Legal Aid and Judicial Review – A Community Law Partnership (CLP) Discussion Paper
Shortly before the General Election the Government introduced new regulations restricting the availability of legal aid in judicial review cases. Given that we now have a Conservative majority government, it seems that these regulations will remain in place. These regulations may have severely detrimental effects on Gypsies and Travellers and CLP believe these regulations are highly challengeable. If you want to discuss this matter or if you are a Gypsy or Traveller who wants to challenge these regulations please telephone us on our advice line, 0121 685 8677.
The importance of judicial review for Gypsies and Travellers
If a Gypsy or Traveller is on an unauthorised encampment and the local or other public authority concerned takes county court possession action against them but has failed, for example, to follow the government guidance by carrying out welfare enquiries, there is no availability of legal aid to defend in the county court so any challenge would be by way of judicial review.
If a stop notice is served on a Gypsy or Traveller or if a local authority fails to process a planning application or refuses/fails to take a homeless application, any challenge would be by way of judicial review.
If a local authority brings in a very large pitch fee increase on a Gypsy/Traveller site and a Gypsy or Traveller resident wants to challenge that, any such challenge would be by way of judicial review.
In the case of R(Moore & Coates) -v- Secretary of State for Communities and Local Government, Mr Pickles’ policy of recovering Gypsy and Traveller Green Belt planning appeals was challenged by way of judicial review. The policy was found to be unlawful and discriminatory – see report on our website at: https://www.communitylawpartnership.co.uk/traveller-planning/277-moore-a-coates-v-ssclg
So it can be seen just how important the availability of judicial review is to Gypsies and Travellers.
The old regulations found to be unlawful but government simply introduces new regulations
The effect of the Civil Legal Aid (Remuneration) Regulations 2013 was that solicitors and counsel on a legal aid funded judicial review would receive no payment for the period between issue and permission unless permission was granted. There was a discretion on the part of the Legal Aid Agency to pay those costs if a case ended before permission but that had to be applied for and was wholly a discretion. In the case of R(Ben Hoare Bell and Others) –v- The Lord Chancellor the High Court decided that these regulations were unlawful – see our website at: https://www.communitylawpartnership.co.uk/noticeboard/news/294-r-ben-hoare-bell-a-others-v-the-lord-chancellor
Despite this powerful judgment, the Government have simply re-introduced the regulations with slight adjustments (see the Civil Legal Aid (Remuneration) (Amendment) Regulations 2015). There is a link to the regulations here:- http://www.legislation.gov.uk/uksi/2015/898/made
Once again a legal aid provider will only be paid by the Legal Aid Agency if either permission is granted or, if the matter settles before permission is granted without the other side agreeing to pay the costs, at the discretion of the Legal Aid Agency. This means that a legal aid provider would have no guarantee of being paid at all (through no fault of their own) on a judicial review case. The changes are that the Government have now stated that there will be payment in three other circumstances and these are circumstances that were given as examples by the Court in the Ben Hoare Bell case of why the regulations were unlawful – they were clearly not intended as the only instances when the regulations were unlawful. The three circumstances are:-
(c) the defendant withdraws the decision to which the application for Judicial Review relates and the withdrawal results in a court – (i) refusing permission to bring judicial review proceedings, or (ii) neither refusing nor giving permission;
(d) the court orders an oral hearing to consider- (i) whether to give permission to bring judicial review proceedings; (ii) whether to give permission to bring a relevant appeal, or (iii) a relevant appeal, or
(e) the court orders a rolled-up hearing.
The effect of these regulations will almost certainly be to dissuade many legal aid providers from running judicial review cases. Gypsies and Travellers may find it very difficult or impossible to find a provider to take on their case. Judicial review is, of course, a vital tool for those seeking to challenge unlawful decisions of public authorities. It is vital that these disastrous regulations are challenged.
Community Law Partnership
This is one of the main issues that is being taken forward by the No Mad Laws campaign – see their website at: http://www.nomadlaws.co.uk/