoJ acted unlawfully when introducing the reforms, following a challenge led by the practitioner groups.
A MoJ spokesperson said: ‘Under our plans, those accused of a crime would have same access to a legally aided lawyer as they do now. Our reforms are designed to guarantee access to justice, and even after reform we would still have a very generous system. We will robustly defend any challenge.’
The current timeline for the Legal Aid Agency crime duty tender process is as follows:
- 27 November - tender opened
- 15 December - midday: deadline for submitting questions on the tender process
- 29 January 2015 - tender closes
- w/c 12 June 2015 - notification of tender outcomes
- July 2015 - subject to further consideration, second fee cut implemented
- 1 October 2015 - service commencement.
In a separate development, the High Court will on Thursday hear a challenge to the legality of government changes to legal aid for domestic violence victims. The case coincides with the release of figures which show 40% of victims do not have the required forms of evidence to access legal aid.
The challenge centres around new rules introduced in April 2013 which require victims of domestic violence to provide a prescribed form of evidence in order to apply for family law legal aid. Some of the forms of evidence are subject to a 24-month time limit, despite the fact that perpetrators may remain a lifelong threat to their victims.
Emma Scott, director of Rights of Women, said: 'Although legal aid remains in place for some family law cases, still too many women affected by violence are being denied legal advice and representation in family cases because they do not have formal forms of evidence of the violence they have experienced in order to apply for legal aid. And even if they do, the ongoing risks to them do not disappear after two years.
'The changes to the legal aid scheme introduced in April 2013 have had a devastating impact on women’s ability to secure safe and independent futures for themselves and their children. Our ongoing research shows that the domestic violence gateways have created a barrier to family law legal aid and to access to justice for women.'