Written evidence submitted by the Community Law Partnership (LAI 005)
Introduction
At the outset of this submission we should say that this was drafted prior to the Ministry of Justice publishing the further consultation paper Judicial Review: Proposals for Further Reform. We may ,therefore, be making a supplementary submission to the JCHR once we have fully assessed this latest paper.
The Community Law Partnership (CLP) is a radical, progressive firm of solicitors specialising in the law relating to Housing and Public Law. CLP incorporates the Travellers Advice Team (TAT), a ground-breaking nationwide, 24 hour advice service for Gypsies and Travellers.
In the Ministerial Foreword, to the Ministry of Justice Consultation Paper, Transforming Legal Aid : Delivering a More Credible and Efficient System (TLA), Chris Grayling states:-
Taxpayers’ money has been used to pay for frivolous claims, to foot the legal bills of wealthy criminals, and to cover cases which run on and on racking up large fees for a small number of lawyers, far in excess of what senior public servants are paid.
This quote reveals an issue which runs through the whole of TLA, namely a complete lack of sophisticated, statistical analysis of the various areas covered. Where, for example, is the analysis of “frivolous claims”? Who are the “wealthy criminals” and how will the proposals prevent their legal bills being “footed”? What are the cases which run on and on and who are the lawyers who are paid large sums of money?
TLA states that: “The cost to the system spiralled out of control and it became one of the most costly in the world”. As the UK’s most Senior Judge, Lord Neuberger, the President of the Supreme Court, stated in May 2013:- “[W]hile it is true that Legal Aid is higher per capita in the UK than in almost all other countries in Europe, our Judicial and Court costs are much lower per capita”.
Another example of the lack of sophisticated, statistical analysis is at Chapter 2 (Introduction) where it is stated at para 2.1:-
.........[Legal] aid appears to have been provided for cases that do not justify it and to those who do not need it, which undermines public confidence in the scheme.
Once again where is the evidence and what are those cases? Speaking for ourselves, we do not run cases that do not justify it nor are we interested in wasting our time in doing so. We do not provide assistance to people who do not need it but to people who are desperately in need of it.
This response concentrates on those areas that we are experts in and that we have experience of. Obviously we join with our colleagues in other areas of law, including criminal law, who are, effectively, under unjustified attack by the current Government.
Paying for permission work in Judicial Review cases – an attack on the Rule of Law
A large percentage of the Gypsy and Traveller population who live in caravans have to resort to unauthorised encampments due to the lack of adequate sites. If they are faced with a threat of eviction by a local or public authority where the authority concerned are acting unlawfully (e.g. by failing to follow government guidance) then their only recourse is to seek judicial review of the authority concerned. The same applies to many other areas of work covered by CLP.
The first stage in a judicial review application, once lodged at the court, is that a judge will decide, either on the papers or at an oral hearing, whether the case has sufficient merits and should be given ‘permission’ to proceed to a final hearing. In the consultation paper, the government states, with regard to judicial review applications (at para 3.69):
We propose that providers should only be paid for work carried out on an application for permission (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.
This would mean, in a case where the claimant has Legal Aid, that the lawyer (or provider) would have to run the case to a permission hearing (if it got that far – see further below) without any guarantee that they would ultimately be paid for the work done.
Judicial review challenges to local and public authorities are a cornerstone of a democratic society. They allow individuals to ensure that local and public authorities are prevented from making unlawful decisions or taking unlawful actions. Without such challenges, local and public authorities can act as they please, safe in the knowledge that their actions will not be scrutinized by the Courts.
Michael Fordham QC has stated:
Judicial review is a central control mechanism of administrative law (public law), by which the judiciary discharge the constitutional responsibility of protecting against abuses of power by public authorities. It constitutes a safeguard which is essential to the rule of law: promoting the public interest; policing the parameters and duties imposed by Parliament; guiding public authorities and securing that they act lawfully; ensuring that they are accountable to law and not above it; and protecting the rights and interests of those affected by the exercise of public authority power ( Judicial Review Handbook, 6th ed., Hart 2012 p5).
