Hooray for Chris Grayling. The well respected Justice Secretary has upset a number of people this week by his proposals to kick over the judicial review gravy train. The Witchfinder on the other hand wants to shake him by the hand. As a law student your author knows all too well how the courts can be abused, and whilst he is all for access to justice he is compelled to support Grayling’s well thought through proposals.
There have been two recent consultations on reform of Judicial Review and the one the Witchfinder refers to is the more recent one here, in relation to legal aid.
In order to explain why reform is a good idea it is necessary to explain judicial review – what it is, when it can be helpful and when and how it can be abused. The idea of judicial review is a good one. This nation is ruled by laws and by ancient concepts of justice which existed long before the European Convention on Human Rights – in fact the ECHR owes a great deal to English law.
It follows that public bodies must follow the law – both its letter and even its spirit. So basically judicial review means asking a Court to intervene where a public body breaks the law. In addition, a Court can intervene where a public body makes a decision that is lawful on its face but completely unreasonable, or where it is lawful and reasonable but the body is using the law in a way that Parliament did not intend.
Judicial review is limited. It is important that in society the bodies chosen by our democratic institutions (i.e. Parliament) make decisions because they usually have the relevant expertise. For example, normally social services make decisions about social care and child protection. If there is a bomb in a public place you want a bomb-disposal expert – not a crack team of lawyers!
Because of this judicial review is not allowed just because someone disagrees with the decision of a public body (“no! cut the red wire!”). It is not the role of judges to make decisions or there would be no point having social workers, bomb disposal experts or whatever in the first place. Instead the courts have a supervisory role. They can only intervene where a decision is unlawful or utterly unreasonable. The law in this context is often misunderstood and there is a permission system to weed out misconceived cases. This can be useful because someone not granted permission is also not exposed to the other side’s costs.
‘Unlawfulness’ in a decision can be a number of things. It can be that the decision goes beyond powers granted by law, or breaks a law (for example if it is discriminatory). It could be that the decision was made in an unfair way. If Judicial Review is granted a court has a number of powers, most important of which is to quash a decision whereby the public body’s decision is unmade. However the power has limits – a public body can sometimes make the same decision again after sorting out the procedural issues.
Judicial review is an important right. An example of a ‘good’ judicial review is the recent case in which Haringey launched a child protection investigation dubious grounds. Humiliatingly for Haringey the decision has now been quashed and the parents can now seek damages.
The problem is that judicial review is also capable of being misused. A lot. In 2011 there were 11,200 applications for judicial review (statistics here). 8,649 of these were in relation to immigration and asylum. In those cases, 607 (7%) got permission and of those 54 (0.6%) were allowed. Of the remaining 2,551 applications unrelated to immigration permission was granted in 613 (24%) of cases and 120 were allowed (4.7%).
For those of you not following this is a nice way of saying that lawyers bring a lot of doomed permission applications, especially in relation to immigration. Why? Well, it is highly technical work and as the consultation paper says they get up to four (count ’em) four goes. That is –
- permission application on paper
- oral renewal of permission application
- application for permission to appeal on paper
- oral renewal of application to permission to appeal
The astute will realise that four legally aided chances is a lot. One of the things the Witchfinder hates is raising false hopes. Technical legal victories can often deliver no practical benefits to litigants. Successfully appealing or reviewing a decision on a procedural flaw often does not mean it was wrong – it may just be made again.
A less technical way of saying this is that the current system allows greedy lawyers to rape the legal aid system to death. Chris Grayling’s proposals on legal aid are pretty simple. People will continue to get legal aid for initial advice and pre-action representation. However if the legal aid lawyers decide to go forward and apply for permission then the permission application will be made effectively on a no-win, no-fee basis. They will only get paid for the application if they win.
To hear the whining you would think Chris Grayling had advocated the re-introduction of public crucifixion.
The objections to this proposal are pathetic. In the private sector a law firm could offer exactly the same arrangement. Why is it ok to do a lawsuit against a council for say, a fall caused by a dangerous pot-hole on a no-win no-fee basis but not ok for the same arrangement in judicial review of a social care decision by the same council? The answer is simple – because some lawyers like being paid for bringing pointless time-wasting applications and then dragging out their four chances at public expense.
People often complain about ambulance chasing no-win no-fee lawyers. I have always felt that wing of the profession is far more honourable, betting their own time on their client’s case, than those who raise false hopes at public cost knowing that they will be paid even when their client inevitably loses.