Law Society puts boot into reforms to legal aid for judicial review

Proposed reforms to the availability of legal aid for judicial review “will have a significant chilling effect” and build in an extra, pre-emptive level of protection for public authorities, the Law Society has warned.

In its Transforming Legal Aid consultation, the Ministry of Justice has proposed, amongst a range of measures, that providers should only be paid for work carried out on an application for judicial review – including a request for reconsideration of the application at a hearing, the renewal hearing, or an onward permission appeal to the Court of Appeal – if permission is granted by the court. (Reasonable disbursements would be payable in any event)

Chancery Lane said the ‘chilling effect’ would be felt on applications for permission in cases where a solicitor could not be sure to a very high standard that permission would be granted.

The Law Society argued that public authorities already benefited from both the legal aid merits test and the requirement for permission, and the measure would stop some legitimate claims from ever being brought.

Chancery Lane claimed that the proposal raised an important concern about the rule of law. “Judicial review is a form of redress against unreasonable and unlawful decisions of the State that have a fundamental impact on the applicant's life in relation to issues such as housing, mental health, community care and immigration,” its response said.

“It is appropriate to have means of filtering out frivolous challenges. But when the State introduces protections for itself against the bringing of legitimate challenges to its decisions, this undermines the protection that all citizens in a democracy should have from State abuses of power.”

The Law Society said that the proposed change engaged Article 6 of the European Convention on Human Rights and Article 47 of the EU Charter of Fundamental Rights. “Because of the chilling effect of the proposals and the extra, unwarranted, protection it provides to public authorities, the denial of proper legal aid funding may mean that there is no effective access to justice in these circumstances.”

It added that particular issues might also arise in relation to environmental cases under the Aarhus Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters, which has been incorporated into EU law.

The Law Society described the statistics provided by the MoJ to justify the measure as “problematic as they are incomplete and do not indicate that there is a major problem with unmeritorious cases that needs to be resolved”.

More analysis of the figures was required in order for any respondent to the consultation to be able to understand the true current position, the nature of the problem the Government was seeking to address, and the likely impact of the proposal, it argued.

In other points, the Law Society said claimants' representatives could more frequently seek to persuade the judge to deal with the matter as a two-stage hearing, “thus potentially increasing the overall cost of the case for the parties and the court”. An increase in judicial review applications by litigants in person was likely as well.

The response described as “unwarranted” the underlying assumption that a solicitor could predict with a degree of certainty whether permission would be granted.

Instead, it argued that the outcome of judicial review cases was “notoriously difficult to predict”, for two reasons. “First, they often deal with very specific sets of circumstances, so that precedent is of little assistance in predicting the outcome. Secondly, the grant rate for permission varies considerably between different judges. It is often said, only partly in jest, that a lawyer can predict the outcome once they know the identity of the judge hearing the application.”

The Law Society said for the sake of the “relatively small” £1m saving per annum from this measure identified in the consultation, the reduction in access to justice for challenging decisions of the state could not be justified.

“It is entirely feasible that these savings will in any event be negated because of the disincentive to accept a settlement without a costs order, and the impact of increased numbers of litigants in person,” it argued.

In the response Chancery Lane said consideration should be given to an alternative to the current proposal, namely a system where solicitors’ costs would be paid unless the judge certified at the permission stage that the application for permission was wholly without merit.

“This would provide more certainty of funding for a greater number of cases whilst keeping a check on the less meritorious applications that have not been filtered out by the legal aid application process,” it suggested.

When it announced the proposals in April, the MoJ argued that it was appropriate for all the financial risk of the permission application to rest with the provider “as the provider is in the best position to know the strength of their client’s case and the likelihood of it being granted permission”.

No exception is to be made where permission is refused, even if the provider insisted that the case was in any event of substantive benefit.

Other key features of the proposals put forward by the MoJ in the consultation included:

• Applicants having to satisfy a two-limbed residence test in order for civil legal aid to be available under the England and Wales scheme;
• An amendment to the civil merits test to prevent the funding of any cases with less than a 50% chance of success. This would involve abolition of the ‘borderline’ prospects of success category;
• A 10% reduction in solicitor representation fees in family public law cases;
• A 20% reduction in expert fees in civil, family and criminal proceedings;
• Alignment of the fees for barristers and other advocates in non-family cases;
• Removal of the 35% uplift in provider legal aid fees in immigration and asylum appeals.

The Law Society said it was strongly opposed to the introduction of a residence test for a number of reasons.

These included: the lack of an evidence base; insufficient consideration being given to the nature of the clients who will fail the test; the proposal nullifying concessions made by ministers to secure passage of the Legal Aid, Sentencing and Punishment of Offenders Act; and the addition of “substantial delay and cost to the system”.

Chancery Lane added: “Moreover, we believe that the proposal amounts to unlawful discrimination on grounds of nationality, and that there are other potential legal barriers to the introduction of such a test.”

On ‘borderline’ cases, it argued that predicting case outcomes was not an exact science. “It can be difficult in public law cases and test cases where often the prospects of success can only be assessed as borderline due to the uncertainty in the law the case is intended to clarify.”

The Law Society also rejected the 10% reduction in the public family law representation fee, arguing that the MoJ’s reasoning was flawed and in real terms fees in the sector were considerably lower than they were in 2000.

“It is said that the amount of work to be undertaken in care cases will be reduced because of the new 26-week deadline and the reduction in the use of experts,” the response said.

“There has been no analysis to demonstrate that the amount of work will decrease. The reality is likely to be that the solicitor will have to do a similar amount of work but within a reduced time, ie they will simply have to work more quickly.”

Chancery Lane argued that a suggestion in the consultation paper that solicitors might ‘overwork’ cases in order to escape the fixed fee was “wholly unjustified” and offensive both to solicitors and the staff of the Legal Aid Agency.

The measures in Transforming Legal Aid – including the controversial plan to introduce price competitive tendering in criminal legal aid – are expected as a package to save £220m by 2018/19.

Justice Secretary Chris Grayling said in April that the reforms were necessary to prevent the use of legal aid to fund weak judicial reviews that are found by the courts to be unarguable.

Last week 90 Queen’s Counsel signed a letter to the Daily Telegraph urging the Government to withdraw its “unjust” proposals to limit legal aid for judicial review.

The silks said they were “gravely concerned that practical access to judicial review is now under threat”.

The Law Society’s full response can be accessed here.

Philip Hoult