Dining at the Ritz - legal aid cuts threaten justice for "the little man"

By CHRIS JOHNSON

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

• Government changes to legal aid threaten access to justice for "the little man"
• The freedom to seek judicial review will be "no more than the proverbial freedom of the poor man to dine at the Ritz", warns Lord Howarth
• Judicial review cases will not be brought if there is too much risk placed on legal service providers
• Many Gypsies' and Travellers' ability to seek judicial review will be threatened

Judicial Review and Legal Aid

THE Joint Committee on Human Rights (JCHR) published on 30 April 2014 the report on their recent enquiry entitled The Implications for Access to Justice of the Government’s proposals to reform Judicial Review. This report amounted to an indictment of the Government’s proposals on Judicial Review in general. The Committee looked, amongst other things, at the Government’s proposals on the new system for provision of Legal Aid for Judicial Review cases which has now been brought into force by means of the Civil Legal Aid (Remuneration) (Amendment No 3) Regulations 2014. The Regulations provide that Legal Aid practitioners will not be paid for their work on making an application for permission in a Judicial Review case, where that application has been issued, unless (i) permission is given by the Court or (ii) the case concludes before a permission decision is made, costs are not paid by the other side and the Lord Chancellor (in practice the Legal Aid Agency) considers that it is reasonable to pay, taking into account the circumstances of the case (criteria are provided).

The Report states:-

65. The House of Lords Secondary Legislation Scrutiny Committee has drawn the regulations to the attention of the House of Lords on grounds of their legal importance and public policy interests. In a highly critical Report, that Committee was particularly concerned about the uncertainty caused by the Regulations amongst legal aid providers as to whether they will get paid for work they do in the very sensitive area of judicial review which, the Committee noted, plays a significant role in holding the Executive to account…

….

Chilling Effect on Legal Services Providers

75. We received a good deal of evidence to the effect that the Government’s proposed reform will lead to many providers of legal services not taking the risk of taking on judicial review cases….

76. In our view, the reform pushes too much risk onto providers, and creates too much uncertainty about the degree of such risk, causing a chilling effect on providers which will have a significant impact on access to justice because meritorious judicial review cases will not be brought.

Evidence of number of weak claims

The premise of this particular proposal is that currently the taxpayer is “paying for a significant number of weak judicial review cases which issued but are not granted permission by the Court”. However, the Ministry of Justice has not produced the evidence to substantiate this claim. It relies on the fact that in 2012-2013, 751 legally aided judicial review cases were not granted permission. It invites Parliament to infer from this figure that a significant number of legally aided judicial review cases are brought every year which are weak or unmeritorious. However, such an inference cannot reliably be made without a more detailed breakdown of this figure. While this number will include some cases which will lack in merit and should never have been brought, it will also include meritorious cases which settled before permission was granted, and cases in which permission was refused but it was perfectly justifiable for the proceedings to be brought.

78. As the Secondary Legislation Scrutiny Committee observe, the Ministry of Justice does not offer an estimate of how much public money the proposal will save, and this is because it does not have clear evidence about the scale of the problem which the measure is designed to address.

79. We do not consider that the proposal to make payment for pre-permission work in Judicial Review cases conditional on permission being granted, subject to a discretion in the Legal Aid Agency, is justified by the evidence. In our view, for the reasons we have explained above, it constitutes a potentially serious interference with access to justice and, as such, it requires weighty evidence in order to demonstrate the necessity for it – evidence which is currently lacking.

Secondary or Primary Legislation?

80. We also regret the fact that the Government has chosen to bring forward by a negative resolution statutory instrument a measure with such potentially significant implications for effective Access to Justice. As the explanatory Memorandum accompanying the Regulations Report records, since the instrument is subject to the negative resolution procedure and does not amend primary legislation, no statement of compatibility with the European Convention on Human Rights is required….

81. In our view, the significance of the measure’s implications for the right of effective access to court is such that it should have been brought forward in primary legislation, to give both Houses an opportunity to scrutinise and debate the measure in full and to amend it if necessary. The Government could have given both Houses Parliament the opportunity to do so by including a provision expressly authorising the change in the Criminal Justice and Courts Bill which is currently before Parliament, Part 4 of which contains some other significant proposals for reforming judicial review.

Recommendation

82. In view of the unusual level of concern about the substance of the proposal and the critical report of the Secondary Legislation Scrutiny Committee, we recommend that the Government withdraw the regulations it has laid to give effect to its proposal, and introduce instead an amendment to the Criminal Justice and Courts Bill to provide Parliament a proper opportunity to consider and debate in detail this controversial measure with such serious implications for effective access to the courts to hold the Government to account.

