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.

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About Francis FitzGibbon QC

I am a QC and member of Doughty Street Chambers, London (www.doughtystreet.co.uk) & an associate member of Trinity Chambers, Newcastle (www.trinitychambers.co.uk). Chair of the Criminal Bar Association of England & Wales. I practise criminal law. Please do not look for legal advice in this blog as you won't find any. The views expressed here are entirely personal.
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3 Responses to It Doesn’t Matter What You Say, We’ve Made Our Minds Up

  1. But Mr Justice Burnett helps to solve Grayling’s problem. In all the ‘we’ve won’ euphoria’, Para 54 has been missed. Here it is:
    ‘That would be at least four years away and so provide no comfort for solicitors who in the meantime had seen their firms close, had lost their jobs altogether or been forced to look for new work. The decision to let 525 Duty Provider Work contracts will be quashed. There is no need for an additional mandatory order requiring the Lord Chancellor to consult on the Otterburn and KPMG reports because that follows from the terms of this judgment. Mr Waddington recognised when he asked on behalf of his members last September for an opportunity to comment upon the research that it would delay the process for no more than a few weeks. A relatively short reconsultation period would be sufficient, not least because those most concerned to comment on the research have had some time to think about it.’
    If the MoJ wants to continue with Dual contracts a quick reconsultation will surely be what they are examining.

  2. Pingback: Grayling defeated in the High Court: careful now | Partly Political

  3. What gets me is that this wasn’t just some kind of procedural error or oversight that made the consultation process illegal, this was a deliberate act. We have now become a country where our national government can break the law and/or deliberately deceive the electorate, parliament and the press with impunity. If they get caught out they just shrug their shoulders and carry on.

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