Criminal solicitor groups have taken the first step towards a legal challenge to the government’s decision to press ahead with cuts to criminal legal aid.
Accusing the Ministry of Justice of carrying out an ‘unlawful’ consultation, the London Criminal Courts Solicitors Association (LCCSA) and the Criminal Law Solicitors Association (CLSA) have sent a letter of claim in accordance with the pre-action protocol for judicial review to the ministry.
The move follows advice from barrister Jason Coppel QC at London’s 11KBW.
The two groups claim the second consultation on proposed criminal legal aid cuts and reforms – Transforming Legal Aid: Next Steps – was so unfair, by virtue of the non-disclosure of a report by accountants KPMG on the feasibility of the plans, that it was ‘unlawful’.
Consultees, they say, did not have the opportunity to challenge the assumptions made in the report.
They argue that the ministry acted unlawfully by failing to give adequate reasons for the rejection of a key finding in the report prepared by consultation Andrew Otterburn on the impact of the changes – that the criminal defence provider market needed time to consolidate before any fee cuts were implemented.
The groups also claim the ministry unlawfully failed to comply with the public sector equality duty with regard to the impact the changes would have on solicitors from a black and minority ethnic background.
They ask the ministry, which has 14 days to respond, to withdraw the decisions announced in response to the consultation in February.
An MoJ spokesman said the ministry will 'vigorously defend' its position.
An online fighting fund set up on the LCCSA’s website, to gather support to reduce the financial risk of the action to their officers who will be personally liable for costs should they lose, has so far raised over £50,000.
LCCSA president Nicola Hill said: ‘We’re delighted to have raised a huge amount of money in a short space of time. The cheques and online donations have been flooding in – not just from solicitors but, interestingly, from barristers too.’
Hill said ‘a lot more’ money is needed to fund the action, which she said is ‘pivotal to holding the justice secretary to account over his attack on publicly funded defence work, the erosion of state accountability and the casual chipping away of the rule of law’.
In protest action by criminal solicitors, supported by 40 firms in London alone, practitioners have declined new Crown court cases since Monday.
Hill said: ‘Many more firms nationally have also adopted this action. Clearly, it’s a sad state of affairs when reasoned argument, followed by days of action and protests on the streets, draws a blank.
‘Lawyers, who stand by the principle of a fair defence for all, irrespective of means, are now feeling driven to take action which will hinder the workings of some of the most important courts in the country. But Mr Grayling’s wilful intransigence and disregard for the rule of law has brought solicitors to this point.’
Meanwhile, at 7.30 this evening, the Criminal Bar Association will announce the result of a ballot of its 6,000 members on whether to continue direct action or keep to the deal struck with the ministry postponing 6% cuts.
The vote, which closes at six o’clock, is being overseen by a retired judge. Amid a tide of blogs and commentaries written on websites by barristers on both sides of the debate, the CBA has vowed to be bound the outcome of the vote.