Treasury Counsel voice concern over plans to limit legal aid for judicial review

Some 145 Treasury Counsel – barristers appointed to act for the Crown or Government departments – have written to the Attorney-General to express concern about proposals to limit legal aid for judicial review.

The letter, which can be read in full here on the Legal Aid Changes site (along with the full list of signatories), said: “As barristers who regularly act for central government departments in public law cases, we are well aware of the ways in which judicial review claims, some meritorious, and others not, can prove a source of frustration for government.

“But we have all had experience of cases which have exposed serious errors in government decision making, often in circumstances where officials and Ministers would not, with hindsight, have wished those errors to have gone uncorrected.”

The Treasury Counsel argued that judicial review provided a prompt and efficient remedy for many persons affected by government action in large numbers of cases, “often of critical importance to them”, which were conceded by public bodies at an early stage, and at little cost either to the public body or the legal aid fund.

“By ensuring that officials are accountable to the law, judicial review provides a powerful corrective to poor decision making, the importance of which goes well beyond the relatively small number of cases which get near a court,” the letter said.

The Treasury Counsel claimed that the proposals in the Transforming Legal Aid consultation paper would undermine the accountability of public bodies “to the detriment of society as a whole and the vulnerable in particular”.

The letter added: “Those who are reliant on legal aid are most likely to be at the sharp end of the exercise of government power and are least likely to be able to fund judicial review for themselves, or effectively act in person.”

The signatories made two points in particular. The first was that there was a misconception in the consultation paper as to the level of certainty which was achievable when advising on the outcome of claims.

“When advising government departments in public law cases, as when advising claimants, it is often difficult or impossible to say more than that there is a reasonable defence to a claim but that the outcome is hard to predict,” the letter said.

It added that this was so despite the fact that, especially in the early stages, the defendant was likely to have more information to enable it to assess the merits of a claim.

The Treasury Counsel said: “Indeed, most of us have had experience of being instructed to defend government decisions despite advising that the prospects of doing so are considerably below 50%. Sometimes we will have been proven wrong. No one has ever suggested that, in such cases, government bodies should be barred from defending a claim for judicial review.

“To take such an approach would quickly make the work of government impossible. Government lawyers do not undertake their work on the basis that they will only be paid if they have accurately predicted the outcome of the litigation. To require this of those acting on legal aid is, in effect, to severely cut their rates.”

The letter argued that since the majority of successful claims were conceded pre-permission, to use permission as the test for whether payment is made might reduce real rates even further.

“We are also concerned that the proposal will be counter-productive; there will be many more disputes about pre-permission costs, which will require substantial public money to resolve,” it added.

The Treasury Counsel also pointed out that the requirement that a claim can only be funded where it meets a merits test already imposed a significant discipline on claimant lawyers which was not, “at least in any formal sense”, imposed on defendants to judicial review.

“To require that even cases which meet a merits test will nevertheless be conducted at risk for a significant part of the proceedings is to create a fundamental asymmetry,” the letter said.

The signatories also warned that the same applied to the possibility of funding important, but uncertain, cases. “Far from ‘harmonising’ payments to lawyers, the proposals will have the opposite effect,” they suggested. “When coupled with significant reductions in rates, we are concerned that the effect will be to make work in this area unviable.”

The Treasury Counsel’s second concern related to the proposal to introduce a residence test for civil legal aid.

The barristers warned that this risked creating an underclass of persons within the UK for whom access to the courts was impossible.

“Persons in the UK who cannot meet a residence test are subjected to government action which cannot, by definition, be imposed on British citizens,” the letter said. “For example, such persons are liable to indefinite administrative immigration detention, are prohibited from working, and have, at best, entitlement to subsistence levels of maintenance well below mainstream benefits.”

The Treasury Counsel argued that judicial review was important, not because such individuals had more rights, but because they had fewer.

“To deny legal aid altogether to such persons, so that even the minimal rights provided to them by the law cannot be enforced, is in our view unconscionable. By the same token, to prevent people bringing legal proceedings who are subject to the actions of the UK acting abroad, often in ways which are alleged to be contrary to the most fundamental human rights, is in our view impossible to reconcile with the rule of law.”

The intervention by Treasury Counsel follows the Law Society’s strong criticisms of the Ministry of Justice’s proposals.

Chancery Lane claimed that the reforms would have a “significant chilling effect” and build in an extra, pre-emptive level of protection for public authorities.

A group of 90 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 relation to judicial review.

Justice Secretary Chris Grayling has insisted that the reforms are necessary in part to clamp down on the use of legal aid to fund weak judicial reviews that are found by the courts to be unarguable.