Cutting Corners: The Procedural Illegality of Legal Aid Cuts
In R (London Criminal Courts Solicitors Association & another) v Lord Chancellor  EWHC 3020 (Admin), the High Court ruled that the consultation process adopted by the Government in reducing the number of criminal legal aid contracts was so unfair that it was unlawful.
In February 2014, the Lord Chancellor announced that a radical overhaul of legal aid would see an immediate reduction of 8.75 per cent in criminal legal aid fees and a reduction of the number of available contracts for advisory work in police stations and associated work (‘Duty Provider Work contracts’) from 1600 to 525. The reforms led to protests and strike action within the legal profession, with concerns being expressed about the damage such cuts would cause to the criminal justice system.
While the claimants in the present action reiterated their profound disagreement with the merits of the Government’s decision, the judicial review focused on the narrower question of whether the process adopted in reaching the relevant decisions was lawful. The challenge centred on the fact that the Lord Chancellor should have disclosed, and consulted on, financial reports by Otterburn and KPMG; the latter report was alleged to have been based upon controversial assumptions which had not previously been publicised by the Lord Chancellor.
The Government was under no statutory duty to consult in connection with the legal aid changes; however, there was a long-standing practice of doing so (at ). As held by Lord Woolf in Coughlan  QB 213 at , ‘if [consultation] is embarked upon it must be carried out properly’. And, the impact of a particular decision is relevant in determining what is ‘proper’ consultation in any context. In the present case, both sides agreed that the ‘context of the Lord Chancellor’s decisions, namely their potential impact on the livelihoods of solicitors and access to justice, placed this case towards the upper end of the scale so far as the demands of fairness were concerned’. (Interestingly, Burnett J’s judgment indicates that his Lordship was particularly influenced by the impact on solicitors’ livelihoods, seemingly in preference to arguments focusing on the impact on those accused of crimes, see e.g.  and .) In the light of this high standard of consultation that was required, the failure to disclose the reports was so unfair as to result in illegality (at ).
The implications of the decision may be relatively limited. The decision does not hold the cuts to legal aid themselves as illegal; while the claimants sought to argue that the 8.75 per cent fee cut should also be quashed, Burnett J held that this decision was not sufficiently connected with the flaws identified in the consultation process (at ). Further, while the Government is now required to consult on the number of Duty Provider Work contracts to be awarded, it was recognised that a ‘relatively short re-consultation period would be sufficient’ (at ). What is perhaps most significant is the existence of yet another judicial criticism of the Government’s desire to rush through cuts to the legal aid system without due concern for the impact that such cuts will have on individuals’ lives.