Judicial reviews are an essential tool to hold public authorities to account. They are used to force the government, local authorities, the police and other public bodies to justify their decisions, abide by the law and fulfill their obligations.
The government proposes to limit their use to cases that have a good chance of success saying ‘we continue to believe it is important to make legal aid available for most legal aid cases’. This statement, however, is misleading.
Under the government’s proposals judicial reviews will no longer be funded unless solicitors receive permission to proceed from the courts. However a lot of work is done building a case before permission is sought meaning solicitors would have to predict which cases would be successful or risk not being paid. Naturally that is not realistic leaving them with little option other than to abandon the application. While many applications for permission are unsuccessful lawyers argue that many are dropped before they make it to court as the mere threat of one is enough to bounce authorities into action.
Polly Glynn, a solicitor at Deigton, Pierce and Glynn, said: “What is under attack here is the rule of law and the fundamental pulse of our justice system. No government likes to have its policies challenged. Challenging the government will become impossible.”
The importance of judicial reviews cannot be overstated. They can be used to prevent councils from making people homeless, force police to investigate allegations of rape or to challenge unlawful detention by the state.
Sian Evans, from Women Against Rape, said: “These changes to judicial reviews will make it harder for women to bring cases against councils, the police or the Crown Prosecution Service because they often don’t get the response they’re supposed to. Judicial review is one way that rape survivors have been able to force authorities to act after reporting a rape and not having it investigated properly.”
Evans also said women with children who become homeless are at risk of having their children taken away. Judicial reviews can be applied for to enforce their right to be housed and keep their child. She said: “If you are homeless and go to the local authority and ask for housing they can say your child is not safe because you don’t have access to housing and take your kid off you and [if the proposals go through] you will have no legal aid to fight it.”
She said: “I knew of a woman who was homeless and didn’t have enough money for her and her baby to go to someone’s she hoped would put her up … and the way the police responded was to take them into custody and take the kid off her.”
The government is also introducing a civil merits test where civil cases, such as a judicial review, that are considered to have only a borderline chance of success will no longer be funded. Borderline means it is not possible to determine whether there is more or less than a 50 per cent chance of success.
Nathalie Lieven QC, who has spent much of her career defending the government, said the majority of high profile cases (that set precedents) are borderline cases. She said in a case she was defending on behalf of the British government that sought to allow a prisoner access to courses without which he had ‘no hope of being released’ the claimant lost in the divisional court, the Court of Appeal and the House of Lords and then won at the European Court of Human Rights.
She said: “The poor man was banged up for something like three and a half years effectively with no ability to get out. How could you possibly argue that that wasn’t borderline. And that’s a case that simply could not be brought under the judicial review tests even if it could get past the prison exclusion tests.”
She added: “I see these proposals being far more about a government trying to stop valid judicial reviews of its executive actions rather than a government being genuinely concerned about saving, what is on any analysis, a very small amount of money.”
In its consultation paper the MoJ identified that 61 per cent of applications for judicial review (out of 4074) in 2011/12 were refused permission and recorded no benefit to the client, that is, no action was taken by the public authority on threat of legal action.
The government has stated that some cases will be exempt from the borderline test while costs can be applied for where permission is not given to proceed with a judicial review but where an authority has acted on threat of action.