The much-criticised Legal Aid Sentencing and Punishment of Offenders Act 2012 came into force on 1 April 2013. LASPO was devised in an effort to cut the £2bn annual legal aid bill by £350m a year, through wide sweeping and substantial cuts to the provision of civil legal aid in England and Wales. However, as Resolution, the national association of family lawyers, notes, the true cost of these reforms are that they ‘reduce access to justice for the most vulnerable’.
Some of the most disadvantaged members of society no longer receive legal aid for essential areas of law such as private family law, including divorce and children custody battles, immigration cases where the person is not detained, most employment law and education cases, personal injury cases, most clinical negligence cases, debt matters, welfare benefit cases which do not reach the higher courts, and housing law where someone’s home or health is not at immediate risk.
Judicial review
Against this backdrop of sweeping cuts, the government now also plans on reducing the legal aid available for judicial review challenges. Judicial review is a legal process which provides a critical check on the power of the state, enabling individuals to challenge the decisions of public bodies to ensure that they are lawful. With the government intent on implementing controversial measures, such as the Welfare Reform Act 2012 and the much-criticised ‘bedroom tax’, which impact directly on vulnerable individuals’ lives and access to welfare support, judicial review is crucially important to ensure access to justice is preserved and that the interests of citizens in this country are protected. As Lord Neuberger, president of the supreme court, states ‘one must be very careful about any proposals whose aim is to cut down the right to judicial review’.
Initial proposals
In December 2012, the Ministry of Justice launched its first consultation paper on its proposed reforms to judicial review. The paper states: ‘the judicial review process may in some cases be subject to abuses … given the significant growth in its use but the small proportion of cases that stand any reasonable prospect of success.’ The government’s changes aim to ‘tackle delays and reduce the burden of judicial review by filtering out weak, frivolous and unmeritorious cases at an early stage’.
There was a widespread outcry to the government’s proposed reforms. As the Law Society states, the total number of judicial review cases submitted and cases heard remains comparatively small for a jurisdiction the size of England and Wales. The Public Law Project says in its attempt to portray the number of judicial review claims as spiralling out of control, the Ministry of Justice’s use of figures is, at best, selective. The government’s adopted reforms were published in April 2013 and included introducing new fees for oral permission hearings and removing the right to a hearing altogether if the case has already been judged as totally without merit on the papers. These measures serve to make it more difficult and expensive for members to bring a claim for judicial review.
Further proposals
Only a few months later, and without time to assess the impact of the initial set of reforms, the government’s second proposed set of reforms was published in September 2013. The consultation period ends at midnight on 1 November 2013. Chris Grayling in the Daily Mail justified these further proposals, claiming that campaigners ‘articulate a leftwing vision which is neither affordable nor deliverable’ and use judicial review as part of their campaigning tactics. In reality only a very small proportion of judicial review cases per year are lodged by NGOs or charities. These overtly public and headline-grabbing outbursts disguise the true effect of the proposed reforms, to reduce the ability of members of the public to challenge the decisions and actions of public bodies.
In the government’s proposals, legal aid will only be granted to individuals seeking to challenge the unlawful decision of a public body if they obtain the permission of the court to proceed. In practice, this means lawyers will only receive legal aid payment for their work on the preparation of a judicial review if it obtains permission, meaning that many meritorious borderline cases will not be taken on because of the financial risk involved to lawyers if permission is not granted. As the Law Society states, the legal profession should not ‘be expected to underwrite members of the public seeking redress for faulty decision-making by public bodies’.
These individuals will now either represent themselves, resulting in a surge in the already growing number of individuals representing themselves at court, and as the Law Society states, ‘inflating costs … in other parts of the legal system’ contrary to the government’s aims to cut spending; or will rely on overstretched and underfunded legal advice charities. Particularly in these times of economic hardship, there is an ever increasing demand from disadvantaged individuals who desperately require, but cannot afford to pay for, legal assistance. The government’s proposals mean that access to judicial review for most members of the public will no longer be available and will tip the balance in favour of defendant public bodies.
Why?
There will be no saving to the Treasury with the cuts that are proposed. It terms of housing, there will simply be a cost-shifting exercise affecting the court system and welfare services as families try desperately to save their homes. So why is the government taking this course of action? It is using the economic downturn to implement a long-held political view to stop vulnerable individuals being able to challenge the decisions of public bodies, the philosophy being that those who are poor should be grateful for what they get. True justice in a democracy is when the vulnerable can hold the strong to account. Let’s not throw away in an instant what’s taken centuries to achieve.
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Daniel Fitzpatrick is a partner at Hodge Jones & Allen law firm specialising in property law, and he sits on the Housing Law Committee of the Law Society. He is also a former Labour councillor in the London borough of Lambeth
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Photo: Steve Calcott