Treasury counsel have joined the wave of concern over the government’s legal aid reforms, warning they will ‘undermine the accountability of public bodies’ and create an ‘underclass’ who will be denied access to the courts.
In a letter to the attorney general Dominic Grieve QC, 145 barristers who act for the Crown or government departments expressed their concern over the unfairness of the proposals to restrict public funding for judicial review in the Transforming Legal Aid consultation, which will create an ‘asymmetry’ between the rights of the government and its citizens.
While judicial review claims can be a ‘frustration for government’, they state that the procedure does expose ‘serious errors in government decision-making’.
They say that review provides a ‘prompt and efficient’ remedy for many affected by government action at ‘little cost’ to the public body or the legal aid fund, providing a ‘powerful corrective’ to poor decision-making that has an impact beyond the cases that go to court.
The signatories warn that the proposals will ‘undermine the accountability of public bodies to the detriment of society as a whole and the vulnerable in particular’.
‘Those who are reliant on legal aid are most likely to be at the sharp end of the exercise of government power and are least likely to be able to fund judicial review for themselves, or effectively act in person,’ they say.
The proposals would remove public funding from ‘borderline’ cases where it is unclear whether the case would have a greater than 50% chance of success. Such cases are often test cases, where the law is unclear and requires clarification by the courts.
The letter notes that where the government is advised that the chance of defending a claim is ‘considerably below’ 50%, it is not precluded from defending the claim and its lawyers are still paid.
The proposals limit funding to case that are granted permission, ignoring the fact that many meritorious judicial review cases settle prior to the permission stage – in which case, the claimant’s lawyer would not be paid.
The Treasury counsel point out the potential unfairness, saying that government lawyers do not undertake their work on the basis that they will only be paid if they have accurately predicted the outcome of the litigation.
They suggest that the requirement that a claim can only be funded where it meets a merits test already imposes a significant test for claimant lawyers that is not mirrored by a similar imposition on defendants.
‘To require that even cases which meet a merits test will nevertheless be conducted at risk for a significant part of the proceedings is to create a fundamental asymmetry,’ they say.
Coupled with the reduction in rates, they warn that the changes will make public law an ‘unviable’ area for lawyers to work in.
They also voice concern that the proposed 12-month habitual residence for civil legal aid eligibility risks creating an ‘underclass’ of people for whom access to the courts is ‘impossible’, which they suggest is ‘unconscionable’.
A Ministry of Justice spokesperson said: 'Our proposals would not prevent legal aid being granted for future judicial reviews, but we are concerned that currently legal aid is being used to fund weak JRs, which do not receive a court's permission to proceed, and so have little effect other than to incur unnecessary costs for the taxpayer. We also believe it is right that those being provided with civil legal aid should have a strong connection to this country.'