The Right Hon Dominic Grieve QC MP
London SW1E 6JP
4 June 2013
Re: “Transforming legal aid: delivering a more credible and efficient system” Ministry of Justice consultation, April – June 2013
We are all Treasury Counsel, appointed to act for the Crown or Government Departments, most especially, although not only, in public law cases. We are writing to you in a personal capacity in response to the consultation to express our concern about proposals in the Ministry of Justice consultation paper, “Transforming legal aid”.
The proposals in the consultation paper are wide ranging, but our collective specialism is in the field of public law and judicial review and so our observations are confined to this area. This letter does not attempt to address the detail of the proposals in the Consultation Paper, and the fact that we do not address any specific issue does not mean that we do not have concerns on that issue.
As barristers who regularly act for central government departments in public law cases, we are well aware of the ways in which judicial review claims, some meritorious, and others not, can prove a source of frustration for government. But we have all had experience of cases which have exposed serious errors in government decision making, often in circumstances where officials and Ministers would not, with hindsight, have wished those errors to have gone uncorrected.
More prosaically, but no less importantly, judicial review provides a prompt and efficient remedy for many persons affected by government action in large numbers of cases, often of critical importance to them, which are conceded by public bodies at an early stage, and at little cost either to the public body or the legal aid fund. By ensuring that officials are accountable to the law, judicial review provides a powerful corrective to poor decision making, the importance of which goes well beyond the relatively small number of cases which get near a court.
We consider that the proposals in the Consultation Paper 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.
We make two specific comments.
First, there is a misconception in the Consultation Paper as to the level of certainty which is achievable when advising on the outcome of claims.
When advising government departments in public law cases, as when advising claimants, it is often difficult or impossible to say more than that there is a reasonable defence to a claim but that the outcome is hard to predict. This is so despite the fact that, especially in the early stages, the defendant is likely to have more information to enable it to assess the merits of a claim. Indeed, most of us have had experience of being instructed to defend government decisions despite advising that the prospects of doing so are considerably below 50%. Sometimes we will have been proven wrong. No one has ever suggested that, in such cases, government bodies should be barred from defending a claim for judicial review. To take such an approach would quickly make the work of government impossible. 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. To require this of those acting on legal aid is, in effect, to severely cut their rates.
Since the majority of successful claims are conceded pre-permission, to use permission as the test for whether payment is made may well reduce real rates even further. We are also concerned that the proposal will be counter-productive; there will be many more disputes about pre-permission costs, which will require substantial public money to resolve.
The requirement that a claim can only be funded where it meets a merits test already imposes a significant discipline on claimant lawyers which is not, at least in any formal sense, imposed on defendants to judicial review. The figures quoted at paragraphs 3.65-8 of the Consultation Paper do not suggest that legal aid is being granted in significant numbers of unmeritorious cases, and that is not our experience as Treasury Counsel defending such claims. 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. The same applies to the possibility of funding important, but uncertain, cases. Far from “harmonising” payments to lawyers, the proposals will have the opposite effect. When coupled with significant reductions in rates, we are concerned that the effect will be to make work in this area unviable.
Secondly, we have particular concerns about the proposals to introduce a residence test for civil legal aid. This risks creating an underclass of persons within the UK for whom access to the courts is impossible. Persons in the UK who cannot meet a residence test are subjected to government action which cannot, by definition, be imposed on British citizens. For example, such persons are liable to indefinite administrative immigration detention, are prohibited from working, and have, at best, entitlement to subsistence levels of maintenance well below mainstream benefits. Judicial review is important, not because such individuals have more rights, but because they have fewer. To deny legal aid altogether to such persons, so that even the minimal rights provided to them by the law cannot be enforced, is in our view unconscionable. By the same token, to prevent people bringing legal proceedings who are subject to the actions of the UK acting abroad, often in ways which are alleged to be contrary to the most fundamental human rights, is in our view impossible to reconcile with the rule of law.
For these reasons, we call upon the Government to reconsider the proposals in the Consultation Paper.
Attorney-General’s A Panel
Deok Joo Rhee
Attorney-General’s B Panel
Alex Ruck Keene
Attorney-General’s C Panel
Claire van Overdijk
cc. The Prime Minister
The Deputy Prime Minister
The Secretary of State for the Home Department
The Secretary of State for Justice