MoJ axes legal aid reforms affecting payment for permission in JR cases

The Government has ditched draft legal aid reforms that would have significantly affected payment for permission work in judicial review cases, but has vowed to introduce an alternative to crack down on the funding of weak claims.

In its original Transforming Legal Aid consultation in April, the Ministry of Justice put forward changes that would have seen the financial risk of the judicial review application transferred to the provider.

Providers would only have been 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 was granted by the court. Reasonable disbursements, such as expert fees and court fees, would continue to have been paid.

In June, some 145 Treasury Counsel wrote to the Attorney-General to express concerns about this and other proposals to limit legal aid for judicial review.

A group of Queen’s Counsel – who act both for and against public bodies – meanwhile signed a letter to the Daily Telegraph calling on ministers to withdraw the “unjust” proposals.

In a report, Transforming Legal Aid: Next Steps, published today (5 September), the MoJ said: “For payment for permission work in judicial review cases, in the light of responses to this proposal, we intend to consult further on an alternative option which will achieve our desired aim of preventing legal aid being used to fund weak cases which have little effect other than to cause delay and incur unnecessary cost.”

Further details on this alternative are to be set out shortly in a separate paper.

The Government’s original Transforming Legal Aid consultation generated huge controversy, particularly around its plans to introduce price competitive tendering in relation to criminal legal aid.

The MoJ has now revamped various aspects of the criminal legal aid proposals after reaching an agreement with the Law Society and has launched further consultation on a modified model of procurement for this area.

However, the Ministry said it would press ahead with its original measures in most other areas “subject to no or only limited modification”.

As far as civil legal aid is concerned, the Transforming Legal Aid: Next Steps document said the MoJ:

• Intended to implement without modification the removal of legal aid for borderline cases as part of the civil merits test;
• Would revise the proposed residence test so that children under 12 months of age would not need to meet the requirement for at least 12 months of previous lawful residence. Exceptions will also be included for certain types of case, where the Government accepts that there should be no requirement for an individual to demonstrate a strong connection to the UK;
• Would proceed with reducing the fixed representation fee paid to solicitors in family cases covered by the Care Proceedings Graduated Fee Scheme. It will also harmonise fees paid to self-employed barristers with those paid to other advocates appearing in civil (non-family) proceedings and remove the uplift in the rate paid for immigration and asylum Upper Tribunal cases;
• Would proceed with its reform to expert fees, “subject to retaining the rates payable to experts in those areas where recent increases have been made to address market supply issues”.

The Ministry estimated that the amended package of reforms would still achieve its objective of delivering around £220m a year in savings from 2018/19.

Justice Secretary Chris Grayling added: “I do recognise that a package of changes driven by harsh economic reality is tough, but I cannot change the financial reality I am dealing with.

“Between 2010 and the end of 2016 the Ministry of Justice is required to reduce its budget by around a third. That has meant, and will continue to mean, tough decisions. But this is not something that is being directed at legal aid alone.”

Maura McGowan QC, chairman of the Bar Council, said she was relieved to see that the MoJ had taken on board the importance of retaining client choice in criminal legal aid.

However, she added: “It is deeply regrettable that the Ministry does not appear to have moved on many other areas of justified and evidenced concern.

“It remains the case that cuts to legal aid are the harshest in the public sector. The amount of money which the Ministry of Justice is seeking to save does not justify the consequences of these cuts. It is inevitable that this will impact heavily on the quality of both criminal and civil legal aid. The people who lose out the most are the public who rely on a justice system which operates efficiently in the public interest.”