Civil Justice Council becomes latest to question legal aid for JR reforms

The Civil Justice Council has become the latest organisation to voice concern over controversial government reforms to legal aid for judicial review.

In its response to the Transforming Legal Aid consultation, the CJC – a public body that advises the Lord Chancellor, the judiciary and the Civil Procedure Rule committee – said: “It is of course understood that there is an overwhelming financial imperative on the Government to reduce public spending, and that the Spending Review later this month is due to see a further reduction in the Ministry of Justice’s budget for 2015/16.

“Nonetheless, the council is concerned that some of the proposals in this consultation paper would, if implemented, erode important features of the civil justice system, and have an adverse impact on the quality of justice for those members of the public who have no alternative but to count on publicly funded assistance.”

The CJC expressed particular concern at the proposal that 12 months’ lawful residence should be a pre-requisite for publicly funded assistance. It said these concerns “go to the fundamentals of the justice system and the principle of accessibility to the courts to all”.

The response warned that the plan diminished the credibility of the UK’s encouragement of the rule of law elsewhere in the world, “just at a time when that is of considerable national and international importance”.

It argued that a proposal for cases to still be eligible for funding in exceptional circumstances did not offer a sufficient or suitable safety net.

The CJC added that this was an area were enormous care and reflection was needed before a decision was taken.

On the Ministry's proposal that providers would only be paid for work carried out on an application for judicial review if permission was granted, the council said:

• There was an argument that the proposal would have a deterrent effect on cases with little or no merit being brought;
• Cases “totally without merit” are already adequately controlled by the court’s ability to designate them as such;
• The proposal carried the danger that it would act as a barrier to access to justice. “Lawyers and other advice providers will err on the side of caution where the appeal is ambitious but not one with little or no merit – perhaps only bringing cases with a predicted 70/30 or more prospect of success, when the proposal intends to remove funding only where the case fails at 51/49 or less”.

The CJC meanwhile said it did not agree with the proposed removal of legal aid for borderline cases, on the basis that the change affected a relatively small number cases and ones weighted to ‘high priority’ areas of law and public interest cases.

On the planned 20% reduction in fees payable to experts, the council warned that this could have an impact on the number and quality of experts who would be willing to continue providing expert evidence.

It said the concerns were likely to be acute in areas where there were already concerns about the numbers and quality of experts. “It may be that in some fields the rates are too low to make leaving daily practice for uncertain periods of time too uneconomic to continue. This means that ‘professional’ expert witnesses…will become more frequent”.

Finally, the CJC said the measures overall would have a disproportionately adverse effect on groups with protected characteristics as defined in the Equality Act 2010.

The MoJ insists that the reforms are necessary amongst other things to clamp down on weak judicial reviews being brought.

However, the Transforming Legal Aid plans have been sharply criticised by the Law Society, Treasury Counsel and a group of 90 Queen’s Counsel who specialise in cases for and against public bodies.

Philip Hoult