Legal aid, judicial review permission applications, and the Daily Mail: setting the record straight

According to an article published on the Daily Mail website today:

Legally-aided lawyers are pocketing millions by flooding the courts with “meritless” immigration and asylum appeals. The number of review applications has soared to nearly 10,000 a year but nearly nine in ten are thrown out at the first stage.

This statement (which refers to judicial review, not appeal, in spite of the reference to “appeals”) is highly misleading. The actual position in 2011 was as follows:

• 11,359 applications for judicial review were lodged
• 4,828 (43%) of those applications were terminated prior to permission being sought, meaning that permission was sought in only 6,531 (57%)
• Permission was granted in 1,268 cases: i.e. 19% of the cases in which permission was sought, or 11% of the cases in which applications were lodged.
• The figures for asylum and immigration judicial reviews are different, since they are a subset of the total. 8,711 applications were lodged in 2011; permission was sought in 53% and granted in 14% of those in which it was sought (7% of the total).

The 11% figure – i.e. the success rate judged against all applications – is presumably the basis of the Mail’s “nine in ten” failure rate. But it is misleading for three reasons. First, it understates the success rate by including cases in which permission was never actually sought. (And the fact that permission is never sought in some cases is generally regarded as a good thing: for one thing, it suggests that earlier interaction between parties helps to secure a non-litigious resolution.) Second, the implication is that cases in which permission is refused are “meritless”. In fact, permission may be denied for a variety of reasons, including in relation to cases that are far from “meritless”. And, third, the Mail’s statement may be taken to mean that permission is denied in “nine out of ten” legally-aided judicial review cases.

However, in its response to the legal consultation paper, the Bingham Centre for the Rule of Law analysed the relative permission rates in legally-aided and non-legally-aided cases (using 2011-12 figures for the former category). We found that in legally-aided cases, permission is sought more rarely (in 44% of cases, against 65% of non-legally-aided applications). We also found that the success rate is higher. Permission was granted in 48% of legally-aided cases in which permission was sought (or 21% of cases in which an application was lodged). When legally-aided and non-legally-aided cases are compared, it turns out that a legally-aided application is over five times more likely to receive permission than an application which is not legally-aided.

In our response, we concluded (on this point) that:

Put simply, there is nothing to suggest legally aided judicial review claims are pursued in a reckless way that results in a relatively high number of “weak” cases. On the contrary, there is everything to suggest that legally aided cases appear to be handled far more cautiously than those which are unfunded, and lawyers in legally-aided applications are far more likely only to pursue cases with merit. Of course, it would be helpful to know more about the claims that are not legally-aided. In particular, to what extent does representation make a difference to claims? It would be helpful to know the comparative success rates of oral as against paper permissions for legally aided and non legally aided applications. It would be helpful to know comparative costs across different categories of legally aided judicial review claims. Certainly, before any reforms proceed, there needs to be an evidence base that underpins them. The evidence that has so far been made available provides little, if any, support for the proposed reforms. If there is a need for reform it may well be found only in a closer analysis of the pursuit of unarguable claims generally, especially in those which are not legally aided. This is especially so given the aims are to preserve court and judicial time, and drive greater efficiency. However, even taking account of the difficulties in interpreting the data and limited availability of data, it seems an almost inescapable conclusion from the comparative statistics that reducing access to legal aid in this area will have the consequence of reducing access to justice for the poor and disadvantaged in our community without any adequate justification.