It was a wonderful moment when finally the truth about the behaviour of the Lord Chancellor and his so called Ministry of ‘Justice’ was revealed in the historic judicial review judgement delivered by Mr Justice Burnett on Friday. There, exposed to the whole world was a scandalous history of double dealing and concealment. The truth exposed and long suspected, was that this Ministry will do almost anything to drive through doctrinaire and narrow policies based upon questionable and bogus statistics and in doing so suppress and distort expert evidence that does not support their bizarre proposals that so threaten access to Justice.
The description in the Judgment of our Ministry of Justice consultation as ‘unfair’ and ‘illegal’ was an extraordinary event bearing in mind the remit of that Ministry namely ‘Justice’. What a shameful moment in our country’s history. What will the world think? This causes huge reputational damage to the UK whose legal system was once the preeminent exemplar of fairness but now the very Ministry presiding over our legal system is severely damaged and compromised.
What went wrong? As we know the Lord Chancellor and his officials refused to allow the profession advance sight of the expert reports (Otterburn and KMPG) failing to allow us all the chance to make representations upon their content. In one of the many correct ‘calls’ he made, Bill Waddington our courageous CLSA Chairman, with pin point precision, asked for advance disclosure of the reports and was rebuffed by Mr Grayling personally by letter. The MOJ then proceeded to be over-selective in taking parts from the Otterburn report and then directing the KMPG team to adopt absurd assumptions, not referred to therein (Duty firms will surrender 50% of their own client base to non duty firms) entirely of their own departmental device and invention. It was thus far from being truly independent research as promised in the consultation.
But it is far more serious than this. Without bringing this action and without the consequential discovery of documentation procedure we would never have known about the PA Consulting report ruthlessly suppressed by the MoJ.
The MoJ commissioned independent expert evidence from PA Consulting on the effect of cutting legal aid fees and then suppressed that evidence when it produced findings which were the opposite of what they wanted to hear as it would have given ammunition to critics of Mr Grayling’s proposals. The PA report overwhelmingly demonstrated that the profession could not survive the proposed cuts to legal aid.
Despite the Lord Chancellor personally having given a commitment to the practitioner groups to follow the recommendation of Otterburn, he then reneged upon this without notice and without giving reasons. The mealy-mouthed response that the Lord Chancellor meant this commitment to ‘include KMPG’ (whom no one at that meeting had heard off at that stage) and not just rely upon Otterburn was not credible (so found the Judge).
Thus did the Lord Chancellor and the MOJ manipulate or suppress the statistics and reports so determined were they to make the ‘expert report evidence’ support of their pre-determined decision already made in favour of the demonstrably unworkable 2 tie system. I am unable to reveal private conversations at meetings that I attended with others opposite the MOJ but suffice it to say the behaviour we encountered was entirely consistent with the conduct revealed by the proceedings with an onslaught consisting of a mixture of entreaties, bluffs and threats. The CLSA, with their fine allies in the LCCSA, stood firm and resisted it all. I am proud of what we achieved and above all happy that the profession after years of ‘taking it’ felt we hit back on their behalf.
So where does that leave us? Firstly and foremost how on earth can any of us trust the Lord Chancellor and the MOJ again? They do not seem to trust each other as Mr Grayling appeared to blame his civil servants as summarised by Burnett J at [§46] in the judgement. The Civil Service suggest Mr Grayling would not have listened to the profession in any event and the Lord Chancellor distances himself from that view. He blames his own civil servants. What an utter shambolic situation. Perhaps this internal confusion accounts for the repeated experience of defeat in judicial reviews by this Lord Chancellor.
The idea now that any legal aid consultation by the Lord Chancellor or MoJ could be taken seriously, as a process conducted with integrity and in the public interest, is blown out of the water surely. How would we know whether similar and malign manipulation behind the scenes was not being undertaken? What credibility would it have?
The evidence revealed in the hearing and elsewhere shows a collapse in the criminal legal aid spending close to where the Government wanted it to be. How low does the spend have to fall before the MoJ can demonstrate to the Treasury that enough has been taken out of the system to the point of collapse for many firms? The decision to reduce duty firms from 1,600 to 525 is on hold as a result of the victory. But the structure of the profession and long term legacy for future young lawyers remains a thorny issue due to the collapse in volume of work. There needs to be a credible independent inquiry in the both civil and criminal legal aid such as a Royal Commission at which the MOJ and the profession can give evidence but where the MoJ are not the ultimate arbiters as to the form of re-structuring.
As for the CLSA and the LCCSA we are ready to contribute to such a process. But make no mistake if there is an irrational MOJ response to this defeat we will stand ready to fight for the profession in whatever manner is appropriate. The nose of the bulldog has been slanted backwards so that he can breathe without letting go. We won’t let go.
Robin is a member of Robin Murray and Co and former vice chair of the Criminal Law Solicitors Association. He was a joint winner of the 2015 Legal Aid Lawyer of the Year Award for fighting the legal aid cuts