Challenges to Grayling criminal legal aid decision dismissed

18/02/15

The Divisional Court (Laws LJ and Cranston J) today dismissed two claims challenging the Lord Chancellor’s decision to reduce the number of criminal legal aid contracts for police station duty work and to invite tenders for those contracts.

The first claim was brought by the London Criminal Courts Solicitors’ Association, the Criminal Law Solicitors’ Association and a firm engaged in criminal legal aid work; the second by the Law Society. Both challenge a decision taken by the Lord Chancellor in November 2014 to reduce the number of duty provider contracts from over 1800 to 527 larger contracts, with the aim of encouraging the market consolidation. The need for market consolidation had been acknowledged for some time but arose in the context of budget reductions required by the Government.

A decision reducing the number of contracts to 525 had been successfully challenged in September 2014 on the basis of a failure to consult on two expert reports. The November decision was challenged on a number of grounds including: failure to consider and adequately investigate the investment costs associated with "scaling up”; failure to disclose a fully executable version of the economic model used by the Ministry’s consultants; breach of the procurement rules; and breach of Article 1 of Protocol 1 to the ECHR. 

The court rejected the argument advanced by the claimants that a heightened standard of review applied because the decision put at risk the delivery of the Lord Chancellor’s statutory obligations to provide criminal legal aid, a risk with implications for the rule of law. Distinguishing the Court of Appeal’s decision in Lumsdon v Legal Services Board, Laws LJ held that a technical decision involving a predictive judgment in an area in which the court was not institutionally competent engaged the normal Wednesbury standard of review only. Applying that standard, it could not be said that the Lord Chancellor had failed to consider investment costs, even though he had not modelled or investigated the precise extent of these costs. The other grounds of challenge were also rejected.

Permission to appeal to the Court of Appeal was refused, but the stay on the Lord Chancellor’s decision was extended until 27 February to enable the claimants to apply directly to the Court of Appeal.

The judgment is here.