Wednesday 8 May 2013

Lies, Damned Lies and Statistics - Legal Aid and Judicial Review Changes

From the Travellers' Times

By Chris Johnson, Community Law Partnership and Marc Willers, Garden Court Chambers

Please read this article and respond to the Ministry of Justice Consultation Paper before it is too late!


You have until 4th June 2013 to respond

Use the online consultation tool at:

https://consult.justice.gov.uk/

And specifically complete this complex questionnaire:

http://tinyurl.com/d5g4u5m

Alternatively, please send your response to:

Annette Cowell Ministry of Justice 102 Petty France London SW1H 9AJ

Tel: 020 3334 3555 Fax: 020 3334 4295 Email: legalaidreformmoj@justice.gsi.gov.uk

A large percentage of the Gypsy and Traveller population who live in caravans have to resort to unauthorised encampments due to the lack of adequate sites. If they are faced with a threat of eviction by a local or public authority where the authority concerned are acting unlawfully (e.g. by failing to follow government guidance) then their only recourse is to seek judicial review of the authority concerned.

This blog addresses the government’s latest proposals on the provision of Legal Aid for judicial review claims which are set out in its consultation paper Transforming Legal Aid: delivering a more credible and efficient system. The deadline for responding to the consultation paper is 4th June 2013 and we would urge everyone to respond.

The first stage in a judicial review application, once lodged at the court, is that a judge will decide, either on the papers or at an oral hearing, whether the case has sufficient merits and should be given ‘permission’ to proceed to a final hearing. In the consultation paper, the government states, with regard to judicial review applications (at para 3.69):

We propose that providers should only be paid for work carried out on an application for permission (including a request for reconsideration of the application at a hearing, the renewal hearing or an onward permission appeal to the Court of Appeal), if permission is granted by the Court.

This would mean, in a case where the claimant has Legal Aid, that the lawyer (or provider) would have to run the case to a permission hearing (if it got that far – see further below) without any guarantee that they would ultimately be paid for the work done.

Judicial review challenges to local and public authorities are a cornerstone of a democratic society. They allow individuals to ensure that local and public authorities are prevented from making unlawful decisions or taking unlawful actions. Without such challenges, local and public authorities can act as they please, safe in the knowledge that their actions will not be scrutinized by the Courts.

Michael Fordham QC has stated:

Judicial review is a central control mechanism of administrative law (public law), by which the judiciary discharge the constitutional responsibility of protecting against abuses of power by public authorities. It constitutes a safeguard which is essential to the rule of law: promoting the public interest; policing the parameters and duties imposed by Parliament; guiding public authorities and securing that they act lawfully; ensuring that they are accountable to law and not above it; and protecting the rights and interests of those affected by the exercise of public authority power ( Judicial Review Handbook, 6th ed., Hart 2012 p5).

In R v Ministry of Defence ex p Smith [1996] QB 517 at 556 D-E, Sir Thomas Bingham MR stated:

…the court [has] the constitutional role and duty of ensuring that the rights of citizens are not abused by the unlawful exercise of executive power.

In R v Secretary of State for the Home Department ex p Fire Brigades Union [1995] 2 AC 513 at 567D-568B, Lord Mustill stated:

To avoid a vacuum in which the citizen would be left without protection against a misuse of executive powers the courts have had no option but to occupy the dead ground…

In Roberts v Gwyrfai DC [1899] 2 Ch 608 at 614, Lindley MR stated:

I know of no duty of the Court which it is more important to observe, and no power of the Court which it is more important to enforce, than its power of keeping public bodies within their rights.

In R v Inland Revenue Commissioners ex p National Federation of Self-Employed and Small Businesses Ltd [1982] AC 617 at 641, Lord Diplock referred to the “progress towards a comprehensive system of administrative law” as “having been the greatest achievement of the English courts in my judicial lifetime.”

And now this government intends to put judicial review out of reach of everyone apart from the rich. As explained above, the proposal is that Legal Aid providers will not be paid for work done on a judicial review case unless and until permission is granted.

At para 3.62 of the consultation paper the government state that:

We consider that the appropriate way in which to address this issue is to build into the Civil Legal Aid Scheme a greater incentive for providers to give more careful consideration to the strength of the case before applying for permission for Judicial Review....

What is the evidence that Legal Aid providers are not already doing this? We believe that Legal Aid providers will always give very careful consideration to a matter before they consider lodging a judicial review application.

What is the real evidence? The Public Law Project (PLP) have stated:

On the Today Programme on 23 April 2013, the Lord Chancellor was interviewed by John Humphreys about the Government’s plans to implement changes to judicial review procedure. The interview included the following exchange:

Humphreys: Why are you doing it [making the changes]?

The Lord Chancellor: Well let me give you a raw piece of statistic that will explain the nature of the problem. In 2011, the last year we had figures available, there were 11,359 applications for judicial review. In the end 144 were successful and all of the rest of them tied up government lawyers, local authority lawyers in time, in expense for a huge number of cases of which virtually none were successful. We’re not saying there shouldn’t be judicial review, we’re not saying that members of the public and organisations should not be able to challenge public bodies, but what we’re saying is that we have to raise the bar so that we have fewer cases that have no chance of succeeding.

