More major rule of law changes, more dodgy statistics used to justify them

9780312421274“Access to justice should not be determined by your ability to pay”, begins the Justice Secretary Chris Grayling – perhaps accompanied by a subtle wink – at the beginning of  the Ministry of Justice’s new consultation document. As many readers will know, the Government is currently consulting on a second round of legal aid cuts. This time, savings of £220m per year are estimated. The consultation closes in just under a month, on 4 June 2013. 

The  reforms are major, and will impact on hundreds of thousands, if not millions, of people. They relate, in summary, to

  1. removing legal aid for prisoners challenging the way they are treated in prison,
  2. reforms to legally aided Judicial Review to “fund weak Judicial Reviews”,
  3. the introduction of a household disposable income threshold above which defendants would no longer receive criminal legal aid;
  4. amendments to the civil merits test to prevent the funding of any cases with less than a 50% chance of success;
  5. introducing price competition into the criminal legal aid market,
  6. reducing the cost of criminal legal aid fees for Crown Court advocacy and Very High Costs Cases,
  7. reducing lawyers’ fees in family public law cases and asylum and immigration appeals and
  8. reducing fees to experts in civil, family and criminal cases by 20%.

The consultation document is here  – it is 161 pages long, so if you are planning to respond, give yourself enough time to wade through it. You will also need to work with what I call, in homage to one of my favourite books, The Corrections (this document), a long list of amendments to the main document, published the following  day. I should warn you: these are not just minor typos, there are some pretty material errors. For example, in the original document at paragraph 5.3, Very High Cost Cases are said to cost a “disproportionately large amount, around £592m”. In fact, as the corrections document points out, they really cost £92m –  half a billion pounds out. There are a lot more errors, so read with caution.

Oh, and as the late, great Steve Jobs used to say – one more thing. As the Public Law Project has pointed out, on 23 April the Justice Secretary Chris Grayling told the BBC Today Programme, when announcing the Government’s response to a recent consultation on Judicial Review:

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.

Only around 1.5% successful? That sounds very low indeed; clearly there is a need for reform…

But wait! Academics Varda Bondy and Maurice Sunkin have attempted to unpack the statistics. As any Judicial Review practitioner will probably guess, the 144 successes at substantive hearings are but the tip of an iceberg-size load of cases which are granted permission to proceed to a full hearing but are then settled by the public authority being challenged.

All Judicial Review applications need permission from a judge to proceed – the claim has to be “arguable”. This is called the “permission stage”. Mysteriously, compared to the 11,359 cases issued in 2011, there were only 6,264  permission decisions. This means that, for some reason, almost half disappear between being issued and reaching the permission stage. Brondy and Sunkin suggest, based on their own empirical research, some 34% of cases are withdrawn early as the obtain settlement. Which means close to 4,000 cases succeed, in that the claimants get what they want, or at least something so close  to it that the claimant will drop the case, before the permission stage.

Then, of the cases which are granted permission to proceed, around 40% of the roughly 1,000 cases granted permission settle before the substantive hearing. Brondy and Sunkin conclude:

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.

So, it is absolutely unacceptable for the Justice Secretary to imply that only 1.5% of Judicial Review claims are successful. Every  litigation lawyer knows that success in any claim can come in different forms, most commonly by way of amicable settlement long before trial. The real figure  for Judicial Review successes is over 40%, (around 4,500 of the 11,359 applications) and the Justice Secretary is clearly being as careful with his figures as whomever wrote the latest consultation document was.

It should be pointed out that the Government’s “ad hoc statistical release” on Judicial Review,  published months after the Judicial Review reform consultations, is vague and unhelpful and does not address this point, which is clearly central to the justification for any reforms attempting to limit Judicial Review.

What other errors are lurking in the latest consultation document, which will – amongst other things – have a very significant limiting effect on Judicial Review? No doubt those responding to the consultation will make the corrections – whether the MoJ will listen is a separate question. In the meantime, we will have to put up with yet more slipshod justifications and outright misrepresentations.

