The Queen on the application of London Criminal Courts Solicitors Association and Criminal Law Solicitors Association v The Lord Chancellor  EWHC 3020 (Admin)
The High Court quashed the decision of the Lord Chancellor on the number of 'Duty Provider Work' contracts available to solicitors, following what it deemed to be an unfair and illegal consultation process, but declined to quash the reduction in rates of remuneration introduced by the Criminal Legal Aid (Remuneration) (Amendment) Regulations 2014.
- The Court reiterated its commitment to ensuring a fair consultation process, even where there is no statutory requirement to consult. Burnett J found that the consultation process did not give consultees a meaningful chance to respond, and was consequently 'so unfair as to result in illegality'.
- Factors such as the impact of the decision being consulted on, the relevance of the material being disclosed, and whether the material was internally or externally generated are all important in determining the fairness of a consultation process.
- For a decision to be quashed there must be a connection between the flawed consultation and the impugned decision.
A consultation paper titled 'Transforming Legal Aid: Next Steps', which was published in September 2013, set out a number of legal aid reforms. It also contained a further consultation on the procurement of criminal legal aid services, on advocacy fee reforms, and on a new model for 'Duty Provider Work' contracts ('DPW contracts'). The Law Society remained engaged throughout this process with detailed input from a small number of its officials.
As part of this consultation process, the Law Society commissioned an independent research paper from Otterburn Legal Consulting to determine the number of contracts to be awarded. The Ministry of Justice ('MoJ') also entered into a contract with KPMG to conduct research into the finances of criminal legal aid firms and to test the viability of the project.
The Government response to this consultation (dated 27 February 2014) announced two important decisions:
- To reduce litigators’ fees in a phased manner – with an initial reduction of 8.75% for cases starting on or after 20 March 2014, and a further reduction next year.
- To introduce a new model on tendering for DPW contracts, with 525 contracts to be awarded in accordance with the specialist advice received from KPMG. It may be noted that the final Otterburn Report did not recommend a precise number of contracts. To reach this number, the KPMG report made a series of underlying assumptions. These reports were only published in February 2014 i.e. after the consultation period had concluded.
These reforms were widely expected to transform the legal aid landscape, with the changes coming in for criticism from the Bar Council and the Law Society, as well as various organizations working on improving access to justice.
The London Criminal Courts Solicitors Association ('LCCSA') and Criminal Law Solicitors Association ('CLSA') brought judicial review proceedings against the Lord Chancellor's decision on the number of DPW contracts to be awarded, and on the decision to reduce rates of remuneration.
Main issues in the proceedings
As noted earlier, the KPMG report made a series of assumptions to reach the precise figure of 525 contracts. These assumptions were controversial as they did not take into account various factors. It was common ground that if these assumptions had been different, a larger number of DPW contracts would have been available. The claimants argued that in formulating the assumptions, those with the best understanding of how criminal legal aid firms work i.e. criminal legal aid solicitors themselves and their representative organisations, should have been given an opportunity to comment upon them. The claimants submitted that it was incumbent on the Lord Chancellor to consult on the content of the reports and its underlying assumptions, and that failure to do so was procedurally unfair and led to an illegal decision.
In addition, the claimants contended that at a November 2013 meeting of the Law Society and the Lord Chancellor (with representatives of the claimants in attendance), there was an understanding that the Lord Chancellor 'will follow recommendation of Otterburn report'. Consequently, there was a procedural legitimate expectation that the Lord Chancellor would at least consult if he were contemplating changing his mind.
The High Court's decision
At the outset, Burnett J noted that while there was no statutory duty to consult in connection with legal aid changes, there was a long-standing practice of doing so.
In addition, he observed that the question of whether a consultation was so unfair as to be unlawful was a question for the court to determine, and that the impact of the decision would be a material factor is deciding what fairness demanded in a particular case. Other material factors would include the relevance of the material not disclosed, and whether the material was internally or externally generated.
In light of the legal principles, the Court suggested that three important facts were critical in determining the question of fairness:
- a criminal legal aid firm would be profoundly affected if it failed to secure a DPW contract;
- the fact that the Government itself did not consider the material set out in the public consultation paper sufficient to make a fully informed decision; and
- the MoJ's engagement with a 'narrow band' of Law Society officials showed at least the value of informed input on the details of the assumptions.
The defendant argued that these discussions with the Law Society officials showed that there had been appropriate consultation. However, the Court noted that these officials were not acting in a representative capacity. Consequently, while the fact that there was some discussion with the officials highlighted that the issues were deemed important by the MoJ, these discussions alone were not sufficient.
Overall, the Court found that in the context of a decision that had the potential to 'profoundly affect the way in which the market in criminal legal aid operates' and 'pose a threat to the continued existence of many practices', the refusal to allow comments on the two reports was unfair. The fact that the consultation paper did not identify the assumptions (or the nature of assumptions) meant that the consultees were not meaningfully able to respond. This was so unfair as to result in illegality.
Dealing with the argument on legitimate expectation, the Court found that remarks made in a meeting governed by Chatham House rules could not form the basis of a legitimate expectation argument. However, the remarks were considered part of the factual background and the Court suggested that this change of position by the Lord Chancellor compounded the general unfairness.
Burnett J quashed the decision of 27 February 2014 which provided for 525 DPW contracts, and indicated that a relatively short re-consultation period would be appropriate.
However, he did not find that the question of contract numbers, even if appropriately consulted, would have led to a different decision on the phased reduction in criminal legal aid fees. In essence, the flaws identified in the consultation did not have a 'sufficient connection' with the decision to reduce fees. Consequently, he declined to quash this decision.
This decision confirms the level of consultation expected from public bodies before taking decisions, and the grounds on which any such consultations may be challenged:
- The Court reiterated its commitment to ensuring a fair consultation process, even where there is no statutory requirement to consult.
- While the court admitted that there may be situations where a flawed consultation process would not be so unfair as to be illegal, the assessment was to be made on a case-by-case basis, with factors such as impact of the decision and the nature of the material not disclosed being vital to this assessment. The standard, it was restated, would be whether something had 'gone clearly and radically wrong'.
- The reluctance to quash the Government's fee reduction decision shows, however, that courts will only quash a decision where it can be demonstrated that there is a sufficient connection or link between the flawed consultation and the impugned decision. Therefore, where it can be shown that even appropriate consultation would not have led to a different decision, decisions may be protected. Practically, however, it will be difficult to sustain this argument, especially where consultation is on-going.