Attack on the rule of law

By CHRIS JOHNSON of Community Law Partnership

• Power of citizens to fight unlawful decisions by public bodies under threat
• Judicial reviews can be "essential" for Gypsies and Travellers fighting unlawful eviction
• New proposal for "interim relief"- which could help secure injunctions against evictions- missing from draft regulations

MOST respondents to the Ministry of Justice’s recent consultation process concerning judicial review stated that it amounted to an attack on the rule of law in that it might result in citizens being unable to challenge unlawful actions and decisions by public authorities.

On 5 February 2014 the MoJ published their response to the consultation: http://www.edf.org.uk/blog/wp-content/uploads/2014/02/Judicial-Review-proposals-for-further-reform-Government-response.pdf .

The availability of judicial review can be essential for Gypsies and Travellers e.g. where they are seeking to challenge an unlawful process regarding an eviction from an encampment.

In summary, in terms of legal aid for judicial review actions, the MoJ stated in their response to the consultation that a legal aid provider would only be paid for a judicial review either if the case got permission or if it settled earlier and the Legal Aid Agency decided that it should be paid, having regard to certain criteria now laid out in the draft regulations.

The MoJ also stated that an application for interim relief (e.g. to get an injunction to stop an eviction to allow the judicial review challenge to proceed) would be paid.

However the draft regulations that have just been published do not seem to achieve this end as regards interim relief. Here is CLP’s response to the draft regulations:

Following their consultation process, in Judicial Review – proposals for further reform: the Government response (February 2014), on the question of payment for pre-permission work, the Ministry of Justice concluded:

149. The paper stated that the proposal would only apply to issued proceedings. Legal aid would continue to be paid in the same way as now for the earlier stages of a case, to investigate the prospects and strength of a claim (including advice from Counsel on the merits of the claim) and to engage in pre-action correspondence aimed atavoiding proceedings under the Pre-Action Protocol for Judicial Review. In addition, payment for work carried out on an application for interim relief in accordance with Part 25 of the Civil Procedure Rules would not be at risk, regardless of whether the provider is ultimately paid in relation to the substantive judicial review claim (our emphasis).

This part of the Government response repeats the proposal made in the original consultation paper.

However this part of the Government’s response is not contained in the draft regulations.

Draft Regulation 5A states:

Remuneration for civil legal services: judicial review

5A.—(1) Where an application for judicial review is issued, the Lord Chancellor must not pay remuneration for civil legal services consisting of making that application unless

either—

(a) the court gives permission to bring judicial review proceedings; or

(b) the court neither refuses nor gives permission and the Lord Chancellor considers that it is reasonable to pay remuneration in the circumstances of the case, taking into account, in particular—

(i) the reason why the provider did not obtain a costs order or costs agreement in favour of the legally aided person;

(ii) the extent to which, and the reason why, the legally aided person obtained the outcome sought in the proceedings; and

(iii) the strength of the application for permission at the time it was filed, based on the law and on the facts which the provider knew or ought to have known at that time.

It will be seen that no mention is made of interim relief applications. 

In response to this point, the Ministry of Justice have indicated that they have defined an "application for judicial review" by reference to applications for judicial review made, or treated as made, in accordance with Part 54 of the Civil Procedure Rules 1998 (the part of the Rules that deals with judicial review). As a result, they state, applications for interim relief under Part 25 of the Civil Procedure Rules (the part of the Rules that deals with interim relief – but see further below) are not subject to regulation 5A, and will remain payable under the Remuneration Regulations in the normal way.

We are pleased to note that the Ministry of Justice are confirming that they did not intend to alter the position on interim relief as stated in their response (as quoted above). However interim relief applications are not freestanding but rather are incorporated within the judicial review application. Therefore the regulations as drafted do not achieve this aim.

What is required is a simple amendment to draft regulation 5A to make it clear that legal aid will be available for interim relief applications up to and including any hearing thereof. We had hoped that this amendment could be made but the MoJ have declined to do this. It is now likely that a member of the House of Lords will seek to annul the regulations which will lead to a debate on the issue.

Judicial review is, of course, an essential procedure across the whole of social welfare law and excellent work is being done on this issue by other groups such as the Law Society and the Legal Aid Practitioners Group. We will keep readers updated once we know when the Lords debate will take place.

We appreciate, of course, that this is a complex issue and are happy to try and answer any queries on it.

Chris Johnson (chrisjohnson@communitylawpartnership.co.uk)

Travellers Advice Team (TAT) at Community Law Partnership (CLP)

TAT operates a national Helpline for Travellers on 0121 685 8677, Monday to Friday 9.00 am to 5.00 pm

CLP’s website is at http://www.communitylawpartnership.co.uk/ where you can find further details on this matter under the News section.