More major rule of law changes, more dodgy statistics used to justify them
5 May 2013
“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
- removing legal aid for prisoners challenging the way they are treated in prison,
- reforms to legally aided Judicial Review to “fund weak Judicial Reviews”,
- the introduction of a household disposable income threshold above which defendants would no longer receive criminal legal aid;
- amendments to the civil merits test to prevent the funding of any cases with less than a 50% chance of success;
- introducing price competition into the criminal legal aid market,
- reducing the cost of criminal legal aid fees for Crown Court advocacy and Very High Costs Cases,
- reducing lawyers’ fees in family public law cases and asylum and immigration appeals and
- 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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