As with previous consultations, I will be collating responses so please send me yours (to email click here).

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7 thoughts on “More major rule of law changes, more dodgy statistics used to justify them

  1. Actually it is the same statistical pattern that emerges in PI cases, Very few are actually heard & a significant number are settled at the last minute in the foyer before the doors of the Court open.

  2. Rosemary Cantwell 5 May 2013

    Dear Mr Wagner

    It appears to me as a lay person that Mr Farage of UKIP may herald a sea change not just in politics of whether or not we should remain in the EU but also about our fundamental rights and freedoms won painstakingly over the last several centuries.

    England, Scotland, Wales and Northern Ireland together make up the United Kingdom but they have different legislative bodies and different laws and differing legal codes in consequence.

    What does, however, unite us is the fundamental core principles enshrined in British law that we are a democracy and that we have both rights and responsibilities but that unless we break the law of the land, we should be able to have good and proper representation if anyone is accused of a crime. That is essential. Otherwise there becomes an issue of “kangaroo courts” where people cannot afford expensive barristers or can only get “bog standard” representation at the very most, or, worse, might have to represent oneself and have nobody to act on his or her behalf.

    If people are to have any respect for the law of the land, and for law enforcers, who can arrest people – anyone except the Monarch – and then get people to be prosecuted, then it is essential that there by FULL disclosure of ALL materials to the Defendant, and the Defendant should have the BEST advocate, and not the worst, as it is fundamentally unfair to be able to accuse someone who is innocent until proved guilty – with a Jury of 12 people – as essential part of this – of any crime without having the best defence possible.

    Otherwise we might all as well hang our collective heads in shame as we are still one of the richest nations in the world and we used to be the byword of democracy, but no longer if these laws come into effect.

    This is tantamount to becoming a police state – an authoritarian state – where might is right and the rich will be able to get the best lawyers and the poorest will get sub-optimal defence.

    This cannot be right and must be resisted at all costs.

    Thank you so much for your excellent reprise. Please do include me in the consultation and name me.

    Yours sincerely,

    Rosemary Cantwell
    Campaigner for liberty, truth and justice for all

    • As I understand it, Codes of Practice have no legal force unless they inform a decision the outcome of which which is manifestly absurd, illegal, irrational etc challengeable by er, Judicial Review, er, hang on—-!!? Hasn’t ‘failing Grayling’ just applied the government’s razor to that method of accountability as well?

      Anyone see pattern emerging here?

  3. I wonder if anyone actually believes that the government is any more willing that its predecessor to allow itself to be deflected from its policies by mere controverting evidence obtained by ‘consultation’ exercises which create the illusion that the public or the professions will in any way affect policy decisions many of which are are already in the advanced stages of completion. One only has to read a myriad of anodyne government responses to genuine concerns raised by sterile consultations and select committee reports to arrive at such a conclusion.

    Restraints on Ministerial power are to be weakened and eventually neutralised by placing executive acts beyond the reach of the courts by a process which places the courts beyond the reach of the public affected by decisions arrived at by Ministers and their officials acting outside of the powers Parliament has given them.

    Secure in a culture of impunity which reduces citizens to subjects and a judiciary reduced to enforcing the rights of the financially strong against the impecunious weak, I doubt very much if the public actually realise just whats in store for them as they take yet another blind step down the road to serfdom.

  4. Perhaps at risk to oneself now is the time for any defendant lawyer to advise the jury that THEY, the jury, are in charge of the defendant & trial and can ignore the guidance offered by the Judiciary

  5. You don’t need a long time to wage through it, it’s nonsense and should be resisted. However, when consultation results in a response that gives 80% ‘no’ views and they go ahead with it anyway, the whole process as described above is simply a way of pretending that views have been taken into account. This ideological nonsense will all result in more costs in the long run.

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