What judicial review is all about
The second issue we focused our meeting with Lord McNally on, in addition to the residence test (see our previous two posts on this blog), was Judicial Review. JR is a unique kind of legal process which allows an affected individual to challenge an unlawful action of a public body, where there is no appeal or other remedy available. Thanks to JR ordinary people can hold public authorities to account for their actions. For example a family can challenge a local authority decision to refuse them emergency accommodation, a young man leaving care can challenge a decision that he no longer needs support, an asylum seeker can challenge the Home Office’s decision that her asylum claim is unfounded.
In its “Transforming legal aid” consultation, the government is proposing that lawyers should only be paid for JR cases that reach the stage where a Judge decides that a case is arguable. This is known as the ‘permission’ stage. Legal aid law firms will therefore have to carry the financial risk of undertaking judicial review cases. If a case reaches the ‘permission’ stage and a Judge says that it is an arguable case, they will be paid for all the work they have done. If, on the other hand, the case concludes before that stage is reached, or if a Judge does not grant permission for the case to go ahead, the firm will not receive any payment at all.
The government claims that these changes are necessary because they are “concerned that legal aid is being used to fund a significant number of weak cases”. The changes are projected to generate savings of £ 1 million.
Fewer weak cases or less state accountability?
At the outset of our meeting we referred Lord McNally to his recent words in response to the debate in the House of Lords in relation to the proposed legal aid changes:
“We recognise JR as an important tool of redress which balances the power of the state and we continue to believe that it is important to make legal aid available for most JR cases”.
We put to him that we believe that far from ensuring that legal aid remains available for most JR cases, the proposals will lead to a reduction in number of JR cases being brought, because legal aid law firms, which tend to work on very tight financial margins, simply will not be able to afford to carry the financial risk. The result is that less people will be able to hold public bodies to account and public bodies will be able to act as they please, safe in knowledge that they cannot be held to account.
Lord McNally was keen to point out that bringing a reduction in number of JR cases overall is in fact “part of our intention”. He said that this particular proposal was his own idea, not Chris Grayling’s. Having noticed a “steep rise” in the number of JR cases in recent years, he asked for a “comb-through”, to make sure the system is “fit for purpose” and that it is not “used or abused by clever lawyers”.
Clearly the government is not only concerned with what it perceives as being a large number of “weak” JR cases. McNally made it clear that he believes JR is being used for purposes it was not “designed for”, and that this is what he is trying to put an end to. The examples he gave were cases where JR is used to challenge the poor administration of government departments. While this will come as no surprise to those in the field who have been following the Ministry of Justice’s ongoing reforms of the way the JR process works, it will to many others, because the Consultation paper makes no mention of its aim to reduce the overall number of JRs at all.
The government’s misleading figures
According to the Consultation, the proposals are all about trying to reduce the number of ‘weak’ JR cases. Transferring the financial risk onto the law firm is supposed to ensure that lawyers assess more carefully whether permission is likely to be granted, so that they no longer take forward weaker cases. In theory this sounds logical. The problem, as we explained to McNally, is that this completely ignores the way in which JR works in practice.
We used data we gathered from a sample of 118 JRs conducted by the Immigration department of Wilson Solicitors to show that the government’s assumption that cases that cases are weaker if permission is not granted is fundamentally incorrect. Our data shows that 48% of cases – almost half – finished before the permission stage was reached because the client and the public body reached an agreement that benefited the client. Basically, the public body accepted it had acted wrongly and made up for its wrongdoing.
Under the government’s proposals none of these cases would be paid for, despite the fact that they had been successful. As McNally himself admitted to us, these cases show that “the system is working”. Yet the government’s Consultation paper does not contain any information on how many cases end in this way. Instead, as the Public Law Project among others have argued, the government’s data is highly misleading.
Putting the state beyond the reach of the law
We cannot help but wonder: are the gaps in the government’s figures not a bit too convenient, given that McNally and Grayling have both admitted that what they are trying to do is to stop JR being used in situations they do not think it should be used? Why does the Consultation paper itself not say that this is what the reforms are intended to achieve? The combination of the government’s misleading figures and its dishonesty as to what these changes are meant to achieve create a strong impression that these reforms are nothing more than a thinly disguised attempt to limit the right of every citizen to ensure that the state is held to account for its actions, and to obtain redress when it has been wronged by a government department. But why shouldn’t a citizen be able to hold the state to account when he or she has suffered as a result of poor administration?
These issues concern us all because they go straight to the heart of the relationship between each citizen and the state, what it means to live in a democratic society, in which there is respect for the rule of law.