Baroness [Jane] Campbell was one of a string of peers – including the Conservative peer Lord Cormack – who criticised the Conservative chancellor, Chris Grayling, over his new judicial review regulations.
She told fellow peers this week of two landmark judgments on disabled people’s right to independent living that had resulted from judicial reviews in the last six months.
In November, the court of appeal upheld an appeal challenging the decision to close the Independent Living Fund, and in March, the Supreme Court ruled that three disabled people had been unlawfully deprived of their liberty under the Mental Capacity Act.
Baroness Campbell said: “We cannot be confident that such cases will continue to come before the courts if these regulations are in place.”
She said Grayling, who is also justice secretary, had used an article in the Daily Mail to criticise the use by campaigners of judicial reviews to challenge the decisions of government and public bodies in the courts.
But she said: “No matter how many times the lord chancellor repeats himself, judicial review is not about campaigning; it is about people standing up to public bodies when they get it just plain wrong.
“That is exactly why we need judicial review and why legal aid is so vital to its effectiveness.
“It is about every citizen’s right, not just those with deep pockets, to challenge the state if it behaves unlawfully.”
She added: “Those who may be most affected – the disadvantaged in our society – cannot do that alone. They rely on lawyers to represent them.
“These regulations will make it all but impossible for lawyers to take on their cases. That is a denial of justice. It undermines the rule of law.”
The new regulations, which came into force on 22 April, mean legal aid will only be granted for judicial reviews if the court grants permission for the case to continue, or, if the court neither refuses nor grants permission, the lord chancellor thinks it is “reasonable” to pay legal aid.
Legal aid was previously paid to a claimant’s lawyers if the claimant satisfied a means test and showed that their case had “legal merit”.
The crossbench peer and barrister Lord Pannick, who moved the motion of regret in the Lords, said that judicial reviews often do not proceed because a public body agrees to rethink its position.
He said: “The problem is that, if lawyers know that they have no right to be paid in such cases, even at the low – scandalously low – rates currently thought acceptable by the lord chancellor, the inevitable result will be that clients with a strong claim will find it much more difficult to find competent [legal]representation.”
The Liberal Democrat peer and barrister Lord Lester said: “I do not know any case, and certainly the present lord chancellor has not pointed to a single case, in which judges have failed to do their job properly by curbing the misuse of judicial review… Therefore it is an assault on the rule of law in a fundamental sense.”
The crossbench peer and penal reform expert Baroness Stern pointed to four judicial reviews that had improved the treatment of disabled prisoners, including a prisoner with mental health problems who had not been transferred to a secure hospital for treatment, a prison that failed to provide a disabled prisoner with an electric wheelchair and an accessible cell, and a prisoner who complained about the lack of accessible facilities in women’s open prisons.
The Labour peer Lord Bach, another barrister, said ministers had used the existence of legally-aided judicial review as a reason why it was safe to remove legal aid from social welfare law.
But just a year later, he said, they were “introducing a regulation that is bound to have the effect of making it very unlikely that a poor or disabled person, or a citizen who needs legal aid, will be able to get justice by way of judicial review”.
The Conservative justice minister Lord Faulks insisted that civil legal aid for most judicial review cases would remain, and the new regulations would ensure that “limited legal aid funds are not used to remunerate weaker cases”.
He added: “The government firmly reject the accusation that these regulations will undermine access to justice.
“There is nothing novel about the principle of expecting [lawyers]to work at risk and receive remuneration only where it is established that their case is meritorious.”
But he said he would pass on peers’ comments to Grayling and “convey the anxiety expressed about this erosion, as it is characterised, of a constitutional principle”.
8 May 2014