What is happening?
The government has published a number of proposals on reforming both criminal and civil legal aid¹. These are currently at the consultation stage but things may move very fast. The consultation closes on 4 June 2013 and the government has indicated that it does not consider that primary legislation is necessary. It hopes to bring in the changes via secondary legislation as early as this autumn.
Is this only about crime?
No. The paper contains some very serious proposals about criminal legal aid, which have received a great deal of publicity. But it also contains some very serious proposals about civil legal aid and, in particular, legal aid for public law or judicial review challenges. This is a much smaller, and more niche, area of work, where citizens challenge public authority decisions that affect them and which they believe to be unlawful. It plays a central role in a democratic society in curbing unlawful or unfair official behaviour, and is essential to the rule of law.
What are the proposals?
The key proposals are (1) restrictions in the scope of legal aid so that it no longer covers advice on certain areas of prison law, and requires prison lawyers to have a general criminal legal aid contract in order to do the work; (2) to prevent people from having legal aid if they are not lawfully resident in the UK, which means physically being here, being lawfully here, and having had leave to be here for at least 12 months; (3) a new rule which prevents lawyers bringing applications for judicial review from being paid unless a court later grants them permission, even if the claim was well founded, but permission is no longer needed – for example because the decision maker has changed its mind. (“Permission” is a stage in judicial review proceedings at which the court decides if a claim to be arguable, and still raises a current issue between the parties); and (4) a rule which will prevent lawyers bringing test cases, which may be very important and affect a lot of people, but in which the prospects are, by definition, uncertain.
The government says that there are two reasons for these proposals: the need to cut costs; and to restore what it describes as “public confidence” in legal aid. This means, it is said, not giving legal aid to people who the public thinks should not have it.
Is the government wrong?
Regarding costs, we think there is very little chance the proposals will save money. They are much more likely to increase costs, although those costs may be transferred elsewhere within the legal system. The government has found it hard to set out what it hopes to save from the proposals, but the figures it has been able to give are £4m for the prison restrictions, £1m for the “no payment without permission” rule, and £1m for the test cases rule. It has not been able to put a figure on what the residence test might save. These are very small sums. We think they will very easily be wiped out by a number of consequences which the government does not understand. These include:
(1) The residence test will have some particularly profound impacts. We deal below with the consequences for cases of people abroad. It will also, however, exclude from legal aid some of
the most vulnerable people in the UK at the moment. These are people, it is true, without leave to be here, but their cases raise very stark issues which they require legal help to solve. They include trafficking victims, families with children, and the mentally ill. The government says that some of these cases will still be granted funding, because they will be deemed “exceptional”. This requires applications for exceptional funding, and will generate judicial reviews arising out of refusals of those funding. All that will take time and cost money.
(2) Making legal aid dependant on a grant of permission will force lawyers to seek permission, and to seek costs from defendants in cases where they do not currently do so. Judicial review is an unusual type of litigation. It is not designed to redress past wrongs, but to put things right for the future. It is forward rather than backward looking, in the sense that even if a public body has acted unlawfully, judicial review will not be granted unless there is still a problem. So, for example, if a disabled person challenges a local authority because it has not lawfully assessed his or her need for support, and – as a result of the challenge, but before the matter reaches court – the authority then agrees to assess, at present the lawyers will simply stop work, having achieved a solution quickly and cheaply. If the proposals go through, the same case would now have to be brought, or a costs order sought from the court, in order for the lawyer to be paid. Many judicial reviews are also much more complex than this simple example, with a great deal of work being done only for the matter to be resolved without the need for proceedings. Research has shown that between 60% and 90% of judicial reviews end this way. But if lawyers can no longer afford to do this, they will have to litigate everything aggressively. It is not yet clear how extensive these perverse incentives will be, and quite how they will play out, but the government does not understand either, and we think it is inevitable that they will cost more than the £1m it is hoped to save.
(3) There will be a loss of expertise as a result of the prison law proposals, and work carried out by non-experts costs more. Prison law is only linked to criminal law in the sense that a person has to be accused or convicted of a crime in order to be in prison. Otherwise prison law is civil public law. Prison law practice has therefore developed as a specialist niche within civil public law practice (itself a niche). The key firms of solicitors doing this work do not have criminal contracts, and could never have one, because they are too small. The proposals will not therefore just cut out advice on certain types of prison case (such as cases about mother and baby units, or prison officers wrongly opening legal correspondence, or the category of prison a person is held in). It will also cut out the expert solicitors. As any judge will say, that will mean bad cases being brought, expensively and inefficiently, clogging up the courts.
