Regulations that would have limited access to judicial review are unlawful, the High Court ruled today.
In Ben Hoare Bell Solicitors, Deighton Pierce Glynn Solicitors, Mackintosh Law, Public Law Solicitors and Shelter v The Lord Chancellor, the claimants challenged the legality of an amendment to the legal aid scheme made by the Civil Legal Aid (Remuneration) (Amendment) (No 3) Regulations, which came into force on 22 April 2014.
Lord Justice Beatson and Mr Justice Ouseley said the amendment introduced what could ‘broadly be described as a “no permission, no fee” arrangement’ for making a legally aided application for judicial review.
Beatson LJ said the amendment was ‘inconsistent’ with the purposes of the Legal Aid, Sentencing and Punishment of Offenders Act 2012. It extended beyond the circumstances ‘which can be seen as rationally connected to the stated purpose given for its introduction’.
According to the judgment, the lord chancellor argued that the legislation entitled him to make providers carry the risk of the costs of making an application where permission was not granted. This would 'incentivise' them to focus more on the proper application of criteria determining whether a case qualified for legal aid.
The lord chancellor maintained his decision to place the risk on providers was justified by the fact that in 2011/12 and 2012/13, excluding cases which settled, permission was refused in about 30% of judicial review cases funded by legal aid where the provider had stated when seeking a legal aid certificate that merits criteria were satisfied.
Beatson LJ said: ‘It is one thing to decide to transfer risk to providers in order to incentivise them. It is another thing to decide to transfer risk to providers in situations in which doing so cannot incentivise them because what has happened to the application for permission and the way it is handled after the case is issued was beyond the control of the provider and the provider can show that this is so.’
The amount of remuneration at risk in scenarios where the defendant withdrew the decision challenged, or where the court ordered an oral hearing of the application depended in an ‘unpredictable way, on the decisions of the court, and is affected by the actions of others, both of which are beyond the solicitor’s control'.
He said discretion given to the lord chancellor by regulation 5A(1)(b), to pay remuneration where he considered it reasonable to do so, did not ‘[cure] the incompatibility’.
However, Beatson LJ and Ouseley J concluded the relationship between the ‘arguability’ test governing the grant and refusal of permission, and the merits criteria, meant the ‘the purpose for which the lord chancellor has acted is, overall, consistent with LASPO... ’.
Nicola Mackintosh QC, one of the claimants who brought the challenge, said: ‘Judicial review is a vital tool to be able to challenge decisions of the state and make public bodies including government accountable. Where public bodies act unjustly and unlawfully, the public should be able to hold them to account.
'Without legal aid for judicial reviews, these cases will never be taken for people who cannot afford to pay, and justice is denied.’
Law Society president Andrew Caplen said: ‘This is a welcome result. Access to justice is the hallmark of a civilised society. We consider that the regulations would have made access to judicial review much more difficult for some of the weakest and most vulnerable in society and potentially made it easier for public bodies to act without due regard to the law.’
The Ministry of Justice said: 'We are clear hardworking taxpayers' money should not be spent on judicial reviews that are not given permission to proceed. We are therefore pleased this judgment confirms the principle of our reform is lawful.'
A spokesperson said the MoJ will now 'carefully consider' the technical aspects raised by the court and consider its next steps.