Despite their victory in the criminal legal aid judicial reviews this week some doubts remain over whether the government will be able to restart the duty tender process, suspended pending the judgement.   The Criminal Law Solicitors' Association and London Criminal Courts Solicitors' Association had brought the original judicial review and had been joined in the proceedings by the Law Society bringing a related judicial review. In a nutshell, Lord Justice Laws and Mr Justice Cranston decided the government's decision to limit the number of duty contracts to 527, cutting at a stroke by nearly two thirds the firms currently providing these services, might not be in the interests of access to justice, but did not fall into the legal definition of irrational. The representative bodies are appealing the judgement and like many, I will hope for a different result in the Court of Appeal.   Considering what is fair to the parties pending the Court of Appeal’s judgement is where the legal issues get mixed-up with the world of politics, territory which the judiciary are always keen to avoid straying into. While losing the battle on Wednesday the representative bodies won a significant tactical skirmish. The Court awarded a stay to prevent the government re-launching the tender round until after 4pm on Friday 27th February.   No bets are being taken on if in lodging their appeal the three representative bodies will make an application for a further stay pending the result in the Court of Appeal. Their argument will be that the tenders should not go ahead at considerable cost to both legal aid firms and the public purse, until after the Court has ruled on the legality of the tender process. Whereas the government’s argument is likely to amount to such a delay would be unjust as it would in effect hand victory to the losers. Why? Well unless the Court of Appeal can decide the case very quickly, the Secretary of State for Justice, Chris Grayling, would come up against the general election campaign timetable making it difficult to make the politically charged decision to go ahead with the tenders.   Here are some of possible scenarios, which I’ll call happy, unhappy and very unhappy Grayling. Scenario one, happy Grayling, the stay is not extended and the Ministry of Justice announces on Monday 2nd March that the tender round is re-opened to Monday 30th March, the official start of what is known as the short general election campaign. Scenario two, unhappy Grayling, the application for the stay is successful and the government cannot make a decision on the tenders until after the 30th March. Finally, next month or in April the Court of Appeal could decide in favour of the representative bodies which would force the government to re-consider the whole exercise, (the very unhappy Grayling scenario).   It is in the second scenario that there is the most potential for legal and political controversy. Governments tend to avoid making political decisions during election campaigns due to the parliamentary convention know as purdah. Labour’s Sadiq Khan has already said he will scrap the process if elected, making any decision to go ahead with the tenders after 30th March potentially highly controversial- though this is not something that you would bet against Grayling trying to do.   This brings me to perhaps the most important point for criminal legal aid firms. Grayling is highly committed to the duty tender policy. He does not see it as a matter of access to justice, but of facing down the vested interests of those who don’t want to accept change, (perhaps he sees the representative bodies as a posh version of the old industrial unions?). This is why I’d argue criminal legal aid firms must prepare for the worst, but hope for the best. In other words dust down your applications for duty tenders, but keep fighting.   Steve Hynes, Director of LAG