(4) The anti-test case provisions will result in a waste of public money. Sometimes judicial review happens because a policy which affects a lot of people is unlawful. (A recent example was nonpayment to pensioners of a small but significant winter fuel payment). The most efficient way to test that policy is a judicial review test case lasting perhaps two days. The prospects of a test case are by definition marginal: it can currently only be brought if it satisfies a “public interest” test. If test cases cannot be funded, the only option will be many individual cases, perhaps in the tribunal system, clogging up that system and causing inconsistent results.
(5) Finally, if the proposals go through as drawn, many specialist public lawyers will go out of business. They will try to survive by making exceptional funding applications, seeking permission early, and seeking costs orders, but those in the field think it is inevitable that many good firms will close. We do not think this is special pleading by lawyers. These changes come on the back of many other cuts in legal aid funding, including very serious ones that were introduced only eight days before these changes were announced.² The legal profession is still reeling from those changes, and legal aid lawyers have very narrow margins. Many, including partners in solicitors’ firms, who take the commercial risk of running these cases, earn less than social workers or senior nurses. If these firms can no longer make their practices work, then some of society’s most vulnerable clients, with the most serious social problems, will not be able to obtain legal advice and will have no option but to seek to represent themselves. Judges estimate that it takes them at least four times as long to deal with a litigant in person as with a represented person. The judges regularly complain about the costs this shifts to the court system. Those costs are significant.
(2) Public confidence
There is no evidence that the public does not have confidence in the scope of the legal aid scheme. The government says that a fair justice system with “fair outcomes” is essential in our democratic society and that legal aid is the “hallmark of a fair, open justice system”. As some of the above shows, however, these proposals seriously undermine that system.
If the small number of specialist solicitors firms close and lawyers go out of business; if cases cannot be brought because a person cannot show UK residence; or if a person (like a prisoner) cannot now have legal aid; then the reality is that there will be no judicial scrutiny of government or other public body decision-making.
This is a real, and very fundamental problem with these proposals. It goes to the heart of the rule of law and access to justice, and we think that it is the real point about public confidence. A fundamental constitutional protection in this country is the ability of a citizen to challenge something a public body is doing, provided only that it raises a current problem and there is no other way of challenging it. Indeed, when a civil servant is appointed, the first thing they are given (along with their keys) is a booklet called “The Judge On Your Shoulder”. This booklet explains judicial review, and reminds civil servants that their decisions may be examined to check that they have not exceeded their powers, that they acted fairly, that they have consulted, and that they took all relevant matters into account. The booklet opens with this:
“We have always kept in mind the purpose and target audience of this book. Its purpose is not “How to survive Judicial Review”, but rather to inform and improve the quality of administrative decision-making – though, if we are successful, that should have the incidental effect of making decisions less vulnerable to Judicial Review. The target audience consists of reasonably well-informed and interested junior administrators whose task is to make decisions affecting members of the public, or to prepare the material to enable others to make such decisions.”
It does not take much to imagine what might happen without such a check, or at least the means of enforcing such a check. It means no incentives on public officials to get decisions right. Government – which includes new public bodies like G4S or Serco – can make bad, unlawful or unfair decisions and there will be no effective remedy. That means: the disabled child left without support; the elderly person mistreated in a care home; a child leaving care left without support for the future; and the trafficked woman left destitute. It means the prisoner, in prison for the first time, perhaps innocent, trying to access support or prison visits, and it means the person who wishes to challenge the police’s failure to investigate a crime against them. The proposals would also exclude cases of people physically abroad, which would shut out the likes of Baha Mousa (murdered on a British army base in Iraq), Binyam Mohamed (imprisoned in Guantanamo Bay), and even the Gurkha litigation (high profile litigation concerning those who served as British troops having been promised settlement in the UK, but then having that withdrawn. Following success in the courts the government climbed down). It would also exclude from legal aid a British citizen wrongly removed from the UK because he or she was thought to be someone else (which has happened).
There are not, fortunately, many cases of this kind each year, but the ones there are, are very important. We think losing the chance of bringing such a case is a very serious prospect, particularly where the costs savings are little or nothing at all. We think that would represent the real loss of public confidence. We think the British public continues to believe in the rule of law.
¹Transforming legal aid: delivering a more credible and efficient system (MOJ 9 April 2013).
²Under the Legal Aid, Sentencing and Punishment of Offenders Act 2012, which did a number of things including cutting legal aid from all immigration work save for asylum and torture/inhuman and degrading treatment cases, and also reducing the availability of no win no fee agreements for human rights and civil liberties cases.