Legal aid for JR - take action

We are asking all members to contact their MPs in relation to the cuts to legal aid for judicial review contained in the Civil Legal Aid (Remuneration) (Amendment) (No. 3) Regulations 2014 (which come into force on 22 April 2014) as well as the wider changes to judicial review contained in the Criminal Justice and Courts Bill. Full details of the changes are set out below. A model email for you to personalise and send to your MP - including details of the action that they can take to halt the changes - can be found toward the bottom of this page. And your MPs contact details can be found here. Please do take five minutes of your time to write to your MP: it is essential that MPs resist the threat to the rule of law that is posed by these changes.

**UPDATE** A new motion has been laid against the Regulations that MPs can sign. www.parliament.uk/edm/2013-14/1220

This link is also in our draft email below for you to send your MP.

On 5 February 2014 the Government announced that it would be going ahead with a series of changes to restrict access to judicial review. The changes were originally proposed in November 2013 in the consultation "Judicial review: proposals for further reform".

Why is this important?

Judicial review is the means by which decisions of public bodies may be challenged in the courts on the grounds that the decision is illegal, irrational, procedurally unfair or fails to comply with the Human Rights Act 1998. In broad terms judicial review is the means by which the citizen may hold the state to account for unlawful acts.

This is often the last line of defence for the individual in many areas that are very important, for example, homelessness, deportation, and unlawful detention.

In the words of the Senior Judiciary: 

"Judicial review constitutes a safeguard which is essential for the rule of law: it ensures that public authorities are accountable and act lawfully; it guards against abuses of power and protects the rights of those affected by the exercise of public power; and it polices the parameters of the duties imposed and powers bestowed by Parliament."

The proposals

One of the most important changes will be implemented via secondary legislation: this change cuts legal aid for people seeking judicial review unless the High Court grants them permission. Although there will be some exceptions, lawyers will have to be prepared to do huge amounts of work for no pay at all. The Legal Aid Agency will retain a discretion to make payment in cases where the case settles after issue but before reaching the permission stage.

The statutory instrument introducing these cuts was laid before Parliament on 14 March 2014 and is called The Civil Legal Aid (Remuneration) (Amendment) (No. 3) Regulations 2014 due to be implemented on 22 April 2014.

YLAL believes this will have a chilling effect on access to justice and public interest cases as lawyers may be unable to risk not being paid for thousands of pounds worth of work. 

YLAL is concerned that these changes to legal aid in judicial review cases will not be subject to full scrutiny in Parliament since they are being implemented via secondary legislation. This is despite the fact that Parliament carved out specific exceptions to protect legal aid for judicial review in the Legal Aid, Sentencing and Punishment of Offenders Act 2012. 

There is a real doubt about whether it is right that these Regulations should come into force through a negative statutory instrument given the enormous impact they will have on the ability of people to get legal aid to bring judicial reviews.  YLAL believes these Regulations should have been laid under section 9 of the Legal Aid Sentencing and Punishment of Offenders Act 2012 which requires affirmation from Parliament rather than them becoming law unless anything is done to vote them down. 

The Secondary Legislation Committee will consider these Regulations shortly and will accept evidence up to 10am on Monday 24 March 2014 by email to seclegscrutiny@parliament.uk. You can raise your concerns by emailing them direct.

Other reforms to judicial review will be implemented via primary legislation, namely the Criminal Justice and Courts Bill. This bill had its second reading on Monday 24 February. YLAL is concerned is that this bill will be rushed through Parliament without the chance for proper debate. For example, the second reading was scheduled on the first day back from recess when many MPs may not have been in the chamber.

The Criminal Justice and Courts Bill will introduce several reforms to judicial review:

  • Change to legal test about the likelihood of a different outcome for the applicant in judicial review cases: at the moment the court can refuse to grant a remedy when the decision would inevitably have been the same if it was made lawfully. The bill would lower the threshold. Judges will be required to refuse to grant relief if it was “highly unlikely” the outcome would not have been substantially different if the conduct complained of didn’t occur. This forces the court to shift the focus away from good decision making to second-guessing the outcome, which goes against the purpose of judicial review. 
  • Costs penalties to third party interveners in judicial reviews: there will be a new presumption that anyone intervening in a case must be liable for costs if any party asks the Court to order them to pay. This seems designed to discourage charities and other organisations that intervene in cases in the public interest to assist the court.
  • Changes to orders protecting costs in public interest cases: the Bill raises the bar for the cases that can attract costs protection in the public interest and removes the possibility of any costs protection before the permission stage. Judicial review cases are increasingly front loaded to comply with the rule that they should be settled early if possible but with the consequence that the costs at the initial stage can be very high. It is likely that this rule will prevent public interest challenges from being brought because the costs risk will be too great.

