Judicial Review and Legal Aid: The Past Ten Years

Recently, Tom Hickman wrote a pair of widely-read blogs considering what he described as Public Law’s Disgrace. In those blogs, he identified a severe access to justice problem in the modern judicial review system. The blogs repeated – in a powerful way – the long-held concern that many ordinary citizens are excluded from judicial review on account of it being expensive. The relationship between—what can be put crudely as—money and access to judicial review is a complex one. A thorough investigation of that relationship would require examination of costs between parties, costs incurred by the Government Legal Department, unit costs of the government of running judicial reviews, costs rules and principles, the role of crowdfunding, the role of insurers, what lawyers actually charge for during cases, and many other issues (Maurice Sunkin and Varda Bondy provided some very interesting data and discussion on these issues a few years ago as part of a Public Law Project report). However, a key part of the issue is the provision of (or lack of) legal aid. It is no secret that a few years ago, the legal aid scheme in the UK was amended and the provision of legal aid was cut in many instances. In his blog, Hickman provides the following analysis of legal aid in the context of judicial review:

Individuals can apply for legal aid. The most important thing about legal aid, at least as it applies in the field of public law, is not that it provides a source of funding for a person’s lawyers but because it comes with protection against an adverse costs order. It is for this reason that eagle-eyed readers of the law reports will have spotted that a large percentage of reported judicial review claims, in particular those that get to appellate levels, are brought by impecunious individuals acting on legal aid.

However, today very few people now qualify for legal aid. This in part because of substantial restrictions on the scope of cover. It is in part because of the means test. Those who have savings or other capital of over £8,000 (or £3,000 in immigration cases) are not eligible for legal aid, whilst those whose “disposable income” is over £733 per month are also not eligible for any legal aid. “Disposable income” means income after tax, NI and rent and therefore does not take into account council tax, bills and travel expenses, as well as all of a person’s personal expenses or mortgage contributions, for both that person and their family. In other words, people who have £169.15 or more per week for themselves and their family to live off, or who have any significant assets, do not qualify for legal aid. To put this in perspective, £165 is the rate for a single hour of a solicitor’s time of a Grade C fee earner in a London Grade 3 (outer London) solicitors firm.

This analysis is accurate, both in portraying the role of legal aid in judicial reviews and highlighting present restrictions. However, in the course of the blog, Hickman said that:

It is difficult to assess the size of the problem, although it is obviously very great. An attempt by Ravi Low-Beer of the Public Law Project, Professor Sunkin, Varda Bondy and myself to obtain information from the MOJ through FOIA that would identify the proportion of judicial review claims that are legally aided, brought by public bodies or companies, or that benefit from costs caps, has so far not met with any success. The MOJ response has been that it does hold such information but it is too costly to provide it.

There is no doubt truth in the comment that assessing the size of the problem is difficult without such data. Much helpful data is kept by the government, and FOIA requests can be frustrating too. That said, much of the key government-held data is published and much of what is available on government systems may be genuinely outside of the provisions of FOIA. However, I have managed to get data on legal aid in judicial review over the last ten years by way of a FOIA (available here). I do not hope to provide a full analysis of the data made available in this short post. To be clear, I do not want to make any claims at all. Instead, I just wanted to paint the general picture and draw some attention to some interesting parts of it.

The below table shows the total amount of applications for legal aid made in judicial review cases over the last ten years. One obvious contextual point to highlight is that the amount of granted applications is only a small portion of all judicial reviews (in the Upper Tribunal alone—where immigration judicial reviews are heard—there are now over 16,000 cases per year).

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The below chart puts these figures on a graph, with additional trend lines (the lines representing both granted and not granted applications). It is apparent from these graphs that the amount of applications granted have dipped post-LASPO.

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The below chart shows this same data but as a percentage (instead of by volume).

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The data is split into certain categories as it is recorded by the Ministry of Justice. These are not the most helpful categories and they are not the clearest, but they give some rough indication of which types of judicial reviews are legally aided. Unsurprisingly, immigration is the area where most applications are made and granted (immigration accounts for the vast majority of judicial reviews and is often seen as a challenging part of the public law system). The below table shows the breakdown by category in the last reported year.

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There is more scope to dig into the numbers here but this data sheds some light on the issues raised in Hickman’s important blogs. For a fuller analysis of the issues raised in those blog’s, there are many interconnected issues that need further research. We need, as mentioned above, more information on costs between parties, costs incurred by the Government Legal Department, unit costs of the government of running a judicial review, costs rules and principles, the role of crowdfunding, the role of insurers, what lawyers charge for, and many other issues. The Public Law Project is embarking on a project that will explore these issues – more details to follow on that in due course.