A brief look at the official Ministry of Justice statistics (see table 6 of the document headed “Judicial Review Statistics 2007-2011 – tables”) shows that the Lord Chancellor’s reference to only 144 “successful” cases was misconceived. This is of concern, because it suggests that the Government’s recently announced changes to judicial review procedure, and its new proposals for restricting legal aid for judicial review, were based on a misreading of the evidence and/or a misunderstanding of the judicial review process. The Lord Chancellor should, more than anyone, be well aware of the constitutional significance of judicial review, as the means by which Government can be held to account by the courts. Restricting access to judicial review – and interfering with the checks and balances of our unwritten constitution – should not be done on the basis of misleading statistics or in an evidential vacuum.

The 144 figure relied upon by the Lord Chancellor is false because it only measures the number of judicial review cases that succeeded at a full hearing (as opposed to 212 that failed). But PLP’s research suggests that thousands of cases will have settled with a positive outcome for the claimant in 2011:

- after the claim was issued but before the permission application was determined

- after permission was refused on the papers but before the oral renewal was heard

- after permission was granted but before the substantive hearing.

…..Research done by PLP and Essex University confirms practitioners’ experience that settled judicial review cases are settled favourably to the claimant in a substantial proportion of cases. It is therefore clear that a substantial proportion of the missing cases and those recorded as withdrawn will have settled on terms favourable to the claimant.

For a projection of the number of successful cases in 2011, it is worthwhile noting the response to the Lord Chancellor’s statement by PLP’s Research Director, Varda Bondy, and Professor Maurice Sunkin of the University of Essex Unpacking JR Statistics, dated 30 April 2013 :

In summary, based on the statistics available for 2011, it can be estimated that claimants will have obtained a benefit (and by implication that their claims had merit) in over 40 per cent of the civil non‐immigration/asylum claims issued in that year. This percentage presents a very different image to that portrayed by the Lord Chancellor when in his radio interview on 23 April 2013 he suggested that less than 1.5 per cent of claimants are successful in judicial review proceedings (144 from 11,359 claims issued). This serious difference points to more than simply a different way of interpreting the statistical evidence. It highlights significant limitations in the official statistics especially for those, including those in government, who need reliable figures on how cases proceed through the system. It is insufficient to rely on statistics that only show how many decisions are taken by judges but do not actually show how individual cases or cohorts of cases progress. This fundamental limitation means that the official statistics provide at best an unreliable evidence base for reform; at worst they are grossly misleading. Either way they do not provide a sound basis for reform nor for public understanding of JR.

As Mark Twain has said:

There are three kinds of lies: lies, damned lies and statistics!

The experience at CLP reflects the research carried out by the Public Law Project. In the majority of their cases the local or public authority defendant concedes the matter before the case ever gets to the permission stage. It might be said that, if the local or public authority concede before the permission stage is arrived at, then the claimant will be able to obtain his/her costs in any event. As is effectively accepted within the consultation paper, this is certainly not the case. Often, in our experience, a local authority will concede and withdraw the relevant decision (albeit that it might be suspected that this concession has been made because the original decision was unlawful or completely wrong) without accepting that the claimant’s legal arguments were correct. In those circumstances it may not be possible to obtain a costs award against the local authority. Alternatively a great deal of further work might be required in making submissions to the court on the questions of costs and, once again, that extra work may also prove to be fruitless if the decision is made that costs should not be awarded in the claimant’s favour.

If these proposals are brought in then we believe that Legal Aid providers will no longer be willing to take on judicial review cases because they will not be able to risk the fact that the case will be run pro bono without any guarantee of payment. This will lead to situations where people are deported to countries where they will face torture or even death, where homeless people will remain on the streets despite the fact that the local authority are in breach of their duties, where people, such as Gypsies and Travellers, will be evicted despite the fact that the local or public authority are acting unlawfully and where local and public authorities in general will have immunity to act in unlawful ways in the most serious of situations without the individual concerned having recourse to a realistic method of challenging that decision or that action.

Clearly in many of those cases there will be an outright breach of Article 6 of the European Convention. Additionally there are likely to be breaches of many other Articles of the Convention if this provision is brought into force. We suspect that if this provision is brought into force then it would be inevitable that there would be a large number of successful applications to the European Court of Human Rights by individuals who were adversely affected by the fact that they had no access to advice and representation when they urgently required it.

6 May 2013

With regard to responses to the consultation paper, the Ministry of Justice state:

We encourage respondents to use the online consultation tool at https://consult.justice.gov.uk/. Alternatively, please send your response by 04/06/13 to:

Annette Cowell Ministry of Justice 102 Petty France London SW1H 9AJ

Tel: 020 3334 3555

Fax: 020 3334 4295

Email: legalaidreformmoj@justice.gsi.gov.uk

The Travellers Advice Team at CLP operate a self-funded national telephone advice line for Gypsies and Travellers in England and Wales. The line is available on 0121 685 8677 Monday to Friday 9 am to 5pm.

Garden Court Chambers have a specialist Romani Gypsy and Traveller Team


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