In R v Ministry of Defence ex p Smith [1996] QB 517 at 556 D-E, Sir Thomas Bingham MR stated:
…the court [has] the constitutional role and duty of ensuring that the rights of citizens are not abused by the unlawful exercise of executive power.
In R v Secretary of State for the Home Department ex p Fire Brigades Union [1995] 2 AC 513 at 567D-568B, Lord Mustill stated:
To avoid a vacuum in which the citizen would be left without protection against a misuse of executive powers the courts have had no option but to occupy the dead ground…
In Roberts v Gwyrfai DC [1899] 2 Ch 608 at 614, Lindley MR stated:
I know of no duty of the Court which it is more important to observe, and no power of the Court which it is more important to enforce, than its power of keeping public bodies within their rights.
In R v Inland Revenue Commissioners ex p National Federation of Self-Employed and Small Businesses Ltd [1982] AC 617 at 641, Lord Diplock referred to the “progress towards a comprehensive system of administrative law” as “having been the greatest achievement of the English courts in my judicial lifetime.”
And now this government intends to put judicial review out of reach of everyone apart from the rich. As explained above, the proposal is that Legal Aid providers will not be paid for work done on a judicial review case unless and until permission is granted.
At para 3.62 of the consultation paper the government state that:
We consider that the appropriate way in which to address this issue is to build into the Civil Legal Aid Scheme a greater incentive for providers to give more careful consideration to the strength of the case before applying for permission for Judicial Review....
What is the evidence that Legal Aid providers are not already doing this? We believe that Legal Aid providers will always give very careful consideration to a matter before they consider lodging a judicial review application. We would question the evidential basis for this assertion. The inference appears to be that practitioners issue judicial review applications frivolously, without having considered the potential merits of such judicial review applications and in apparent contempt of well established funding code guidance as to the merits. This inference borders on the offensive. We assert very forcefully that, in our experience, while it cannot always be clear at the outset, practitioners do give proper and careful consideration to the merits of the case, the prospects of success, the remedy sought and the duty to protect the Legal Aid Fund. It is a balancing act that practitioners are very adept at performing. In addition, there are clear (negative) cost implications of running judicial review applications that have no merit and, as one would expect, such claims are dealt with very robustly by the judiciary.
What is the real evidence? The Public Law Project (PLP) have stated:
On the Today Programme on 23 April 2013, the Lord Chancellor was interviewed by John Humphreys about the Government’s plans to implement changes to judicial review procedure. The interview included the following exchange:
Humphreys: “Why are you doing it [making the changes]?”
The Lord Chancellor: “Well let me give you a raw piece of statistic that will explain the nature of the problem. In 2011, the last year we had figures available, there were 11,359 applications for judicial review. In the end 144 were successful and all of the rest of them tied up government lawyers, local authority lawyers in time, in expense for a huge number of cases of which virtually none were successful. We’re not saying there shouldn’t be judicial review, we’re not saying that members of the public and organisations should not be able to challenge public bodies, but what we’re saying is that we have to raise the bar so that we have fewer cases that have no chance of succeeding.”
A brief look at the official Ministry of Justice statistics (see table 6 of the document headed “Judicial Review Statistics 2007-2011 – tables”) shows that the Lord Chancellor’s reference to only 144 “successful” cases was misconceived. This is of concern, because it suggests that the Government’s recently announced changes to judicial review procedure, and its new proposals for restricting legal aid for judicial review, were based on a misreading of the evidence and/or a misunderstanding of the judicial review process. The Lord Chancellor should, more than anyone, be well aware of the constitutional significance of judicial review, as the means by which Government can be held to account by the courts. Restricting access to judicial review – and interfering with the checks and balances of our unwritten constitution – should not be done on the basis of misleading statistics or in an evidential vacuum.
The 144 figure relied upon by the Lord Chancellor is false because it only measures the number of judicial review cases that succeeded at a full hearing (as opposed to 212 that failed). But PLP’s research suggests that thousands of cases will have settled with a positive outcome for the claimant in 2011:
- after the claim was issued but before the permission application was determined
- after permission was refused on the papers but before the oral renewal was heard
- after permission was granted but before the substantive hearing.
