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38093 PBC 169 Criminal Justice and Courts Cover.Indd Public Bill Committee CRIMINAL JUSTICE AND COURTS BILL WRITTEN EVIDENCE PUBLISHED BY AUTHORITY OF THE HOUSE OF COMMONS LONDON—THE STATIONERY OFFICE LIMITED PBC (Bill 169) 2013 –2014 © Parliamentary Copyright House of Commons 2014 This publication may be reproduced under the terms of the Open Parliament Licence, which is published at www.parliament.uk/site-information/copyright/ Enquiries to the Office of Public Sector Information, Kew, Richmond, Surrey TW9 4DU; e-mail: [email protected] Distributed by TSO (The Stationery Office) and available from: Online The Houses of Parliament Shop www.tsoshop.co.uk 12 Bridge Street, Parliament Square London SW1A 2JX Mail, Telephone, Fax & E-mail Telephone orders: 020 7219 3890 TSO General enquiries: 020 7219 3890 PO Box 29, Norwich NR3 1GN Fax orders: 020 7219 3866 Telephone orders/General enquiries: 0870 600 5522 Email: shopwparliament.uk Order through the Parliamentary Hotline Lo-call 0845 7 023474 Internet: Fax orders: 0870 600 5533 http://www.shop.parliament.uk E-mail: customer.serviceswtso.co.uk Textphone: 0870 240 3701 TSOwBlackwell and other Accredited Agents 38093 Contents Nick Armstrong, Matrix Chambers (CJC 01) The Howard League for Penal Reform (CJC 02) UK Lawyers for Israel (CJC 03) End Violence Against Women Coalition (CJC 04) The Prison Reform Trust (CJC 05) Professor Feona Attwood, Emeritus Professor Martin Barker and Professor Clarissa Smith (CJC 06) Bar Council (CJC 07) Backlash (CJC 08) Standing Committee for Youth Justice (SCYJ) (CJC 09) Rehman Chishti MP (CJC 10) Public and Commercial Services Union (PCS) (CJC 11) Professor Clare McGlynn and Professor Erika Rackley (CJC 12) Sex & Censorship campaign (CJC 13) The Law Society (CJC 14) Rape & Sexual Abuse Support Centre (CJC 15) Asda (CJC 16) Martin Westgate QC (CJC 17) Criminal Justice Alliance (CJC 18) Bail for Immigration Detainees (CJC 19) Magistrates’ Association (CJC 20) Public Law Project (CJC 21) Liberty (CJC 22) Liberty, further evidence (CJC 23) Newspaper Society (CJC 24) Campaign Against Censorship (CJC 25) JUSTICE (CJC 26) JUSTICE – supplementary (CJC 27) Equality and Diversity Forum (CJC 28) Ismail Abdulhai Bhamjee (CJC 29) Steve Symonds (CJC 30) Immigration Law Practitioners’ Association (CJC 31) Medical Justice (CJC 32) Richard Taylor (CJC 33) Dr Mark Coen, Durham Law School (CJC 34) Association of School and College Leaders (ASCL) (CJC 35) RSPB and Friends of the Earth (CJC 36) Bar Council, supplementary evidence (CJC 37) Jamie Grace (CJC 38) The Law Society, supplementary evidence (CJC 39) Criminal Bar Association (CJC 40) BritCits (CJC 41) BBC, Guardian News & Media Limited, Independent Print Limited, Express Newspapers, ITN, Channel 4 Television Corporation, Telegraph Media Group Limited, Associated Newspapers Limited and Times Newspapers Limited (CJC 42) Terence Ewing (CJC 43) Mrs Sue Braithwaite and Mrs Mandy Stock (CJC 44) Criminal Justice and Courts Bill 3 Written evidence Written evidence submitted by Nick Armstrong, Matrix Chambers (CJC 01) GENERAL POINT The proposed changes to judicial review will privatise public law. Public law, and judicial review, is different to private law. Private law is about resolving disputes between individuals. A court looks back, i.e. at something that has happened in the past, and awards a remedy if that is required. Judicial review, by contrast, looks forward. That is, a judicial review will only succeed if there remains an outstanding issue of importance. That may be a policy, practice or decision that is unlawful and which needs changing for the future. A disabled person may be entitled to services, a school admissions panel may be required to look again at a case, a piece of government guidance may get the law wrong. This “forward looking” aspect of judicial review is important for a number of reasons: 1. Judicial reviews may be perfectly valid at the outset, but become academic because a situation changes, perhaps through the action of a third party (the UKBA granting leave to remain, for example, so an individual need no longer look to a local authority for services). The need for the judicial review therefore falls away, but a claimant was right to have brought it. Should the work preparing it not be funded, even though permission is not granted? 2. Judicial reviews are not just concerned with the interests of the parties, but also non-parties who will also be subject to the policy or practice. Everyone has an interest in ensuring good quality decision- making. Everyone has an interest in ensuring that government action is lawful. Everyone has an interest in ensuring that officials do what Parliament intended them to do (hence the point that the organisation Justice is making: ministers often tell Parliament that if there is a problem with the detail in a bill, “there is always judicial review”). This remains true even when the parties are no longer interested in the outcome, and so the matter has become academic so far as they are concerned. This goes to the “materiality” point in Clause 50 of the Bill. It also goes to the importance of interveners, who are there when the court recognises that there is an interest beyond that of the parties, and where it needs to get its wider “forward-looking” function right (Clause 53 of the Bill). 