In our blog of 24 January, we outlined details of the Government’s consultation on possible changes to the judicial review process and the reasons why we considered that the changes should not be taken forward. A part of the Government’s rationale for bringing forward changes was its perception that weak challenges were being brought forward, leading to unnecessary delay and costs being incurred. It has now – in the “Transforming legal aid” consultation – put forward a further measure to seek to address this and to reduce the number of judicial review challenges that are made.
The Government proposal is that where legal aid has been made available to fund an application for judicial review, the lawyers will only in fact be paid if permission to bring proceedings is granted. The aim of this transfer of financial risk is said to be to encourage the lawyers concerned “to give more careful consideration” to the merits of a case before an application is made. Lawyers are already required to certify the merits of the case before legal aid is granted, but the Government clearly regards this as an inadequate safeguard in view of that fact that a considerable number of such cases fail to obtain permission to proceed. The Government estimates that savings of around £1million will be achieved if its proposal is introduced.
Although there is a certain superficial attraction to this proposal – the lawyers acting for a claimant should have the best view on whether a claim is arguable, which is the test for the grant of permission – there are some real drawbacks. Perhaps the most striking of these is that in practice, whether or not permission is granted to bring judicial review proceedings will be strongly influenced by which Administrative Court judge actually happens considers the case. “Refusal rates” (the percentage of cases considered in which permission is refused) vary very considerably – such statistical evidence as there is suggests that the difference between the “highest” and “lowest” granting judges is in excess of 30% - which means that the lawyers will have to assess the risk without knowing a key piece of information relevant to that assessment. It must be possible that this uncertainty will have not just the intended effect of reducing the number of unarguable cases that are issued, but will more broadly inhibit lawyers from taking on less than clear-cut, but not hopeless cases, with adverse consequences for the poorest claimants being able to achieve access to justice.