Duncan & Anor, R (on the application of) v Legal Aid Board & Anor, Court of Appeal - Administrative Court, February 16, 2000, [2000] EWHC Admin 294

Resolution Date:February 16, 2000
Issuing Organization:Administrative Court
Actores:Duncan & Anor, R (on the application of) v Legal Aid Board & Anor

Case No: CO/4807/99




Royal Courts of Justice

Strand, London, WC2A 2LL

Wednesday, 16th February 2000

B e f o r e :





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(Transcript of the Handed Down Judgment of

Smith Bernal Reporting Limited, 180 Fleet Street

London EC4A 2HD

Tel No: 0171 421 4040, Fax No: 0171 831 8838

Official Shorthand Writers to the Court)

Mr Richard Gordon QC, Jenni Richards & Paul Bowen (instructed by Mackintosh Duncan for the Applicants)

Mr Nigel Pleming QC & Beverley Lang (instructed by the Legal Aid Board for the First Respondents)

Jonathan Crow (instructed by the Treasury Solicitor for the Second Respondent)


As Approved by the Court

Crown Copyright ©


Part Title Para Nos

1 An overview of the issues in the case 3 - 17

2 The history of legal aid before the 1988 Act 18 - 31

3 The 1988 Act and its aftermath 32 - 51

4 The need for reform: the advantages and challenges of controlled contracts 52 - 77

5 Certificated legal aid 77 - 86

6 The allocation of funds and the bidding system 87 - 111

7 The firm of Mackintosh Duncan and its contract award 112 - 130

8 The Burgundy book 131 - 135

9 Mackintosh Duncan's concerns about the new scheme 136 - 175

10 Prescribed panels 176 - 183

11 The new controls over travelling expenses 184 - 205

12 Practical problems facing firms under the new scheme 206 - 219

13 The meeting on 20th December and the amended contract offer 220 - 250

14 The Board's discretions and the need for transparency 251 - 302

15 The new generic franchise categories, their purpose and their scope 303 - 324

16 Particular franchise categories: (i) mental health 325 - 373

17 Particular franchise categories: (ii) community care 374 - 394

18 Particular franchise categories: (iii) employment 395 - 398

19 Particular franchise categories: (iv) immigration 399 - 413

20 The Law Society and the Legal Aid Practitioners' Group 414 - 430

21 The complaints by other practitioners 431 - 443

22 The applicants' submissions: (i) The common law right of access to the courts 444 - 468

23 The applicants' submissions: (ii) The right conferred by section 32(1) of the Legal Aid Act 1988 469 - 477

24 The applicants' submissions: (iii) the treatment of the not for profit sector 478 - 485

25 The applicants' submissions: (iv) Wednesbury irrationality 486 - 547

26 The court's conclusions 548 - 584

Lord Justice Brooke:

This is the judgment of the court.

There is before the court an application by Ian Duncan and Nicola Mackintosh for permission to apply for judicial review. They are the partners in a small firm of solicitors who have been practising under the name of Mackintosh Duncan since 1st July 1999 from office premises in Borough High Street, Southwark. The respondents to this application are the Legal Aid Board ("the Board") and the Lord Chancellor. At one level the applicants are challenging the legal validity of the whole new scheme for legal advice and assistance and free representation at mental health review tribunals which was introduced by the Board under powers given to it by the Lord Chancellor and with the authority of both Houses of Parliament with effect from 1st January 2000. At this level the applicants also challenge the legal validity of two directions made during December 1999 by the Lord Chancellor under Section 4(4) of the Legal Aid Act 1988 ("the 1988 Act") and one statutory instrument made by him in the same month, following positive resolutions by each House of Parliament, under Section 8(3) of the Act. At a lower level the applicants challenge the legal validity of the new scheme because they castigate as irrational certain aspects of the way in which the Board has planned and implemented it, particularly in relation to the way in which it affects their firm and their clients or potential clients. Their application is supported by the Law Society. Although the Society has not formally intervened, there are in evidence two statements by its President, Mr Robert Sayer, nearly 40 letters and two affidavits from firms of solicitors or other interested agencies who are worried about the way the scheme will affect their staff and their service to their clients, and a large number of documents concerned with the scheme and the events that led up to its introduction.