There was a motion of regret laid in the House of Lords by Lord Pannick which led to a debate on 7 May 2014. All of the peers who spoke in the debate including one Conservative peer and two Liberal Democrat peers were utterly opposed to the Judicial Review reforms and some of the speeches were extremely inspiring. The only person who spoke in favour of the reforms was the Government Minister, Lord Faulks, who responded to the motion of regret! To take just one example from the speeches, here is an extract from the speech of Lord Howarth:-

There are constitutional principles at stake in these regulations of bedrock importance: the principle that effective remedy should be available against arbitrary government and the principle that there should be equality under the law. Indeed, it is the rule of law itself which is in question. The law should be for the convenience of the people and not their governors. It is essential, therefore, that remedy should be available that is practical for an aggrieved citizen to seek, and that is available regardless of his personal means, against a public body that conducts itself in a manner that is unlawful, procedurally incorrect, incompetent, oppressive or unreasonable. If judicial review is not available to enable a challenge to wrongful decisions by the state or its agencies, we move away from a liberal constitution and towards executive absolutism.

 

The Ritz: a nice place to eat, if you can afford it. Image: Wikimedia Commons

 

Lord Howarth continued: If it is unsure that legal aid will be available for the preparation of meritorious cases, then the freedom to seek judicial review is no more than the proverbial freedom of the poor man to dine at the Ritz. If a significant number of applications will not, under these regulations, be able to proceed, we lose important opportunities for the clarification of the law and for the improvement of public administration that the pressure of judicial review brings about…

Nor has the department been able to make clear how the payment system will work. Reasonably enough, if solicitors and advocates cannot foresee with any confidence that they will be paid, they will not be willing to take on cases. This is a shoddy and improper way in which to legislate. I also believe that the generality of citizens of this country, if apprised of the significance of the issues at stake, will be more than happy to pay whatever taxes it takes to pay for a proper system of judicial review.

Why, then, have the Government brought in these regulations? Ministers want to flick away a nuisance – to flick away irritants and inconveniences. They want to reduce the scope of those who presume to seek to frustrate executive power. The Lord Chancellor, Mr Grayling, wrote an article in the Daily Telegraph recently in which he made it clear that he finds the activities of pressure groups tiresome, and in particular regards their propensity to seek judicial review as an abuse of the system. We heard the noble Baroness, Lady Campbell of Surbiton, describe the significance of judicial review in her own tireless campaigning for the rights of disabled people. If the Lord Chancellor finds that tiresome, the rest of us find it entirely admirable. We are grateful to her and to the legal system that has permitted her and others who campaign as she does to achieve the advances in justice and in our society that have come about….

The Lord Chancellor is not a judge but a politician, and a famously combative one. He is a politician to the tips of his knuckledusters. It will be difficult for those who have the responsibility of administering the Legal Aid Agency to proceed with the scrupulous impartiality which I do not at all doubt they want to use as they go about their work. In the nature of their accountability, they cannot ignore the strongly held and assertively articulated views of the Lord Chancellor on the rights and wrongs of certain sorts of application for judicial review.

We cannot, therefore, be confident that an application that is just and in the public interest, but which may be politically inconvenient, would surely receive legal aid. The coalition parties profess to believe in freedom, but in this regard freedom is much safer in the hands of judges, who we know are politically neutral. Let them act as the filter and determine whether a case is totally without merit or meritorious. Let the judges do that, not politicians….

Now, through these regulations, [the Government] seek to curtail the freedom of the little man to have his remedy against the abuse of state power. This is executive arrogance and bullying.

There should be no financial impediment to judicial review in suitable cases. The system that we have had has done much to mitigate bad government. These regulations are illiberal and indefensible.

CLP are seeking to take forward a challenge on behalf of a client and we understand other organisations are also looking to challenge these regulations which we would certainly agree with Lord Howarth are “illiberal and indefensible”.

The full debate can be found online here.

Postscript:- in response to criticisms from the Secondary Legislation Scrutiny Committee, the Legal Aid Minister, Shailesh Vara MP has written to Lord Goodlad, the Chair of the Committee by letter of 30 April 2014 confirming that guidance will be produced by the Ministry of Justice with regard to payment for interim relief applications. The fact that the MoJ now accept that guidance is required indicates the confusion both in the consultation paper and in the Regulations with regard to the question of interim relief and payment for such matters.

This is an article from the May edition of the TAT News E Bulletin which is available on CLP’s website here.