Last week the LCCSA and the CLSA gave the Lord Chancellor and his Ministry a bloody nose using over the “consultation” on legal aid reform, using the process the Chancellor was himself keen to limit, judicial review. The irony of that must be causing some discomfort in his offices at Petty France.
We all suspected at the outset of the consultation process it stood as little more than a fig leaf of respectability in front of Chris Grayling’s plans, and that as with his consultation on judicial review itself the responses were unlikely to have much effect on the end decision. As the process rumbled on the “concessions” apparently given as a result of the concerns raised seem to have been little more than bargaining tools. Elements of the plan that the Ministry had no real intention of ever bringing forward, but that could be reluctantly discarded to show willingness to engage. The LCCSA and CLSA and much of the profession saw through this, the Law Society it seems not so much.
The victory by the LCCSA and CLSA represents an important step for the profession and demonstrates what can be achieved when those with the appropriate commitment and passion challenge something that is patently wrong.
Despite the rather churlish tweet from the Ministry Press Office that the judgment showed up a “technical issue” in the process the Ministry were beaten on the point that the consultation was unfair. The findings of the court were clear, “The broad indications given in the consultation paper of the considerations which would determine the outcome did not, in my judgment, enable consultees meaningfully to respond. Something clearly did go wrong. The failure was so unfair as to result in illegality.”
We must bear in mind that the phrase used “unfair as to result in illegality” is the test that the Judge had to apply following the clearly set out precedents. This is important because it does not reflect the courts view on the proposal itself, simply the method it was reached. What it means is that the Ministry have to be able to demonstrate that their processes, and that the consultation they have based their decisions on are fair and give all interested parties an opportunity to comment on them in an informed way with all the relevant information to hand.
This is what the Ministry have done yesterday, launching a further consultation limited to the Otterburn and KPMG research. In this way they have corrected the unfairness that led to the illegality, and ultimately quashed the decision.
It is now up to us again. We cannot simply sit by and hope someone else will let the Ministry know what we think. It is our profession and our cause that we are fighting for. We must all respond to that consultation and show the Ministry why a limit to the number of duty contracts is wrong.
Responses need to come from the management of ours firms, they hold the figures and know the knife-edge we sit on on a daily basis; from the individual duty solicitors who spend their days and nights doing the job with passion and conviction; from the representative groups of the profession and from the Bar.
A feeling that it will make no difference, that this is simply another fig-leaf and that the Lord Chancellor is simply paying lip-service to courts finding is understandable. That may well be the case but where will the next challenge come if we don’t at least take up the opportunity that the LCCSA and the CLSA have fought for?
Once again we need to show the Lord Chancellor he has this wrong, to show him that we care enough about what we do that we will fight for it with dignity, with intelligence and with a belief in ourselves and for those that we represent. We have three weeks to respond to the consultation let us all make them count.
The consultation documentation can be found here.