Response to Ministry of Justice Consultation On
Response to Ministry of Justice Consultation on
Transforming Legal Aid
The Equality and Diversity Forum (EDF) is a network of national organisations committed to equal opportunities, social justice, good community relations, respect for human rights andan end todiscrimination based on age, disability, gender and gender identity, race, religionor belief, and sexual orientation[1]. Further information about our work is available at and a list of our members is attached.
Our members represent some of the most disadvantaged groups of people in the UK and so we will comment on the importance of the legal aid proposals in relation to Judicial Review for our members and their clients and/or beneficiaries.
Question 5 (on page 33 of the consultation paper) reads:
“Do you agree with the proposal that providers should only be paid for work carried out on an application for judicial review, including a request for reconsideration of the application at a hearing, or an onward permission appeal to the Court of Appeal, if permission is granted by the Court (but that reasonable disbursements should be payable in any event)? Please give reasons.”
The EDF strongly disagrees with this proposal as it will weed out the strong cases as much as the weak ones, it will act as a disincentive to early settlement or resolution of cases and will discourage solicitors from taking any judicial review cases on behalf of individuals however strong their case is.
The EDF considers that the remedy of Judicial Review is a vital remedy and one of the most important ways for individual people to holdnational and local public bodies to account for acting lawfully. We note that the Ministry of Justice in its press release for the earlier Consultation on Reforming Judicial Review acknowledged ‘the important role that Judicial Review plays in holding Government and others to account’. The power to judicially review public decisions is an important reserve power enabling citizens to ensure good governance and further constraints on its use should be approached with considerable caution.
If this proposal goes ahead, it will create a situation where individuals will not be able to bring cases challenging the decisions of local authorities or central government because they will not be able to find lawyers willing to take the risk of not getting paid for this work. This will have the result that lawyers will stop doing this type of work and people facing injustice because of public law failings by public bodies will find it increasingly difficult to find anyone to advise them.
It is neither reasonable nor sensible to expect individuals to take judicial review action without legal advice. Litigants acting without advice are more likely to take cases that will not succeed, whatever their intrinsic merits, because the case has not been adequately prepared. They are also more likely to take weak cases which might have been deterred by good legal advice at the outset.
Any lawyer who did bring these challenges to court would have to pursue the court proceedings to make sure they were paid for their work. This would create a perverse incentive for cases to be pursued in court even when the initiation of judicial review is sufficient to persuade a public body to acknowledge its error and reconsider a decision (and there is ample evidence that this happens regularly). Instead of fighting in court about public law failures, lawyers will end up having an incentive to fight cases rather than to reach an early resolution which will waste court time and ultimately cost public funds. We do not believe that this is good value for money nor does it assist the Government’s objective of securing early settlement and preventing litigationwherever possible.
The EDF urges you not to proceed with this proposal.
Equality and Diversity Forum,17 May 2013
Annex 1
Equality and Diversity Forum members
Action on Hearing Loss
Age UK
British Humanist Association
British Institute of Human Rights
Children’s Rights Alliance for England (CRAE)
Citizens Advice
Disability Rights UK
Discrimination Law Association
End Violence Against Women
Equality Challenge Unit
EREN – The English Regions Equality and Human Rights Network
Fawcett Society
Friends, Families and Travellers
Gender Identity Research and Education Society (GIRES)
JUSTICE
Law Centres Federation
Mind
National AIDS Trust
Press for Change
Race on the Agenda (ROTA)
Refugee Council
RNIB
Runnymede Trust
Scope
Stonewall
The Age and Employment Network (TAEN)
Trades Union Congress (TUC)
UKREN (UK Race in Europe Network)
UNISON
Women’s Budget Group
Women’s Resource Centre
1
[1] A list of EDF members is attached as appendix 1