With apologies for lengthy (but enjoyable) quotes from the judgments, Rhona Friedman, Sue James and Simon Mullings analyse three recent judicial reviews of legal aid decisions.
Welcome to the article that writes itself. In three damning judgments in three judicial review cases against the lord chancellor, patterns of unlawful behaviour on the part of the Legal Aid Agency (LAA) in relation to the administration and funding of civil and criminal legal aid have been revealed:
No explanation was given for why it was felt that larger contracts would provide for greater sustainability. The statement that professional groups provisionally agreed was untrue (para 38).
In short, the arguments advanced on behalf of the lord chancellor do not begin to justify the failure to disclose the key analysis relied on in making the decision. Instead, those arguments only serve to underline why its non-disclosure was unfair. We conclude that the failure to disclose this information was a fundamental flaw in the consultation process which made it so unfair as to be unlawful (para 97).
We conclude that the failure to disclose the ‘calculator’ was a breach of the LAA’s duty of transparency and clarity, that it has introduced serious procedural unfairness into the operation of the IFFO scheme in this case, and that no rational basis has been shown for the non-disclosure (para 78).
Any one of these judgments would give a reasonable observer cause for grave concern as to how legal aid is being managed by government and its executive agency. Promulgated over the course of eight weeks this summer, these three judgments show beyond any doubt that decision-makers have lost their way, not only in relation to the specific purposes of the legal aid scheme, but more generally, in respect of their basic duties as public servants.
These judgments should be read and given prominent consideration in the government’s post-implementation review of LASPO.
It is self-evident to the authors that the wrongs that have been exposed are entirely consistent with the flawed project of the reforms under the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO). These judgments should be read and given prominent consideration in the government’s post-implementation review.
Law Centres Network judicial review: big was not better
In an act of David v Goliath defiance, the Law Centres Network (LCN) challenged the LAA in respect of its tender process to procure new contracts for the housing possession court duty schemes (HPCDSs).
When retendering, the LAA sought to introduce price competition and ‘bundled’ courts together to make bigger scheme areas but fewer schemes. It was asserted that smaller scheme areas were not sustainable,
1See Housing possession court duty scheme: commissioning sustainable services, MoJ, 20 January 2017. whereas in fact the evidence pointed to the reverse. The proposed changes would have been harmful to Law Centres and, in turn, the vulnerable clients they help.
Undeterred, the LAA briefed the responsible minister that its case that ‘bigger means better’ was accepted by professional bodies. The judgment explains:
35. On 3 November 2016, a submission was made by the LAA to the minister of state (then Sir Oliver Heald QC MP) seeking clearance to carry out a consultation on the proposal to consolidate the number of HPCD schemes and introduce price as a criterion in the competitive tendering process. The ministerial submission included this passage under the heading ‘Background’:
‘You asked the LAA to obtain initial views from the profession on the proposals on HPCDS. The LAA met with the Law Society and the Legal Aid Practitioners Group on 2 November to discuss the HPCDS proposals on a confidential basis. They accepted the case for more sustainable schemes, and agreed with the outline principle of fewer, larger schemes [emphasis added].’
36. Regrettably, that final sentence was both inaccurate and misleading. The true position was that the 2 November meeting was a private briefing about the LAA’s intentions, rather than a meeting to canvass views about the merits of the proposition that larger schemes would be more financially viable. Whatever the minister might have wished, the views of the two named professional bodies … were not sought, let alone obtained, and there most certainly was no agreement, in principle or otherwise, with the 'outline principle’ …
Along with a failure to comply with the public sector equality duty (Equality Act 2010 s149), the judicial review was won on the basis that the lord chancellor had failed in his duty to take reasonable steps to acquaint himself with relevant material, as required by
Secretary of State for Education and Science v Tameside MBC [1977] AC 1014. Instead, the LAA presented the minister with a false prospectus that ‘was not evidence-based’ (para 34) but was ‘inaccurate’ (para 36), while misrepresenting the position of two statutory consultative bodies.
Law Society judicial review: 33m reasons why this was a cut too far
The challenge here was to the Criminal Legal Aid (Remuneration) (Amendment) Regulations 2017 SI No 1019, which reduced payments to solicitors under the litigators’ graduated fees scheme (LGFS) in criminal defence work. The result would have been a reduction of payment per case of anything up to 40 per cent – crippling for many firms. In the LGFS, the number of pages of disclosed prosecution evidence (PPE) is used as a proxy for complexity and therefore higher payments. There was (and is) a cap of 10,000 ‘pages’ of prosecution evidence. Disclosure of documents above the cap only results in increased payment if the defence firm can persuade the LAA that the work resulting from this additional evidence merits special preparation payment.
