Legal aid, judicial review and the rule of law

The government’s proposals to make radical changes to the criminal legal aid system have received widespread attention. In particular, the proposal to introduce a system of tendering that would remove client choice has been strongly criticized as striking at the heart of the lawyer-client relationship. It has also been argued that it may amount to a breach of the right to legal representation enshrined in Article 6 ECHR.

Less attention, however, has been devoted to the impact the government’s proposals would have in relation to non-criminal, including public law, matters. In fact, the impact in that area would likely be very significant. In particular, the following aspects of the proposals are worth noting.

First, the Consultation Paper proposes that legal aid should cover work carried out on an application for permission to seek judicial review only if the application is successful. This would act as a disincentive to lawyers considering taking on legal aid cases: because they would have to take on a considerable amount of work at the risk of not being paid, the likelihood is that lawyers would take on only cases that were highly likely to secure permission to proceed to a substantive hearing. More marginal cases might therefore not be litigated. This difficulty would be compounded by the fact that courts’ decisions about permission are unpredictable, meaning that what counts as a marginal case and what is a “dead cert” may be unclear. It would also mean that the substantial number of cases in which permission is denied but which are found to have been of “substantive benefit” to the claimant could no longer be brought.

This proposal is put forward on the assumption that legal aid lawyers are too willing to seek permission to bring judicial review cases: yet there is scant evidence to back up this assertion. Indeed, nearly half of the legally aided judicial review applications that are lodged are not taken as far as the permission stage, which suggests that lawyers are acting responsibly by declining to seek permission where that would not be appropriate. The lack of a clear evidence base capable of justifying the proposals is of a piece with the way in which earlier proposals to reform judicial review were framed by the Ministry of Justice. Indeed, the Public Law Project has now written to the government arguing that the lack of accompanying information means that consultees are being denied a fair opportunity to comment on the proposals, and that the consultation process is therefore being conducted in an unlawful manner.

Second, the Consultation Paper proposes that legal aid should be unavailable to “non-residents”. In the absence of independent financial means, such individuals will therefore be denied any opportunity to challenge the lawfulness of UK government actions that affect them. The unavailability of legal aid will extend both to British nationals who are applying from outside the UK, Crown Dependencies or British Overseas Territories, as well as to non-nationals who are present—but not lawfully so—in the UK. For instance, illegal visa overstayers and failed asylum-seekers would be unable to obtain legal aid to challenge unlawful government action, even if it were wholly unconnected with their immigration or asylum claim. It need hardly be pointed out that this is fundamentally inconsistent with the principle of equality before the law.

Third, significant areas of prison law will be taken out of the legal aid regime. The Consultation Paper proposes that eligibility for legal aid in relation to prison law matters should be restricted, such that legally aided advice and assistance would be unavailable in relation to “treatment matters” and available in relation only to a subset of “sentencing matters”. This means, for instance, that prisoners would be unable to secure legal aid to seek legal redress in relation to bullying, discrimination, the separation of mothers and babies, compassionate release on severe health grounds, prison conditions, segregation and categorization. The Consultation Paper suggests that such matters are insufficiently important to warrant legal aid, and that non-judicial forms of redress, including internal complaints systems and the Prisons and Probation Ombudsman, are sufficient. This misses the point that, as valuable as they are, such mechanisms must be underwritten in a democracy based on the rule of law by the longstop possibility of legally binding adjudication by an independent court. The Consultation Paper says that internal complaints and investigations by the Ombudsman ought to be the “first port of call”. No argument there: but the proposals would make them the only port of call.

I have argued before that the government appears to consider accountability to law to be an unwelcome irritant. The legal aid proposals, so far as they impact upon public law litigation, compound that impression. Withholding funding from a system that exists, in part, to hold the Executive to account must be tempting for any government: but it is a temptation that must be resisted if the rule of law is to exist as more than a merely theoretical construct.