…..Research done by PLP and Essex University confirms practitioners’ experience that settled judicial review cases are settled favourably to the claimant in a substantial proportion of cases. It is therefore clear that a substantial proportion of the missing cases and those recorded as withdrawn will have settled on terms favourable to the claimant.
A careful analysis of the MoJ’s own statistics shows only 515 cases out of the initial 4,074 legally aided cases (i.e. 13%) as having ended at permission without benefit to the client. So as at the end of the permission stage, 87% of the sample of legally aided cases relied upon by the Government had either been settled, had ended following the refusal of permission but with substantive benefit recorded to the client, or had been granted permission.
For a projection of the number of successful cases in 2011, it is worthwhile noting the response to the Lord Chancellor’s statement by PLP’s Research Director, Varda Bondy, and Professor Maurice Sunkin of the University of Essex Unpacking JR Statistics, dated 30 April 2013[1]:
In summary, based on the statistics available for 2011, it can be estimated that claimants will have obtained a benefit (and by implication that their claims had merit) in over 40 per cent of the civil non‐immigration/asylum claims issued in that year. This percentage presents a very different image to that portrayed by the Lord Chancellor when in his radio interview on 23 April 2013 he suggested that less than 1.5 per cent of claimants are successful in judicial review proceedings (144 from 11,359 claims issued). This serious difference points to more than simply a different way of interpreting the statistical evidence. It highlights significant limitations in the official statistics especially for those, including those in government, who need reliable figures on how cases proceed through the system. It is insufficient to rely on statistics that only show how many decisions are taken by judges but do not actually show how individual cases or cohorts of cases progress. This fundamental limitation means that the official statistics provide at best an unreliable evidence base for reform; at worst they are grossly misleading. Either way they do not provide a sound basis for reform nor for public understanding of JR.
The experience at CLP reflects the research carried out by the Public Law Project. In the majority of our cases the local or public authority defendant concedes the matter before the case ever gets to the permission stage. It might be said that, if the local or public authority concede before the permission stage is arrived at, then the claimant will be able to obtain his/her costs in any event. As is effectively accepted within the consultation paper, this is certainly not the case. Often, in our experience, a local authority will concede and withdraw the relevant decision (albeit that it might be suspected that this concession has been made because the original decision was unlawful or completely wrong) without accepting that the claimant’s legal arguments were correct. In those circumstances it may not be possible to obtain a costs award against the local authority. Alternatively a great deal of further work might be required in making submissions to the court on the question of costs and, once again, that extra work may also prove to be fruitless if the decision is made that costs should not be awarded in the claimant’s favour.
The Travellers Advice Team (TAT) was first set up in 1995 and joined CLP when CLP was set up in January 1999. In the wake of the Criminal Justice and Public Order Act 1994, new draconian powers of eviction were introduced against unauthorised Gypsy and Traveller encampments both for local authorities and the Police. Despite Government Guidance, most local authorities at that time failed to carry out proper welfare enquiries before deciding to evict an encampment and failed to have any proper written policies about this issue. TAT carried out a large number of judicial review cases over the years concerning these issues. Jumping ahead to the present day, it is now very rare to come across a local authority that does not at least attempt to carry out welfare enquiries and it is equally rare to come across a local authority that does not have some form of written policy about this issue. This has come about due to local authorities throughout England and Wales being held accountable by means of judicial review. The vast majority of those cases settled very quickly and usually prior to the question of permission having to be dealt with at all.
