The London Criminal Courts Solicitors Association & Ors, R (On the Application Of) v The Lord Chancellor (Rev 1)

Where a public authority makes a discretionary policy judgment involving technical complexity and uncertain predictions, the conventional Wednesbury standard ordinarily applies. Unless legislation determines otherwise, the authority may decide what information is relevant and the manner and intensity of its inquiries, subject to rationality review.

A court must distinguish review of fact-finding from supervision of a predictive policy judgment. It cannot prescribe further investigation merely because another reasonable decision-maker might have undertaken it. Business goodwill may be protected under Article 1 of the First Protocol, but an expectation of future income under a time-limited public contract is not thereby a possession.

The Lord Chancellor decided to replace the existing criminal legal aid contracting arrangements with separate contracts for own-client work and duty-provider work. He limited duty-provider contracts to 527 and planned a second reduction in fees. That number derived from a KPMG model based on assumptions about market consolidation, staff efficiency and financial viability.

Two groups of claimants sought judicial review. They principally alleged that the Lord Chancellor had misunderstood or insufficiently investigated the investment and transition costs which firms would incur. They also challenged the consultation process, refusal to disclose an executable model, tender timetable, reliance on delivery partnerships and interference with goodwill under Article 1 of the First Protocol.

The rolled-up hearing concerned permission and the merits. The central issue was whether, under the applicable intensity of review and the Tameside duty of inquiry, the Lord Chancellor had lawfully informed himself before making the predictive policy judgment.

1. Permission was granted, but the substantive applications were dismissed. The challenged arrangements were made under section 2(1) of the Legal Aid, Sentencing and Punishment of Offenders Act 2012. They involved discretionary and technically complex predictions. No breach of the absolute duty to secure criminal legal aid under sections 1 and 13 had been established. The conventional Wednesbury standard therefore applied.

2. Where legislation does not prescribe the relevant considerations or required inquiries, the decision-maker chooses them, subject to rationality review. The same principle governs the manner and intensity of inquiry into an accepted relevant factor. The court must not treat a predictive policy judgment as if it were solely a fact-finding exercise or prescribe procedures merely because other reasonable inquiries were possible.

3. The Lord Chancellor understood that KPMG's break-even assumption excluded investment costs. He considered the implications of transition costs, possible financial support, accelerated interim payments, market monitoring and contingency arrangements. Given the variability of firms' choices, difficulties in estimating costs, limited available data and timing considerations, it was rational to decline further investigation. He could also rationally regard interim payments and other possible finance as materially assisting providers.

4. The consultation responses had received proper consideration. The request for an executable version of the model was late and, in any event, the published methodology allowed informed criticism. The tender period was neither disproportionate nor unlawfully discriminatory when assessed in its full context. The Lord Chancellor was also entitled to regard delivery partnerships as a workable means of consolidation.

5. The Article 1 Protocol 1 claim failed. A legal aid contract was time-limited, and no firm had a right to a new contract. Although established goodwill may be a possession, an expectation of future trade or income without an enforceable claim is not converted into goodwill. No interference with an identified possession was shown. Any interference would, in any event, have been proportionate.

Cranston J agreed with Laws LJ.

The claims were first-instance applications for judicial review. The judgment records earlier directions for an expedited rolled-up hearing and an interim suspension of the duty-provider tender process.

An earlier decision concerning 525 duty-provider contracts had been quashed in separate proceedings reported as [2014] EWHC Admin 3020. That judgment was part of the policy's background, not an appeal to this court.