15.05.2014 – It used to be the case that legal aid lawyers representing individuals in judicial review claims would be paid for their work whatever the outcome of the litigation. However, since 22 April 2014 and the coming into force of the Civil Legal Aid (Remuneration) (Amendment) (No. 3) Regulations 2014 lawyers will only be guaranteed payment for their work if permission is granted by the court to proceed. Last week Lord Pannick tabled a Motion of Regret in the House of Lords, a parliamentary cry of despair. He neatly summarised the issue thus:

“… the changes which this Lord Chancellor is imposing are far more damaging than any disease which they purport to treat… Judicial review, unlike almost all other forms of legal proceedings, can be commenced only with the permission of a judge. These new regulations, which came into force on 22 April, make the following change. The Lord Chancellor must not pay legal aid fees unless the court gives permission to bring judicial review proceedings or, if the court neither refuses nor grants permission, the Lord Chancellor thinks it reasonable to pay legal aid remuneration.”

He continued:

“The problem is that often the court does not grant permission to bring a judicial review for reasons other than the weakness of the claim. The filing of a judicial review claim concentrates the mind of the public authority, which often responds to the bringing of the claim by reviewing the impugned decision and by giving the litigant what he or she seeks: namely, recognition that an error was made or fresh consideration of the matter. Therefore, by the time the judge looks at the application, it is unnecessary, and may be inappropriate, for the case to continue.

“These regulations wrongly assume that cases in which permission to bring judicial review is not granted are unmeritorious. Often the opposite is true. It is precisely because a claim has substantial merit that the public authority speedily addresses the grievance. The problem is that, if lawyers know that they have no right to be paid in such cases, even at the low-scandalously low-rates currently thought acceptable by the Lord Chancellor, the inevitable result will be that clients with a strong claim will find it much more difficult to find competent representation.”

Lord Lester of Herne Hill concentrated his fire on the Lord Chancellor and Justice Secretary Chris Grayling:

“…the present Lord Chancellor is in a class of his own…I do not think he understands the rule of law. … His legacy, I am sorry to say, is going to be bleak. People will look back on this period and the coalition Government and they will say with all the high statements made by both parties to the coalition about the rule of law-and for that matter the Opposition as well-extreme damage has been done to it.

“The present Minister of Justice thinks that judicial review is being abused by a lot of left-wing mischievous troublemakers who are running free and should somehow be curtailed. There is no basis for that allegation in my experience. …

“It often takes a great deal of skill to draft an application for judicial review. Lawyers have to be persuaded to do so, especially if they are not going to be reasonably paid for their services. Again and again judges will criticise applicants, as they will respondents, if they feel that they are misusing the process. I do not think that it is the business of a Minister to interfere with the discretion of judges in controlling the judicial review that they have developed.”

Lord Lester concluded thus:

“As a loyal supporter of the coalition, I feel very depressed at having to say what I have just said, but I am afraid that I have to say it, and I hope that whoever wins the next election chooses a Lord Chancellor and Minister of Justice who understands, as our Attorney-General now understands, what the rule of law implies.”

Baroness Butler-Sloss who previously sat on the Court of Appeal also contributed to the debate and had some choice words for the Lord Chancellor:

“We now have for the first time a Lord Chancellor who is not a lawyer, who appears not to understand the importance of the judicial and legal systems, and who is either unaware or chooses to be unaware that the administration of justice is one of the pillars of the constitution. He appears not to recognise his special responsibility as Lord Chancellor. He has not listened to the judiciary, particularly the senior judiciary, or to the legal profession, and he has not given sufficient consideration to the implications of these regulations.

“In the year before we celebrate Magna Carta, we might just remember Clause 40:

“To none will we sell, to none will we deny, to none will we delay right or justice”.

That is a hollow phrase today, as many will be denied the right to have an injustice corrected by the courts.”

We wish to associate ourselves with the sentiments expressed during the debate, the full transcript of which can be found here.