Q5. Do you agree with the proposal that providers should only be paid for work carried out on an application for judicial review, including a request for reconsideration of the application at a hearing, the renewal hearing, or an onward permission appeal to the Court of Appeal, if permission is granted by the Court (but that reasonable disbursements should be payable in any event)? Please give reasons.
Judicial review is a loegal process where the High Court is asked to consider a decision made by a public body in order to ascertain whether or not that decision was lawful and in accordance with the law. If it is not, the court will compel the public authority to make that decision again, following legal and proper processes. The purpose of Judicial Review is to ensure that when a public body is carrying out public functions it discharges its legal duties, does not abuse, misuse or exceed powers and avoid breaching articles of the European Convention on Human Rights. Proceedings are often complex and concern decisions affecting the most vulnerable within our society.
The proposal set out above risks forcing specialist providers out of providing advice and assistance. This will in turn reduce access to justice for some of the most vulnerable within our society.
If providers are not willing, or able to take the risk of taking an application through to the permission stage, they may not be able to continue with this type of work, with the result being that which is set out above, in addition the amount of decisions of challenges to public authorities will be reduced. Some may say that this is a happy consequence for the Government – but it undermines one of the fundamental principles of a democracy governed by the rule of law – the ability of every citizen to hold public officials to account, not just on paper, but in reality.
Judicial Review allows individuals and organisations the chance to challenge poor decisions by public officials, ensuring they are accountable through independent scrutiny by the courts. If the risk of JR is dissipated, there is a risk that public authorities will not continually check and reassure themselves that decision making is lawful.
I have lost count of the number of letters I have written to public authorities (or even just brief emails) setting out a concern with a particular decision they have made impacting on a vulnerable adults life. The majority of these result in the legal team looking at the case and advising their client department to act lawfully and thus helping stop a misuse or abuse of power.
This type of resolution is not uncommon within the realms of public law and one of the reasons ‘legal help’ is so effective. But there are times when the matter doesn’t come under the radar of the busy legal team until much later in the process (at letter before action stage) or, sadly, times when the authority legal team will be supportive of the decision making public authority and rather than advising their client public authority client to change the decision prior to the matter reaching permission stage, that lawyer will push on and ignore all attempts to settle. I am aware that they will often resist JR claims up to the permission stage. If the proposal goes through, it gives even more incentive to the public authority to resist up to the permission stage because they may not get challenged and could get away with making that particular decision. The public authority has nothing to lose – they get their legal fees paid regardless and there will be an inequality of arms if the matter does go to court, because the authority knows that it can re-coup its costs of paying expensive counsel.
Payment is found from the same public purse that funds the providers who are trying desperately to manage the expectations of an often vulnerable and scared individual, who is being presented with an extremely complex issue to provide instructions upon. I say that they are often vulnerable because they are the people who are touched by public authorities most commonly, because they reach out to be protected by the state as they have no where else to turn.
Judicial Review of public law breaches is a good way of pursuing and challenging alleged breaches of European Convention Rights. Forcing more providers away from doing this work will reduce the ability for individuals to effectively access an independent court, which is one of the most fundamental of human rights.
With fewer lawyers taking the risk of pursuing cases on behalf of clients, there will be less choice and more and more litigants in person will be forced through the court system, the High Court, no less. There may be an increase in vexatious litigants and court staff will be bombarded with potentially inadmissible evidence and difficulties in explaining complex procedure to non lawyers. Members of the legal profession undergo training to be able to provide advice and explain complex issues to clients in a way in which they will understand them. Court staff are not allowed to give advice. Increased Court and Judge time will be spent in guiding litigants in person through the system.
The proposals will not stop Judicial Review cases being brought – it will just shift the real onus of managing cases from legally qualified representatives to the Judges and court staff. Litigants in person will still bring cases, especially prisoners who have all the time in the world to bring Judicial Review proceedings regardless of merit. At least with the current system there is a filter. The provider does already risk a degree of non payment on assessment of his bill already and therefore is attuned to justifying work done and cases they intend to bring.
To put a greater financial risk on to the provider is to risk creating a system where the solicitor becomes Judge and the public authority is not held to account. The current system is difficult enough and to place even more pressure on a lawyer (who is already facing severe pressures from simply being a lawyer, let alone a legal aid lawyer) will undermine the rule of law.
In terms of the statistics provided in the consultation paper, I have considered the response to the consultation from Housing Law Practitioners Association and agree with its analysis of the numbers.