Circuit judges attack cuts to judicial review and prison law

The Council of Her Majesty's Circuit Judges is strongly opposed to some of the government's key civil legal aid cuts, it has emerged today.

The council's response to the MoJ's 'Transforming Legal Aid' consultation paper was published only a day after the justice secretary announced that he was reconsidering plans for price-competitive tendering in criminal legal aid.

However Chris Grayling made only one concession on his plans for further cuts in civil legal aid at the justice select committee. He exempted babies less than 12 months old from the new residence test, while strongly defending cuts to prison law and judicial review.

The circuit judges said limiting legal aid to successful legal aid applicants, would "unduly restrict access to justice" for those seeking to challenge unlawful administrative decisions.

"The consequences of transferring the financial risk of the permission process to legal advisers will inevitably mean that claimants with properly arguable claims find it impossible to find representatives prepared to take on their cases," they said.

The judges said that claims had to be started within strict time limits and it was more than likely that claimants would miss them if they had to "shop around for a limited number of solicitors".

They warned that there was a danger that claims which did not need to be the subject of a review would be started by litigants in person, wasting valuable judge time.

"This proposal may, therefore, be a false economy."

The circuit judges called on the MoJ to remove its prison law cuts completely from the main legal aid reform programme, and deal with the issue in a separate consultation.

They said that suggesting that the existing complaints system was a "universal panacea" ignored the reality that many prisoners had mental health problems, were foreign nationals or had a learning disability.

The council also warned that the removal of legal aid for 'borderline' civil legal aid cases would result in a "denial of access to justice for a number of disadvantaged groups", including child abuse victims in care homes.

In a separate response to 'Transforming Legal Aid' released today, the Judicial Executive Board (JEB), a group of ten of the most senior judges including the Lord Chief Justice and Master of the Rolls, suggested that only those whose applications for judicial review were certified as being "totally without merit" should not be able to recover their costs through legal aid.

On prison law, the JEB said it generally accepted the MoJ proposals, as long as categorisation and licence condition reviews continued to be eligible for legal aid.

They said the government should allow more time for the impact of the stricter civil merits test to be evaluated before removing legal aid for borderline cases.