On 6 September 2013, Chris Grayling published his response to the legal aid consultation: Transforming Legal Aid: Next Steps. It covers a wide range of topics, and opens some to further consultation. Three will be of particular relevance to our readers.
Residency Test: Secondary legislation due in early 2014 will restrict legal aid to those who have been lawfully present in the UK for the last 12 months. The reform will be tempered by a number of small-scale exceptions, as well as exceptions for cases where the individual is particularly vulnerable or where it relates to the protection of children. The reform is likely to have a large impact on cases brought by those with no recourse to public funds, amongst others.
Payment for permission work: the most serious proposal for public lawyers is the removal from scope of JR work that does not proceed beyond the permission stage. The concern is that the proposal will have a chilling effect on even meritorious claims. The government now intends to consult further on introducing a discretionary payment in certain cases which conclude prior to a permission decision without a costs order or agreement.
Merits test: until now, legal aid has been available for cases with borderline prospects of success and up. The threshold is now being raised to cases with higher than a 50% chance of success. The change will be introduced by secondary legislation in late 2013.
In September 2013, Chris Grayling also published Judicial Review: proposals for further reform, which builds on changes introduced earlier in the year. The new consultation proposes narrowing rules on standing; increasing the court’s discretion to refuse permission for judicial review where a procedural flaw was likely to have made no difference to the outcome of the decision; creating a separate procedure for challenges based on breach of the public sector equality duty; and largely removing legal aid funding for work done at the permission stage.
The consultation is very critical of judicial review generally. It suggests it is often used as a delaying tactic by campaigning groups; that it aims at procedural flaws which would have made no difference to the outcome; and that it gets in the way of economic growth. We suggest this rather misses the point, that judicial review is a vital mechanism precisely intended to ensure due process. It is too important to be limited for the sake of