The lawyers are clear. Following their recent successful legal challenge, they wouldn't trust Grayling further than they can throw him, as this blog explains:-
Ministry of Untruth. Who would trust the MOJ now?
It was a wonderful moment when finally the truth about the behaviour of the Lord Chancellor and his so called Ministry of ‘Justice’ was revealed in the historic judicial review judgement delivered by Mr Justice Burnett on Friday. There, exposed to the whole world was a scandalous history of double dealing and concealment. The truth exposed and long suspected, was that this Ministry will do almost anything to drive through doctrinaire and narrow policies based upon questionable and bogus statistics and in doing so suppress and distort expert evidence that does not support their bizarre proposals that so threaten access to Justice.
The description in the Judgement of our Ministry of Justice consultation as ‘unfair’ and ‘illegal’ was an extraordinary event bearing in mind the remit of that Ministry namely ‘Justice’. What a shameful moment in our country’s history. What will the world think? This causes huge reputational damage to the UK whose legal system was once the preeminent exemplar of fairness but now the very Ministry presiding over our legal system is severely damaged and compromised.
What went wrong? As we know the Lord Chancellor and his officials refused to allow the profession advance sight of the expert reports (Otterburn and KMPG) failing to allow us all the chance to make representations upon their content. In one of the many correct ‘calls’ he made, Bill Waddington our courageous CLSA Chairman, with pin point precision, asked for advance disclosure of the reports and was rebuffed by Mr Grayling personally by letter. The MOJ then proceeded to be over-selective in taking parts from the Otterburn report and then directing the KMPG team to adopt absurd assumptions, not referred to therein (Duty firms will surrender 50% of their own client base to non duty firms) entirely of their own departmental device and invention. It was thus far from being truly independent research as promised in the consultation.
But it is far more serious than this. Without bringing this action and without the consequential discovery of documentation procedure we would never have known about the PA Consulting report ruthlessly suppressed by the MoJ. The MoJ commissioned independent expert evidence from PA Consulting on the effect of cutting legal aid fees and then suppressed that evidence when it produced findings which were the opposite of what they wanted to hear as it would have given ammunition to critics of Mr Grayling’s proposals. The PA report overwhelmingly demonstrated that the profession could not survive the proposed cuts to legal aid.
Despite the Lord Chancellor personally having given a commitment to the practitioner groups to follow the recommendation of Otterburn, he then reneged upon this without notice and without giving reasons. The mealy-mouthed response that the Lord Chancellor meant this commitment to ‘include KMPG’ (whom no one at that meeting had heard off at that stage) and not just rely upon Otterburn was not credible (so found the Judge).
Thus did the Lord Chancellor and the MOJ manipulate or suppress the statistics and reports so determined were they to make the ‘expert report evidence’ support of their pre-determined decision already made in favour of the demonstrably unworkable 2 tie system. I am unable to reveal private conversations at meetings that I attended with others opposite the MOJ but suffice it to say the behaviour we encountered was entirely consistent with the conduct revealed by the proceedings with an onslaught consisting of a mixture of entreaties, bluffs and threats. The CLSA, with their fine allies in the LCCSA, stood firm and resisted it all. I am proud of what we achieved and above all happy that the profession after years of ‘taking it’ felt we hit back on their behalf.This on the politics.co.uk website by Nicola Hill, president of the London Criminal Courts Solicitors' Association – one of the two claimants who won the judicial review:-
Comment: Chris Grayling has been taught he's not above the law
Friday, 2 pm – momentous news. Not north of the border but in court one of the Royal Courts of Justice. A senior judge rules that the lord chancellor and justice secretary has acted illegally. The highest law officer in England and Wales brought to book by judicial review. What an irony. This is the very process Chris Grayling wants to restrict, to prevent ordinary people having the right to hold the state to account.
So what happened in the high court on Friday? The judge ruled that some of the biggest changes in the history of publicly funded legal aid had to be stopped in their tracks. Grayling wanted to reduce the number of solicitors who are able to represent you, me, your teenage son or daughter at a police station or magistrates' court. But the high court decided the methods the minister tried to use to bring in these cuts were "so unfair as to be illegal". It all centred on a consultation – one of those where they don't properly consult anyone who actually matters. But in this case it's even worse that. The Ministry of Justice suppressed two key reports which were instrumental in pushing through the changes.
The ruling means that it is back to the drawing board. They are now going to have to consult all over again about these highly controversial proposed solicitor contracts - arrangements which would have driven down standards and meant there were far fewer solicitors available in police stations and magistrates' courts. They'd have given rise to appalling legal advice deserts. The brakes have been put on a politically motivated vandalism of our justice system, damage inflicted by the first non-lawyer to ever hold this post.
