A High Court challenge to the government's controversial legal aid reforms opened with a personal attack on the lord chancellor today.
Chris Grayling (pictured) was accused of personal involvement in suppressing evidence against the cuts and creating much of the resulting 'unfairness' himself.
In an extraordinary criticism of a Cabinet minister, Jason Coppel QC for the claimants told the High Court that the challenge was not merely against the office of the lord chancellor but the present incumbent.
Coppel said it was 'particularly striking’ that Grayling had become ‘personally involved’ in the process and had created much of the ‘unfairness’ himself. He said the Ministry of Justice's consultation on the reforms amounted to a ‘caricature of fairness’, and an ‘exercise in suppressing information’ and ‘empty assurances’.
He accused Grayling of employing a strategy of ‘divide and rule’ and ‘bluff and bullying’. This included manipulating the Law Society by threatening to introduce price-competitive tendering, when in fact the ministry had already decided to abandon that proposal.
The judicial review by the Criminal Law Solicitors’ Association and the London Criminal Courts Solicitors’ Association challenges the reforms set out in the ministry's February 2014 consultation. This proposed two 8.75% fee cuts and a two-tier contracting model for firms providing criminal legal aid services: one for own-client work, and a second for police station duty work available only to a limited number of firms.
The groups say the process used adopted by the lord chancellor before taking the decision to proceed with the reforms ‘fell short of even the a normal standard of procedural fairness’.
They argue that he failed to disclose two reports on the financial state of criminal firms and the impact of the reforms – one by consultant Andrew Otterburn and a second by accountants KPMG – before the end of the consultation. The failure, they say, deprived consultees of the opportunity to make ‘pertinent comments’.
While the JR challenge is not on the merits of the reforms themselves, the CLSA and LCCSA argue that these will cause ‘very serious harm’ to the criminal justice system.
The reforms are designed to reduce the number of criminal legal aid firms – from around 1,600 to 525.
The practitioner groups argue they will put many firms out of business, resulting in ‘advice deserts’ in parts of the country.
The Law Society council has agreed to support the challenge with £45,000, on condition that the claimants attempt to mediate with the ministry. In the event, the ministry declined mediation. A spokesman for the Law Society said the Society would not be commenting until judgment had been given.
Jason Coppel QC and Joanne Clement of 11 KBW, instructed by Adam Chapman and Emily Carter at Kingsley Napley, represent the claimants.
James Eadie QC and Fraser Campbell of Blackstone Chambers and Richard O’Brien of 4 New Square, instructed by the Treasury solicitor, represent the lord chancellor.
The hearing is listed for two days.