CLP’s Travellers Advice Team have carried out an analysis of the judicial review cases they have run from the beginning of April 2012 to the end of March 2013. There were 11 cases. Only one of those has so far reached permission stage and permission has been granted. In 4 cases, legal aid was granted, counsel instructed and we were on the verge of lodging the judicial review when the local authority conceded the matter on terms favourable to our client. Obviously there is no method in such cases of getting your costs paid by the other side. In one case the matter was lodged, interim relief was refused and it was then too late to take the matter any further forward – this was, to date, the only unsuccessful case. In one case the matter was lodged and the local authority then conceded on terms favourable to our client. Since this local authority had failed to even respond to our pre-action protocol letter they agreed to pay our costs. Two cases were lodged and then settled on terms favourable to our clients. There was no order for costs but, in both cases, there was a potentially difficult argument about whether the defendant was a public authority or not. Two cases have been lodged and put on hold pending certain matters (and before reaching permission stage). Our prediction at this stage is that both matters look as if they may settle favourably for our clients. We cannot guarantee that costs will be paid by the other side, however. So the tally out of these 11 cases is:
Granted permission 1
Successful and other side to pay costs 1
Successful but no order as to costs 6
Unsuccessful 1
On hold 2
Putting to one side for the moment the two cases that are on hold, 8 out of 9 cases have either been successful or have been granted permission. However we have only been paid our costs in 1 out of those 9 cases (though under the new proposals we would be guaranteed at least legal aid payment in the one case that has been granted permission). So we ( and counsel) would not be paid anything in 7 out of the 9 cases.
Perversely the proposals in this paper will prolong cases because:
There is no demonstration of any understanding of the impact of the availability of judicial review on the administrative performance of public authorities. The vast majority of JR cases do not even proceed to a certificate as they are settled favourably in their early stages. But public bodies would have no incentive to abide by the principles of public law in relation to poor litigants because they would know that the likelihood of proceedings actually being issued would have become minimal. This effect of the proposal is not considered. It is nonsense to say that individuals would be able to bring such cases without the assistance of a lawyer.
Additionally, there is a significant failure in the consultation paper to do any proper analysis of the realities of judicial review:
Concern at the additional costs to the court service caused by an increased number of litigants in person has recently been expressed by the Court of Appeal. In Wright v Michael Wright Supplies Ltd [2013] EWCA Civ 23416, Lord Justice Ward stated, at paragraph 2:
What I find so depressing is that the case highlights the difficulties increasingly encountered by the judiciary at all levels when dealing with litigants in person. Two problems in particular are revealed. The first is how to bring order to the chaos which litigants in person invariably – and wholly understandably – manage to create in putting forward their claims and defences. Judges should not have to micro-manage cases, coaxing and cajoling the parties to focus on the issues that need to be resolved. Judge Thornton did a brilliant job in that regard yet, as this case shows, that can be disproportionately time-consuming. It may be saving the Legal Services Commission which no longer offers legal aid for this kind of litigation but saving expenditure in one public department in this instance simply increases it in the courts. The expense of three judges of the Court of Appeal dealing with this kind of appeal is enormous. The consequences by way of delay of other appeals which need to be heard are unquantifiable. The appeal would certainly never have occurred if the litigants had been represented. With more and more self-represented litigants, this problem is not going to go away. We may have to accept that we live in austere times, but as I come to the end of eighteen years service in this court, I shall not refrain from expressing my conviction that justice will be ill served indeed by this emasculation of legal aid.
Conclusion
If these proposals are brought in then we believe that Legal Aid providers will no longer be willing to take on judicial review cases because they will not be able to risk the fact that the case will be run pro bono without any guarantee of payment. This will lead to situations where people are deported to countries where they will face torture or even death, where homeless people will remain on the streets despite the fact that the local authority are in breach of their duties, where people, such as Gypsies and Travellers, will be evicted despite the fact that the local or public authority are acting unlawfully and where local and public authorities in general will have immunity to act in unlawful ways in the most serious of situations without the individual concerned having recourse to a realistic method of challenging that decision or that action.
Clearly in many of those cases there will be an outright breach of Article 6 of the European Convention. Additionally there are likely to be breaches of many other Articles of the Convention if this provision is brought into force. We suspect that, if this provision is brought into force, then it would be inevitable that there would be a large number of successful applications to the European Court of Human Rights by individuals who were adversely affected by the fact that they had no access to advice and representation when they urgently required it.
8 September 2013
[1] www.publiclawproject.org.uk/documents/UnpackingJRStatistics.pdf