3. For these and other reasons, private law concepts, including costs-incentives, do not translate well into judicial review. Judicial reviews are not “binary”. They are not “win or lose” for an individual. There are cases that individuals will not support, and which solicitors’ firms cannot risk assess, because they are affected by interests beyond the individuals immediately involved. The private market will not therefore step in to fund judicial review, or all judicial reviews. Privatising public law will therefore mean this crucial constitutional function will be seriously undermined. It may be lost altogether, and in respect of the most important, far-reaching cases. LEGAL AID A further general point is that the current reforms, contained in Part 4 of the Bill, are part of a much wider raft of measures including, in particular, the Transforming Legal Aid changes, the consequences of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (which has not yet been in force a year and whose effects have not yet worked through), and the judicial review changes already introduced. I have been involved in civil justice reform for more than 20 years. Lawyers usually oppose change. Things are not usually as bad as they first appear. But after a year of meetings on the legal aid changes in particular, I think I can safely say I have never seen anything like this before. There is usually someone who can be found to say “I think this can be found to work”. There is no such person this time. The meetings I attend are, frankly, and without risk of overstatement, full of despair. Any one of the current proposals would present problems. Take as a whole, the unanimous view is that the reforms may well derail the essential constitutional protection of judicial review altogether. Few good solicitors will be able to continue. Few judicial reviews will then be brought. Even fewer interventions will be possible. Unlawful decisions and practices will go unchallenged. Make no mistake: these reforms, which the Justice Secretary has said, more than once, to be “ideological”, go much further than anything that has gone before. It is of note that the particular proposal for restricting legal aid for judicial review, which is that lawyers will not be paid unless permission is granted, is not contained in this Bill. They will be, it is said, in secondary legislation. This is despite the fact that of all the current proposals that is the most dangerous. A top quality firm I spoke to in preparing this paper told me that they had assessed all the cases they had run during 2012. 25% would not now be paid. This was not because they had been refused permission, but because other things had changed as a case progressed. That firm cannot take a pay cut of 25%; it cannot survive it. This would be the effect of the judicial review proposal alone. The 25% figure takes no account of the effect of other legal aid reforms, including the residence test that is due to be introduced shortly. THE AFFECTED CASES One of the cases run by the firm mentioned above, and which the firm says it could now bring, concerned an action by 12 homeless teenagers who alleged that a local authority procurement process had been unlawful. The 4 Criminal Justice and Courts Bill authority agreed, and restarted the process, but on condition that there be no order as to costs. The solicitors had to accept that “deal”, because it was in their clients’ best interests. No doubt it would now be said that the firm could still do the work, and rely on Legal Aid Agency (“LAA”) discretion to pay them in the circumstances. But the firm cannot rely on that. The ambit of LAA discretion is uncertain at the best of time, and particularly so when with this new proposal. The firm says that simply could not prepare 12 separate cases, however meritorious, at risk of not being paid. So these important cases would not be brought. That same firm has also brought about changes to the law so that people are entitled to legal representation in specific, highly charged, circumstances (more than one case of this kind has been brought in the past 12 months, concerning a variety of situations). These are also important cases that could not now be brought: the costs risks would be too great. This is just one firm, and there are many examples of cases like these that could not now be brought because, for example, the start-up costs would be too great to take the risk of non payment.
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