Goodbye JR?

“We are gravely concerned that practical access to judicial review is now under threat,” the letter reads. Importantly, the 90 signatories include not just those practitioners who bring cases against public bodies but also those who act for them.

The letter goes on to criticise a number of the Ministry of Justice’s key proposals, in particular:

• refusing any legal aid to those who did not meet a residence test;
• refusing to pay lawyers “in some cases for work reasonably and necessarily carried out”;
• removing legal aid for complaints of mistreatment in prison;
• preventing small specialist public law firms from offering prison law advice;
• removing funding for test cases (whose prospects are by definition uncertain); and
• cutting rates for legal advice and representation still further.

More detail on the reforms, part of a package of measures unveiled in April that the MoJ believes will save £220m by 2018/19, can be found here.

The QCs make the points that many people could be forced to represent themselves if they are to obtain justice and there will be inequality in arms. “Effective representation will be one-sided: the Government will continue to pay for, and be represented by specialist lawyers,” they add.

The prospect of yet more litigants-in-person entering the justice system as a result of these changes is not something that local government litigators will look forward to.

There will also be concerns that the quality of decision-making could suffer if there is a percepton amongst members and management that public bodies are pretty impervious to challenge. Moreover, the temptation to sideline the legal department in the decision-making process may grow.

The whole issue has undoubtedly been clouded by the Government’s use of statistics to justify its view that there are too many weak cases. It is still unclear – to me at least – where the truth lies.

While the failure of many recent JRs would suggest that some fairly thin arguments are being presented by some claimants, judicial review does play a vital role in defining the limits of public bodies' powers to the benefit of the authorities and public alike. If the proposed legal aid changes, which it should be noted are much less severe for judicial review than many other areas of practice, do have the effect of blocking legitimate challenges, then we will all be the poorer for it.

One of the potential problems with the QCs’ intervention, meanwhile, is how the letter is received in the court of public opinion. Take some of the comments on the Daily Telegraph site in response to the letter: “We’re only hearing from them because their subsidised lifestyle is threatened”, “Vested interest or what?” and “If access to legal advice for judicial review is such an important issue for these people, no doubt they will be willing to reduce their own fees to ensure it continues…”.

Talk of the measures undermining the rule of law and having a negative impact on Britain’s global reputation of justice may be valid points, but they won’t mean much to many members of the public.

The Justice Secretary could well be wrong on this issue, but he may well feel he is not going to lose any votes if the reforms are implemented.