I am a lawyer and can see how momentous this judgement is. Momentous for people who have the right to a proper defence and momentous for the lawyers who want to do the job properly. It goes to the heart of what makes our justice system fair. Grayling has also been taught a very basic but important legal lesson. He may be a senior Cabinet minister in charge of our courts, prisons and probation services but he is not above the law.
It got very personal, which isn't what you expect in the dryness of a judicial review. Grayling's tactics were labelled that of "bully and bluff", "divide and rule". It was, according to our side, a "caricature of fairness". We don't like to get personal but - driven by ideology and underpinned by ignorance - these are very much Mr Grayling's reforms.
The justice secretary has a habit of burying his head in the sand, ignoring the real price of his cost-saving reforms in the criminal justice system, and effectively repeating: 'Crisis? What crisis?' We've seen a summer of discontent in the criminal justice system: with the deeply troubling rise in prison suicides, a meltdown in probation and a family court service at breaking point. We think of this terrible track record but the justice secretary would rather not. Perhaps no longer. The lord chancellor has been thrown the rule book by a judicial process which he is attempting to shut down. Through sheer determination, guts and legal know-how, we criminal defence lawyers took on the might of the Ministry of Justice and won. No wonder Grayling wishes to restrict access to justice where the state has to account for its decisions. What the high court ruling has allowed is room for an outbreak of sanity.
Let's stop using austerity as a cover for ideological changes. We want to improve the justice system as much as Grayling. We're ready to sit down and talk. But after this humbling judgement, is he?Of course we've always known what a bully and thug Grayling is, and it was confirmed on day one of the legal action, as reported here in the Guardian:-
The justice secretary, Chris Grayling, relied on "bluff and bully" tactics to drive through legal aid cuts that will close hundreds of law firms, the high court has heard. At the opening of a judicial review challenge brought by criminal solicitors, Grayling was accused of coordinating a "caricature of fairness" in a Ministry of Justice (MoJ) review.
The changes being introduced provide for cuts of 17.5% in criminal court fees and reduce the number of duty solicitor contracts for attending police stations and courts in England and Wales from 1,600 to 525. The case has been brought by the London Criminal Courts Solicitors' Association and the Criminal Law Solicitors' Association, which say the consultation was unlawful. As lord chancellor, Grayling is named as the defendant in the hearing.
Appearing for the solicitors, Jason Coppel QC said the changes "put the criminal justice system at risk". "It's not based on any research," he said. "The very likely consequence is that hundreds of small firms will go out of business. "In large areas of the country [people] will not have access to a solicitor and the quality of the service will suffer."
The challenge is focused on the adequacy of the MoJ's consultation process, crucial details of which, it is alleged, were withheld from the legal profession at the time. "Now that we have seen the research from [the accountancy firm] KPMG on which decisions are based," Coppel said, "it highlights the injustice of not disclosing that research. Some of this was deeply unfair and nothing less than an insult to those in criminal legal aid firms who stand to lose their livelihoods."
The lord chancellor himself, Coppel added, "got personally involved in this process and … caused much of the unfairness in these decisions … The claimants have a right to expect procedural fairness. What they got was a caricature of fairness: empty assurances, bluff and bully, divide and rule, fronted by a senior member of the government." Evidence contrary to the MoJ's aims was suppressed, the court was told.Given this success, not unnaturally many Napo members will be wondering exactly when their legal challenge will be launched? News is beginning to filter out from yesterday's NEC meeting when the subject was discussed. I'm told the lawyers were present and basically saying all the usual guff about it might not be a strong case and might cost a lot of money. So, apart from them continuing to wrack up a large bill, we're absolutely no further forward. Maybe it's time to get another lawyer? Or review the instructions?
The trouble about all this is that the lawyers might just be reflecting the clients instructions. If the client is hesitant, is concerned more about the cost than the risks of winning or losing and in a business where nothing is ever 100% certain, isn't the legal advice going to reflect that view? In the end it's going to boil down to trust and at the forthcoming AGM members will have to make a judgement call. As with our work, we look at the evidence and the track record, listen carefully to the explanation and make a decision as to whether it all adds up or not?
Whatever, I do know this. The General Secretary had better have a damned good explanation as to why a union and profession, facing almost complete destruction as we know it, some 12 months on has still not mounted any legal challenge whatsoever, to the astonishment of the MoJ and most observers of this sad, sad TR omnishambes.