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Lords and Commons battle it out over JR reforms
It is unusual for the House of Lords and House of Commons to go three round of ‘ping-pong’ at the final stages of legislation, but such are the feelings about the Criminal Justice and Courts Bill that the two chambers have been slugging it out, as Lord Chancellor Chris Grayling’s proposed reforms to both youth custody and judicial review (JR) have come under sustained scrutiny and attack.
A key plank of the criminal justice side of the bill has been a provision for controversial new large secure colleges for young offenders to be outsourced to the private sector. Led by crossbencher Lord Ramsbotham, the lords have insisted that, given this is a hugely controversial model for youth justice, boys under 15 and girls of all ages should not be sent to these large mixed-sex institutions without further parliamentary approval. On this, it now looks as if the lords may get their way.
The lords repeatedly rejected Grayling’s plans to introduce pre-determination at the JR permission stage, based on a test that if it is ‘highly likely’ that the outcome won’t change a public body’s decision, judges should not allow full proceedings.
After much pinging and ponging between the chambers, it now looks as if Grayling is having to give way to the peers to some extent, at least accepting the substantive point of crossbencher Lord Pannick’s amendment that judges should have some discretion not to apply the ‘highly likely’ test. Some other concessions may also be given on public disclosure thresholds, but the rules on interveners have already sadly passed without much modification.
news comment: Unity over criminal contracting may yet prove fragile
Last month, criminal legal aid solicitors presented a united front in the judicial review of criminal legal aid duty tenders. They were able to do so because of a policy u-turn by the Law Society, which was made possible by the exit of the main players who had been associated with its controversial agreement with government over criminal tendering.
Just over a year ago, reaction to the government’s proposals on criminal legal aid tenders was split between the Criminal Law Solicitors Association (CLSA) and the London Criminal Courts Solicitors Association (LCCSA) on one side, and the Law Society on the other. While the CLSA and LCCSA officially took a neutral stance, many of their members supported the vote of no confidence against the then Law Society president, Nicholas Fluck and chief executive Des Hudson, in December 2013.
Fluck was probably just unfortunate to have been at the helm when the issues around the tenders and the society’s ‘deal’ with the government arose. Hudson and Patricia Greer, society chief of corporate affairs, seem to have been the key players in trying to push through an agreement with the government. The most controversial aspect of which was the proposal to introduce a two-tier system of criminal legal aid contracts, which, if it goes ahead, will result in fewer than a third of firms who currently hold duty contracts continuing to do so.
Hudson’s decision to try to negotiate a deal with the government, rather than take the line of outright opposition, seems to have been informed by the failure of the campaign against the LASPO bill.
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Hudson: lost no confidence vote
In the summer of 2013, LAG understands, that there were high-level talks behind the scenes between the MoJ and the society. It seems that Greer played a key role in these discussions. Given her previous experience at the heart of government (she had spent four years as deputy director of the prime minister’s strategy unit), she would have been seen as a safe pair of hands to be involved with the negotiations.
Society insiders say that it was Greer who agreed to the package of changes around duty tenders without consulting practitioner members of society committees. The key issue in what was agreed was the government’s decision to grant own-client contracts. It appears that the society senior leadership believed this was a major concession by the government. Greer is now conducting a review for the justice secretary into making legal services more affordable, but attempts to contact her via the MoJ press office for a comment for this article were not successful.
Criminal legal aid firms were allowed to apply for own-client contracts (these will commence in July this year) and, following this, a tender round for duty contracts would be held (which is the subject of the judicial review). So, while firms might miss out on duty contracts, they could continue with own-client work. The backlash against the agreement was immediate, as firms need access to duty work to generate new clients.
Opposition to the agreement coalesced around the motion of no confidence, brought by Liverpool solicitor James Parry. The society argued that what had been agreed with the government was a compromise to prevent competitive tendering for the duty contracts. After losing the vote, the society quietly dropped its support for the own-client contract compromise it had previously negotiated. This has been assisted by the change of personnel at the top: Hudson announced his retirement in March 2014; Greer left in May last year; and Fluck’s term of office ended in July.
Most criminal legal aid solicitors believe Hudson and Greer made the wrong call and should have not agreed to the two-tier contracts. However, some of the most acute anger about its handling of negotiations has dissipated, with the focus of criminal practitioners’ attention moving to the judicial review, and away from the details of what was negotiated over own-client work.
However, whether this fragile truce lasts may depend in part on how the judicial review unfolds. The key issues in the case seem to centre around the expert reports which were commissioned as part of the agreement that the society struck with the government. This is rather fortunate, as any forensic analysis by the court of the other aspects of the agreement could prove an embarrassment to the society and certainly undermine the new found sense of solidarity between the representative bodies.