Taken as a whole, these reforms to judicial review represent a serious threat to the rule of law.

Take action!

We will need your help to contact MPs and peers so that these reforms will be properly scrutinised by Parliament.

You can help right now by emailing your MP! We need you to ask your MP to:

  • Register his/her concern by signing up to a motion against the Civil Legal Aid (Remuneration) (Amendment) (No. 3) Regulations 2014 and urging colleagues to do the same. These regulations renege on the Government’s assurance that it would keep legal aid available for urgent injunctions (such as emergency injunctions requiring local authorities to house homeless families) and also remove the right to appeal decisions about legal aid for judicial review to an independent adjudicator. Labour leader Ed Miliband has laid a new EDM asking for the Regulations to be annulled: www.parliament.uk/edm/2013-14/1220;
  • Ensure the Secondary Legislation Scrutiny Committee receives relevant evidence on the Civil Legal Aid (Remuneration) (Amendment) (No. 3) Regulations 2014 before 10 am on Monday 24 March 2014. Ask your MP to make it clear that such a major change should only be implemented through a positive statutory instrument and not a negative one.
  • Lobby the individual members of the Criminal Justice and Courts Bill Committee of your behalf, namely: David Crausby, Roger Gale, David Evennett, Yasmin Qureshi, Julie Hilling, Bob Neill, Julian Huppert, Angie Bray, Andy Slaughter, Guy Opperman, Lee Scott, Jeremy Wright, Ian Paisley Jnr, Shailesh Vara, Stephen Metcalfe, Robert Buckland, Valerie Vaz, Robert Smith, Dan Jarvis, Sarah Champion, and Mike Kane; and
  • Ensure the Joint Committee on Human Rights, and/or the Justice Select Committee considers both the primary and secondary legislation.

It is critical that we start drumming up support from MPs in advance of any vote or debate.

Below is a model email for you to adapt.

 

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Dear [INSERT NAME OF YOUR MP]

I write as your constituent to ask you to take action against the highly damaging reforms to judicial review, which are currently before Parliament. There are two pieces of legislation concerned: (1) The Criminal Justice and Courts Bill and (2) The Civil Legal Aid (Remuneration) (Amendment) (No. 3) Regulations 2014.

The Civil Legal Aid (Remuneration) (Amendment) (No. 3) Regulations 2014.

These Regulations were laid before Parliament on 14 March 2014. They will cut legal aid for people seeking judicial review unless the High Court grants them permission. Although there will be some exceptions, lawyers will have to be prepared to do huge amounts of work for no pay at all. The Legal Aid Agency will retain a discretion to make payment in cases where the case settles after issue but before reaching the permission stage.

These regulations renege on the Government’s assurance that it would keep legal aid available for urgent injunctions (such as emergency injunctions requiring local authorities to house homeless families) and also remove the right to appeal decisions about legal aid for judicial review to an independent adjudicator.

I believe this will have a chilling effect on access to justice and public interest cases as lawyers may be unable to risk not being paid for thousands of pounds worth of work. 

I am concerned that, due to being implemented via secondary legislation, these changes to legal aid in judicial review cases will not be subject to full scrutiny in Parliament. This is despite the fact that Parliament carved out specific exceptions to protect legal aid for judicial review in the Legal Aid, Sentencing and Punishment of Offenders Act 2012. The Civil Legal Aid (Remuneration) (Amendment) (No. 3) Regulations 2014 are due to be implemented on 22 April 2014.

