Treasury Counsel call on government to reconsider legal aid proposals

The Right Hon Dominic Grieve QC MP

HM Attorney-General

Buckingham Gate

London SW1E 6JP

4 June 2013

Dear Attorney-General,

Re: Transforming legal aid: delivering a more credible and efficient systemMinistry 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 harmonisingpayments 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.

Yours sincerely,

Attorney-Generals A Panel

Andrew Bird

Charles Bourne

Kerry Bretherton

Samantha Broadfoot

Tim Buley

Lisa Busch

Catherine Callaghan

Ben Collins

David Forsdick

Kate Gallafent

Kate Grange

Nicola Greaney

Jeremy Hyam

Ben Jaffey

Brian Kennelly

Daniel Kolinsky

Cathryn McGahey

Jonathan Moffett

Akash Nawbatt

Robert Palmer

Alan Payne

George Peretz

Deok Joo Rhee

Andrew Sharland

Dan Squires

Tom Weisselberg

Gemma White

Attorney-Generals B Panel

Charles Banner

Matthew Barnes

David Blundell

Joanne Clement

James Cornwell

Emma Dixon

Clair Dobbin

Gerry Facenna

Margaret Gray

Mathew Gullick

Sarah Hannett

Ivan Hare

Anneli Howard

John Joliffe

Rupert Jones

Richard Kimblin

Ronit Kreisberger

Ben Lask

Maya Lester

Gwion Lewis

Naomi Ling

Amy Mannion

John McKendrick

Julian Milford

David Mitchell

Katherine Olley

Tamara Oppenheimer

Mathew Purchase

Bilal Rawat

Catherine Rowlands

Alex Ruck Keene

Fiona Scolding

Matthew Slater

Holly Stout

Colin Thomann

Mark Vinall

Victoria Wakefield

Richard Wald

Robert Wastell

Rob Williams

Christiaan Zwart

Attorney-Generals C Panel

Victoria Ailes

Kate Balmer

Alan Bates

David Bedenham

Sasha Blackmore

Edward Brown

Christopher Buttler

Sadiya Choudhury

Caroline Cross

Thomas Cross

Estelle Dehon

Jonathan Dixey

Matthew Donmall

Zachary Douglas

Toby Fisher

Nicholas Gibson

Mary Glass

Elliot Gold

Patrick Halliday

Rob Harland

Cicely Hayward

Tom Hickman

Matthew Hill

Jack Holborn

Robin Hopkins

Laura Johnson

Tristan Jones

Rachel Kamm

Ryan Kohli

Jacqueline Lean

Zoe Leventhal

Jonathan Lewis

Andrea Lindsay-Strugo

Zane Malik

Peter Mant

Richard Moules

Hanif Mussa

Josephine Norris

Cain Ormondroyd

Claire Palmer

Genevieve Parke

Naina Patel

Clare Parry

Michael Paulin

Tom Richards

Amy Rogers

Sarah Sackman

Amy Sander

Iain Steele

Caroline Stone

Christopher Stone

Joanna Torode

Richard Turney

Adam Wagner

Galina Ward

Mark Westmoreland-Smith

Francesca Whitelaw

Sarah Wilkinson

Robert Williams

Georgina Wolfe

Katrina Yates

Regional Panels

Martin Carter

Olivia Chaffin-Laird

Adam Fulwood

Gary Grant

Samuel Green

Kathryn Hayes

Nageena Khalique

Susanna Kitzing

Douglas Leach

James Normington

Alex Offer

Claire van Overdijk

Ian Pennock

Sarah Reid

Nicholas Stonor

Richard Thyne

cc. The Prime Minister

The Deputy Prime Minister

The Secretary of State for the Home Department

The Secretary of State for Justice