The LAA proposed to lower the cap to 6,000 pages as it said that
R v Napper [2014] 5 Costs LR 947 broadened the circumstances in which electronic evidence could be counted as PPE.
2See Litigators’ graduated fees scheme and court appointees, MoJ, 10 February 2017. The LAA claimed that
Napper had resulted in increased expenditure, a proposition dismissed by the professional bodies and the court. As the judgment explains:
104. The characterisation of the Napper case [by the LAA] and its significance in the consultation documents seems to us on any reasonable view to have been simplistic …
[…]
122 … we see no escape from the conclusion that the LAA analysis was vitiated by methodological flaws and that no reasonable decision-maker could reasonably have treated the figure of £33m [of increased expenditure] produced by that analysis as an estimate of increased expenditure attributable to the Napper decision on which reliance could reasonably be placed.
It is in the nature of complex government consultations that mistakes are made and poor decisions approved. However, what is striking from a good governance point of view is that the LAA may have run a rigged consultation:
83. No explanation has been given on behalf of the lord chancellor for the absence of any reference to the figure of £33m and the analysis on which it was based in the consultation documents. It is therefore unclear whether this omission occurred through oversight or was the result of a deliberate decision not to disclose this information …
A key factor in the LAA’s defeat was the unlawful nature of the consultation, or, to borrow a phrase from criminal defence solicitor, Robin Murray, the ‘nonsultation’. As is common with Ministry of Justice (MoJ) consultations, the majority (97 per cent) of respondents opposed the change, but the government pressed on regardless. It was only the duty of candour in the judicial review proceedings that exposed the fundamental flaw at the heart of the consultation. A ‘flaw’ that the court considered may have been a deliberate concealment.
This amounted to a breach of the principles of lawful public consultation as set down in
R v North and East Devon Health Authority ex p Coughlan [2001] QB 213 at para 108:
… To be proper, consultation must be undertaken at a time when proposals are still at a formative stage; it must include sufficient reasons for particular proposals to allow those consulted to give intelligent consideration and an intelligent response; adequate time must be given for this purpose; and the product of consultation must be conscientiously taken into account when the ultimate decision is taken …
The Administrative Court reached a point of judicial apoplexy when commenting on the lord chancellor’s argument that there was no breach of duty because respondents were sophisticated enough to be able to correctly guess (a bit like game show contestants) the amount the LAA wanted to claw back:
93. It is difficult to express in language of appropriate moderation why we consider these arguments without merit …
Ames judicial review: guidance-free policy and policy-free decisions – what could go wrong?
Shortly after the authors pitched this article to Legal Action, just like the 159 bus, another judicial review came along. Ames is about an arcane area of criminal practice undertaken by very few people. However, it’s significant because it also reveals a culture of secretive, opaque decision-making and a bizarre policy of having no policy.
The case concerned the very high cost (crime) cases (VHCCs) scheme and the interim fixed fee offer (IFFO) scheme. Mr Ames was being prosecuted on serious fraud charges. Defence counsel submitted a contract to the LAA that reflected the extraordinary amount of defence material in the case (they estimated some 100m pages). The LAA made a first offer, which was refused, and then a revised offer, which was also refused. An impasse was reached that halted the criminal proceedings and Mr Ames sought judicial review of the LAA’s decision, with counsel acting as interested parties.
In an amended statement of facts and grounds, Mr Ames contended that the LAA had ‘acted unlawfully in failing to publish its policy, and in particular the “calculator”, by which the fee offer was calculated’ (para 36). As to the lord chancellor’s position, elucidated by counsel:
69. As we have indicated, Mr Nicholls’ instructions were that, apart from the ‘calculator’, there was no policy or guidance and therefore nothing to disclose. As to the ‘calculator’, he submits that the LAA is under no obligation to disclose it ...
70. We of course accept that Mr Nicholls has faithfully relayed his instructions to us. We have already expressed our surprise that the simple proposition that there is no policy to disclose only emerged in the course of the hearing. We add the further observations that it is surprising that there should be no guidance at all as to how officials (however experienced) should assess what sums of public money are to be disbursed, and that the denial of the existence of any policy or guidance other than the ‘calculator’ is difficult to reconcile with a number of references by the LAA … to inputting pages into ‘the model’, or with the reference in one of Ms Burdett’s emails to a ‘rule of thumb’.
A familiar pattern emerges but with a new variation: not only was the LAA’s basis for its decision-making not disclosed at the material time, but it claimed it was not obliged to disclose it at all. The judges concluded:
75. We find the stance which the LAA has taken in this regard to be untenable. It is apparent from the evidence that the inputting of data into the ‘calculator’ is a very important part of the LAA’s assessment of fees … We cannot understand why the LAA declines to disclose it …
76. Without disclosure of the ‘calculator’, it seems to us that references by the LAA to its having taken account of the weight and complexity of the case are of very limited value, because there is no transparency about basic matters …
[…]
78. We conclude that the failure to disclose the ‘calculator’ was a breach of the LAA’s duty of transparency and clarity, that it has introduced serious procedural unfairness into the operation of the IFFO scheme in this case, and that no rational basis has been shown for the non-disclosure … it seemed to us during the hearing that there was an unwillingness on the part of the LAA to accept that errors had clearly been made, and that there could be no rational basis for declining to correct those errors and make a commensurate increase in the final offer …
Code-breaking?