I don’t believe it is right that these Regulations should come into force through a negative statutory instrument given the enormous impact they will have on the ability of people to get legal aid to bring judicial reviews.  I believe these Regulations should have been laid under section 9 of the Legal Aid Sentencing and Punishment of Offenders Act 2012 which requires affirmation from Parliament rather than them becoming law unless anything is done to vote them down. 

An Early Day Motion has been laid asking for the Regulations to be annulled. Please can you sign this and urge other colleagues to do the same.

The Criminal Justice and Courts Bill

This bill is important to me because, if it is passed, it will have a big impact on access to justice and the rule of law. I am concerned it is being rushed through Parliament without the chance for proper debate.

The bill covers a huge range of issues to do with criminal and civil law. If passed it will give wide powers to Government to make a range of significant further changes, including changes restricting judges’ powers, by secondary legislation. The Bill encroaches on the discretion of the courts against the advice of the senior judiciary.

Here are three examples of why this bill has constitutional importance:

  1. Change to legal test about the likelihood of a different outcome for the applicant in judicial review cases: At the moment the court can refuse to grant a remedy when the decision would inevitably have been the same if it was made lawfully. The bill would lower the threshold. Judges will be required to refuse to grant relief if it was “highly unlikely” the outcome would not have been have been substantially different if the conduct complained didn’t occur. This forces the court to shift the focus away from good decision making to second guessing the outcome, which goes against the purpose of judicial review.  It is in the public interest to ensure good decision making by public bodies. 
  1. Costs penalties to third party interveners in judicial reviews: There will be a new presumption that anyone intervening in a case must be liable for costs if any party asks the Court to order them to pay. This seems designed to discourage charities and other organisations that intervene in cases in the public interest to assist the court. In its response to the Government’s consultation on changes to judicial review the senior judiciary warned against this step and highlighted that it is totally unnecessary as it can order costs anyway at the moment if necessary: “The court is already empowered to impose cost orders against third parties. The fact that such orders are rarely made reflects the experience of the court that, not uncommonly, it benefits from hearing from third parties. Caution should be adopted in relation to any change which may discourage interventions which are of benefit to the court.” (Paragraph 37 of the response by the Senior Judiciary to Judicial Review consultation).
  1. Changes to orders protecting costs in public interest cases: The Bill raises the bar for the cases that can attract costs protection in the public interest and remove the possibility of any costs protection before the permission stage – judicial review cases are increasingly front loaded to comply with the rule that they should be settled early if possible but with the consequence that the costs at the initial stage can be very high.  It is likely that this rule will prevent public interest challenges from being brought because the costs risk will be too great. The Bill also contains powers for the Lord Chancellor to change the factors that the Court MUST take into account in granting an application through secondary legislation.

The impact of this bill must also be seen against the backdrop of further cuts to legal aid that I am very worried about. Extensive changes to legal aid mean that many problems that could have been resolved quickly, simply and easily are now impossible to deal with: the research by Young Legal Aid Lawyers, Nowhere Else to Turn, shows how many MPs have found that they already cannot help constituents with unmet legal need.

As a member of Young Legal Aid Lawyers I am concerned that the clients we work for will find it harder to get the help they need.

As my MP, please take the following action on my behalf:

  1. Register your concern by signing the EDM against the Civil Legal Aid (Remuneration) (Amendment) (No. 3) Regulations 2014 and urging colleagues to do the same: www.parliament.uk/edm/2013-14/1220
  1. Lobby the individual members of the Criminal Justice and Courts Bill Committee about the issues I’ve raise above of my behalf, namely: David Crausby, Roger Gale, David Evennett, Yasmin Qureshi, Julie Hilling, Bob Neill, Julian Huppert, Angie Bray, Andy Slaughter, Guy Opperman, Lee Scott, Jeremy Wright, Ian Paisley Jnr, Shailesh Vara, Stephen Metcalfe, Robert Buckland, Valerie Vaz, Robert Smith, Dan Jarvis, Sarah Champion, and Mike Kane; and
  1. Please bring both the primary and secondary legislation to the attention of the Joint Committee on Human Rights, and/or the Justice Select Committee.

Thank you very much for taking the time to read my email. I would be delighted to provide you with any further information to assist you take the above action on my behalf.

Yours sincerely

[YOUR NAME]

[YOUR ADDRESS]

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