Update | Judicial review: legal aid cuts

In his seminal lecture on the rule of law delivered at the University of Cambridge in 2006, the late Tom Bingham - Lord Bingham - described as being at the "core of the rule of law" the principle that "ministers and public officers at all levels must exercise the powers conferred on them reasonably, in good faith, for the purpose for which the powers were conferred and without exceeding the limits of such powers."

He went on to note that when the lawfulness of government decisions are challenged in the courts - typically by way of judicial review - and the government is unsuccessful "it is displeased, being driven like every other litigant by a belief in the rightness of its cause but also no doubt by a belief that the public interest is best served by its succeeding". He also observed that "In the past the convention was that ministers, however critical of a judicial decision… forebore from public disparagement of it."

Such restraint has diminished in recent years. Nonetheless, there has been a consensus that, however much government may dislike being subject to judicial scrutiny, it would be unconstitutional to respond by restricting the public's access to judicial review - a consensus that has extended to the provision of legal aid for such claims.

Thus, even when the previous Lord Chancellor, Ken Clarke MP, sought to cut £350m from the civil legal aid budget - through proposals which were implemented in the Legal Aid, Sentencing and Punishment of Offenders Act 2012 - he ruled out the cutting of legal aid in relation to judicial review noting the "very high importance" of "proceedings where litigants seek to ensure that state power is exercised responsibly."

However, before the dust had even settled on the implementation of those £350m cuts, Chris Grayling MP, the former management consultant and first non-lawyer to hold the post of Lord Chancellor, announced further legal aid reform proposals in April 2013 - a date which is significant not only as the date for the implementation of the LASPO cuts, but also as the date on which central government seized full control of the legal aid system following the abolition of the Legal Services Commission.

Mr Grayling's Transforming Legal ?Aid proposals have rightly attracted much criticism for seeking to introduce price-competitive tendering for criminal legal ?aid. Focused on below are the equally damaging proposals to restrict legal aid for judicial review.

Lose no fee, win no fee

The first proposal is that unless there is a positive permission decision there will be no payment out of the legal aid fund to the claimant's lawyers in judicial review cases.

The stated rationale for this is not primarily to further reduce legal aid spending. Instead, the consultation ?paper estimates that only £1m per annum will be saved, a sum that is of little significance in the context of £1.8bn legal aid scheme. It is said that: "legal aid is being used to fund a significant number of weak cases which are found by the court to ?be unarguable."

The difficulty is that what is proposed goes far beyond this stated objective - targeting not only unmeritorious claims in which permission is refused, but also substantial numbers of claims which have been properly brought, including those which are resolved successfully before the court makes a permission decision.

First, the refusal of permission does not necessarily mean that the claim should never have been brought. A claim may appear to have very good prospects when issued, but then, in the period of sometimes several months between the issue of the claim and the court's permission decision, the public body defendant may take a step which weakens the claim (for example, the belated disclosure of documents) or a step may be taken by the defendant or by a third party that renders the claim academic. That such claims may then be refused permission reflects the dynamic context in which many judicial review claims are brought, not that there was a flawed assessment of merits at the point the claim was issued.

That is not to say that weak claims are never brought - in fact, large numbers of weak judicial review claims are issued every year, predominantly in the immigration and asylum field, and predominantly by litigants in person (whose numbers will increase rather than diminish as a result of these proposals). However, there is already a system in place to deal with these claims: a judge will not only refuse permission, but also rule that the claim was "totally without merit" which prevents the renewal of the permission application at an oral hearing. Were the government to propose that there be no legal aid payment in relation to claims judged to be "totally without merit" then few would raise objections to this, but what is being proposed goes far wider than this.

As for claims which are resolved ?before the court reaches a permission decision, the fundamental problem is that, unlike many other forms of civil litigation, costs often do not always follow the event in judicial review.

If a claim is conceded by a defendant ?pre-issue, then there is no scope at all ?for an inter partes costs order (even though judicial review is heavily front-loaded so that substantial amounts of work have to ?be carried out at the pre-issue stage). Further, even if a claim is conceded by the defendant post-issue but pre-permission, an inter partes costs order will not necessarily follow.

Therein lies the problem for lawyers: when would you agree to act in a judicial review claim if there is not only a risk of not being paid if permission is refused, but also a significant risk of not being paid if the defendant concedes the claim before the court makes a permission decision?

The answer for many lawyers will be never (and it is for similar reasons that conditional fee work has never taken off in judicial review). And as for those who would remain willing to undertake such cases, there will be a strong incentive to do as little work as possible until there is a permission decision - an approach that is unlikely to be helpful either to the client or to the court.

Hostile environment

The second proposal is to deny legal aid from anyone without 12-months' lawful residence in the UK - a proposal which applies to legal aid for all civil litigation, but whose effect in relation to judicial review is particularly alarming.

Some light has recently been shed on the genesis of this proposal by Sarah Teather, the Liberal Democrat MP and former Children and Families' Minister. She explained in a recent interview how "on the explicit instructions of the prime minister" a Hostile Environment Working Group was established to come up with new ways of making Britain a nastier place for "unwanted" immigrants.

Out of that group have come the recent announcements on removing access to primary healthcare for migrants, a proposed requirement that landlords conduct immigration checks, and - it would appear - the proposed 12-months' lawful residence rule for legal aid.

Sarah Teather described these proposed restrictions as "unworkable, unjust, and nakedly political". She is absolutely right. In relation to the legal aid residence test, she might also have added a serious infringement of the rule of law.

Indiscriminately removing legal aid ?from a group of people who are amongst the least able to vindicate their rights without legal representation and who frequently end up on the receiving end of unlawful decisions by the state which can have serious and sometime life-threatening consequences, would undoubtedly represent a new ?low point in the evolution of our civil ?justice system.

To illustrate the point I cite one example of the many hundreds of examples which will have been presented to the MOJ in consultation responses: R (BA) v SSHD [2011] EWHC 2748 (Admin), a case concerning the lawfulness of a decision to detain one of the thousands of people held in detention under immigration powers each year - all of whom will be denied legal aid to challenge the lawfulness of their on-going detention under these proposals.

The claimant in BA was psychotic, he had had several prior admissions to mental hospitals, and in immigration detention he was refusing to take food or fluids. He was repeatedly declared unfit for immigration detention on the basis that if he remained in detention he may die, but recommendations for his release were repeatedly overruled by UK Border Agency directors.

Among the disclosure that was eventually extracted by BA's lawyers was an email exchange between two of those directors, described by the trial judge as "chilling", in which their discussion about the fact they were not going to release Mr BA concluded: "...there will be significant press interest if he does subsequently pass away. We have made sure that healthcare are keeping good and accurate details of his care and this record will be available to the PPO should he die."

In the event Mr BA did not die, instead ?he secured legally aided representation ?and was released. However, it is no exaggeration to say that in future, if these proposals go ahead, people like Mr BA will die - and the UK's international reputation for a first class legal system accessible to all will be seriously diminished.

We can only hope that the so-called "Tory attack dog", Chris Grayling's, desire to appease the right-wing of his party is reigned by more moderate voices in the coalition who understand and who retain ?a commitment to the rule of law.