The
Civil Service code (updated 16 March 2015) provides, where relevant, that civil servants must:
•always act in a way that is professional and that deserves and retains the confidence of all those with whom they have dealings;
•keep accurate official records and handle information as openly as possible within the legal framework;
•set out the facts and relevant issues truthfully, and correct any errors as soon as possible;
•provide information and advice, including advice to ministers, on the basis of the evidence, and accurately present the options and facts; and
•carry out their responsibilities in a way that is fair, just and equitable and reflects the Civil Service commitment to equality and diversity.
It further provides that they must not:
•deceive or knowingly mislead ministers, parliament or others; or
•ignore inconvenient facts or relevant considerations when providing advice or making decisions.
In the cases we have considered, the LAA:
•misrepresented to the minister the nature of a meeting with representative bodies in the course of a consultation;
•lied to the minister about the position of those two bodies to support a pre-judged position;
•failed to disclose in a public consultation the basis of the decisions it proposed to make and misled respondents in the information it did disclose;
•failed to even realise that, in matters that concerned the disbursement of public money, it needed to disclose the basis of its decision; and
•failed to correct errors when they became known.
That we are aware of these breaches of the code at all is only because the litigation shone a light on them, and the cases themselves read like textbook examples of the breaches of public trust that the code is there to prevent.
Conclusion
Untenable, irrational, misleading, inaccurate, unreasonable: these are judicial findings from the Administrative Court – a body known for understatement and restraint – not the rantings of disgruntled legal aid lawyers.
The cases highlight a kind of capricious, devil-may-care attitude to decision-making, born out of a disregard for fairness, an unwillingness to accept that errors have been made, and a reluctance to correct those errors. Practitioners and the public have the right to question whether:
1the MoJ and/or the LAA have lost sight of their public remit;
2whether the MoJ and/or the LAA are currently capable of holding lawful consultations; and
3whether the government should be fighting these cases, rather than working constructively with the organisations that are bringing them.
Common themes of secrecy, lack of transparency and lack of clarity emerge. It ought now to be unthinkable for representative bodies to engage in ‘Chatham House Rules’ meetings with the LAA or MoJ, given the revelation that, in the Law Centres Network judicial review, LAA officials misrepresented the outcome of the meeting to the minister.
The 40 per cent cut to the justice budget from 2011 to 2020 (the largest for any department) and the succession of lord chancellors (six in the past eight years) have created this culture. In late 2012, debacle-prone Chris Grayling launched the MoJ’s campaign to rid the courts of ‘weak’, ‘ill-founded’ judicial reviews,
3‘Judicial review consultation’, MoJ press release, 13 December 2012. but, ironically, it has been judicial review that has shone a light on the MoJ’s unlawful behaviour.
In the meantime, the LASPO review is underway, court closures continue apace without any analysis of the impact on access to justice and, regardless of negative consultation responses, HM Courts & Tribunals Service (HMCTS) continues to propose digitalisation as a panacea for all court service problems without reflection or any real, meaningful consultation with court users.
The MoJ and the LAA have shown themselves incapable of lawfully and properly consulting with the public and practitioners. We must press for change, but by other means: litigation, lobbying and protest.
Postscript
Just after this article was written, Duncan Lewis Solicitors were able to announce success in judicial review proceedings in forcing the LAA to amend the Civil Legal Aid (Procedure) Regulations 2012 SI No 3098 (‘Government to amend regulations in response to Duncan Lewis access to justice challenge against Legal Aid Agency and lord chancellor’, Duncan Lewis press release, 5 October 2018). This will allow for backdating of legal aid where solicitors have applied for it as soon as possible and have had no option but to start work in order to preserve the position of their clients. While the LAA’s agreement to amend is welcome, the question remains: why has it taken the issue of proceedings to get to this point? More worryingly, the journalist Emily Dugan has uncovered evidence that, during Chris Grayling’s tenure as lord chancellor, the MoJ contacted the LAA with enquiries about whether legal aid was to be granted to claimants seeking to sue the MoJ (‘People suing the government were denied legal aid after the government was briefed on their cases’, BuzzFeed, 5 October 2018). The MoJ denies any wrongdoing, but many are concerned that decision-making by the LAA in high-profile and sensitive cases could have been subject to political interference.