They Would not Listen, They Did not Know How

Here we go again. Another legal aid consultation by the Ministry of Justice, in response to the quashing by Burnett J of the flawed decisions based on the last one: not that you’d know from the announcement that the MOJ has suffered the humiliation of having its decision described as so unfair as to be unlawful. It says nothing about the judicial review. There is no trace of contrition, regret, much less of apology for mucking the profession about, wasting time and energy, and for creating a shambles.

The MOJ press office employs no fewer than 28 people, according to its website. How many of them did it take to decide to whitewash the debacle of the Burnett judgment and pretend that it merely ‘raises some technical issues’? But then, they are only their master’s voice.

We know from evidence which Burnett J heard, that the Ministry would have paid no attention even if the reports that are now the subject of consultation had been made available when they should have been. To use the language of the Courts, the MOJ has a ‘propensity’ for not listening to reasoned responses. It was strike action by the Criminal Bar, and the threat of more strikes, that got Grayling’s attention and persuaded him to abandon one small aspect of the destruction they are determined to wreak on the legal system.

With the MOJ, the clue is not in the name. If justice involves listening, weighing things up with an open mind, and even changing your mind, you won’t see it in their dealings with the profession. They might want to think about what Megarry J said in John v Rees [1970] 1 Ch 345:

As everybody who has anything to do with the law well knows, the path of the law is strewn with examples of open and shut cases which, somehow, were not; of unanswerable charges which, in the event, were completely answered; of inexplicable conduct which was fully explained; of fixed and unalterable determinations that, by discussion, suffered a change.

Instead, the Mandarins may have been studying Bleak House. Old Tom Jarndyce was talking about chancery litigation, but today it would be death by consultations:

‘For,’ says he, ‘it’s being ground to bits in a slow mill; it’s being roasted at a slow fire; it’s being stung to death by single bees; it’s being drowned by drops; it’s going mad by grains’.






It Doesn’t Matter What You Say, We’ve Made Our Minds Up

Mr Justice Burnett has quashed Chris Grayling’s decision to reduce from 1600 to 525 the solicitors’ firms who will get legal aid contracts to act as duty solicitors. This was the centrepiece of the MOJ’s restructuring of the supply of legal aid, would have driven hundreds of dedicated and experienced lawyers, on whose work the criminal legal system depends, out of business. The Judge has ruled that the decision to adopt this policy was illegal, because the MOJ’s consultation procedure was flawed by unfairness.

This is because Grayling hid from consultees two key pieces of research that the MOJ had commissioned: ‘expert’ reports about the impact of restructuring the market for criminal legal services.  The MOJ based its plans on the reports. But the research (when eventually disclosed) turned out to be contentious and based on questionable (or just plain wrong) assumptions. Burnett J held that the failure to let the consultees see and comment on this research ‘… was so unfair as to result in illegality’ [§50], and so he quashed the decision.

There’s another intriguing passage in the judgment. The Judge received evidence from a number of solicitors, who described how they would have responded if they had seen the undisclosed material when they should have done. He also had evidence from Dr Gibby, the MOJ’s head of legal aid policy, and a very senior mandarin indeed. Dr Gibby said that the responses by the professionals, had they been known, would have made no difference to the MOJ’s decision. That, you may think, is pretty sweeping, and doesn’t say much for the MOJ’s willingness to deal with reasoned objections to its plans. But here’s the thing: Burnett J comments [§46] that

On instructions, [counsel for the MOJ] confirmed that this represented Dr Gibby’s opinion and was not to be taken as an assertion that, had he considered the representations foreshadowed in the claimants’ evidence, the Lord Chancellor necessarily would have sanctioned the adoption of the same assumptions or that the eventual decision would have been the same

What does this mean? It’s a bit Delphic, but to me it strongly suggests that the Minister is disavowing his own senior civil servant: that may have been what she thought, Grayling is saying, but I did not share that view. He is cutting her loose, and blaming her for any false impression that the solicitors may have formed about his real view of the matter.

So we have a senior civil servant saying that the informed views of those who would bear the brunt of the policy would have been disregarded in any event; and a minister apparently – and publicly – dissociating himself from her; and all in a context of fundamentally flawed decision-making. This wasn’t about some parochial matter like planning permission for a supermarket, but about whether legal services would be available to some of those most in need of them, and whether two thirds of solicitors’ firms would cease to exist: with serious knock-on effects for criminal justice and for law and order more generally.

What an almighty cock-up. This is train-crash government. It is not comforting to know that earlier in her career, Dr Gibby was the Director of the Royal Society for the Prevention of Accidents.