On 13th December 1999 Latham J refused the applicants interim relief. He directed that their application for permission be listed for hearing before a Divisional Court on 12th January 2000, with the substantive hearing to follow if permission was granted. On 12th January we granted the Board and the Lord Chancellor a short adjournment, for reasons we gave then. The six-day hearing eventually started on 24th January, and we are very grateful to the parties and to their legal representatives for the skill they have displayed in presenting a large volume of complex material before the court in such a clear manner so quickly.

Part 1. An overview of the issues in the case

The importance and sensitivity of the issues we have been invited to consider can be gauged from one sentence near to the start of Nicola Mackintosh's first affidavit. She says that her firm is bringing these proceedings as a result of severe concerns that the scheme as currently envisaged will have devastating results for the most vulnerable people in society, who are in most need of quality legal advice and representation. Her sentiment is echoed by the President of the Law Society. His first affidavit ends like this:

"Practitioners are seriously concerned at the effect of the contracting process on their clients. They believe that their clients will be denied access to justice. Many firms who specialise in social welfare areas of work often deal with people from deprived areas who desperately need access to effective legal help. They frequently do this work from a strong commitment to the vulnerable and disadvantaged because they believe that people with legal problems have an entitlement to good quality services. The Society believes that the current contracting proposals will effectively deny many of the most vulnerable members of the community access to the very help they need."

  1. Language as powerful as this made us look very carefully at the policy objectives which underpin the new arrangements introduced by the Board. Although it is a corporate body in its own right and is not to be regarded as the servant or agent of the Crown (1988 Act, Schedule 1, paras 1 and 2), it derives most of its resources from funds paid to it by the Lord Chancellor out of money provided by Parliament (ibid, Sections 6 and 42), and in discharging its functions it is bound to have regard to such guidance as may from time to time be given by him (ibid, Section 5(4)).

  2. Although the detailed history of this matter will follow later in this judgment, it is necessary to describe now how in January 1998 the Lord Chancellor invited the Board to prepare for his consideration a new system of advice and assistance for all civil and family matters. This system, he said, should be based exclusively on contracts so far as possible at fixed prices/rates let by the Board to suppliers who could demonstrate a suitable level of quality. He wished the Board to prepare for his consideration an implementation plan to deliver this objective by the end of 1999.

  3. After conducting a consultation process, the Board reported to the Lord Chancellor nine months later. On 13th October 1998 he accepted the Board's proposals and asked it to implement them. During the following year Parliament debated the bill which was to become the Access to Justice Act 1999 ("the 1999 Act") and in April 2000 the Board, and the 1988 Act, will be replaced by the new Legal Services Commission and the relevant provisions of the 1999 Act. That Act was preceded in December 1998 by the publication of a Government White Paper called "Modernising Justice" (1998, Cm 4155).

  4. Although the reforms with which we are concerned were introduced under the enabling powers contained in the 1988 Act (which will continue to be the governing statute for the first three months of the new scheme), they are expressly mentioned in paragraphs 3.13 and 3.16 of the White Paper. Mr Jonathan Crow, who appeared for the Lord Chancellor, told us that we were entitled to consider the contents of the White Paper when identifying the policy objectives which the Lord Chancellor wished the Board to pursue.

  5. Mr Richard Gordon QC, who appeared for the applicants, therefore invited us to read very carefully the Lord Chancellor's Foreword to the White Paper. Its underlying theme is that people must be confident that they can enforce the rights they have, if need be, and that the more people are helped to become citizens with a stake in society, the less society has to fear from one of the worst effect and causes of social exclusion: crime.

  6. Chapter 3 of the White Paper is concerned with the reform of civil legal aid. It explains that it is necessary to set priorities which reflect genuine need (para 3.5), and that any system for funding legal services in civil and family cases should meet four objectives (para 3.6). Of these objectives the three that are most relevant in the present context are that such a system should:

    (1) direct the available resources to where they are most needed, to reflect clearly defined priorities;

    (2) provide high quality services that achieve the best value for money;

    (3) have a budget which is affordable to the tax payer; and can be kept under control.

  7. With these aims in mind, the White Paper explains that the Government believes that three areas should have greatest priority (para 3.7):

    (1) social welfare...

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