Mythbusting the Minister - Judicial Review and Legal Aid

In a recent Telegraph article, Chris Grayling, the Lord Chancellor, attempted to justify his severe restrictions on legal aid available for Judicial Review (JR). He alleges that legal aid lawyers are exploiting JR in order to make a political point or to cynically enrich themselves. Unfortunately, the article was unhelpful. Here is our attempt to address some of these misgivings.

Myth #1: Judicial review claims are “designed to force the Government to change its mind over properly taken decisions by democratically elected politicians”

This statement appears to show a lack of understanding of how the British constitution works. The public elects Members of Parliament who then deliberate and vote on laws that dictate what government can and cannot do.

On the other hand, Ministerial posts are not elected positions. Mr Grayling himself was chosen for the position by the Prime Minister. As a member of the Cabinet, he is an appointed part of the Government. As a result of constitutional changes made under Labour, Mr Grayling is the first Lord Chancellor without a legal background.  Previous Lord Chancellors have usually been appointed after careers as some of the most senior and well-respected lawyers.  

Separation of powers, checks and balances

The British constitution provides for a separation of powers between the Government, Parliament and the Courts. Each body checks the other to ensure it does not act beyond its powers.

What JR is actually designed to do

Judicial Review is a means through which the Judiciary can review a Government decision to determine whether or not the Government has acted within the laws passed by our democratically elected politicians.

The doctrine of parliamentary sovereignty means that the Courts cannot override the laws passed by parliament, even in cases where there have been human rights violations. If a decision has indeed been properly taken, then there are no grounds for a Judicial Review claim.

Without an effective system of Judicial Review, there can be no way to ensure that the laws passed by Parliament actually bind the Government. JR ensures that this country is governed by the rule of law, no matter who forms the Government of the day.

Myth # 2: Judicial Review is just a tool for “left-wing lawyers”

The law is blind to political ideology. It must be applied equally and consistently. The motivation of a person bringing a Judicial Review claim has no bearing on the application of the law, and consequently, whether government actions are lawful or otherwise.

Mr Grayling’s repeated references to “left-wing lawyers” is troubling. They are potentially designed to infuriate Telegraph readers, reducing the hard work done by legal aid lawyers to secure the best outcomes for their clients to pure political activism, simply because the Government is the Defendant.

But Governments change, and if we must consider ideology, then there are plenty of “right-wing” JR cases. Claims against High Speed 2 have been brought by those impacted in the Tory heartlands of the South East. Many were concerned with the effect that HS2 would have on the value of their property; hardly the cause of “left wing” activists.

Similarly, in R (Jackson) v The Attorney General, a JR claim was brought by individuals opposed to the Labour Government’s ban on hunting with dogs. The Countryside Alliance is hardly a hotbed of Trotskyite agitation.

JR is a means through which people of all backgrounds and beliefs can challenge decisions made by the Government of the day, whatever its political stripe. A far cry from the narrow, “left wing” stereotype suggested in Mr Grayling’s article.

Myth # 3: Legal-aid lawyers are making frivolous applications for Judicial Review in order to milk the system

Legal aid lawyers earn considerably less that their counterparts in commercial and private law. They tend to choose this lower-paid work because they want to assist some of the most vulnerable people in their society, and quite properly hold the view that even criminals and prisoners should be dealt with in accordance with the law. This is a fundamental aspect of the British constitution.

Mr Grayling’s claims that legal aid law firms are bringing frivolous JR cases in a cynical plot to enrich themselves are misinformed. Legal aid is awarded to claimants for JR as a result of a decision from the Legal Aid Agency, itself a Government department. The LAA may reject an application for JR on the basis that the claim is unfounded.

The claim must next pass muster with the Courts, as the claimant will not be granted permission to bring a case if it is baseless or frivolous. The Legal Aid Agency and the Courts therefore already provide effective checks against the potential for lawyers to make unfounded applications for JR.

Unfortunately, Mr Grayling’s article in the Telegraph propounds the view that the Ministry of Justice has cut the legal aid budget with little regard for the consequences to access to justice, the rule of law and the British constitution.

- The views of members of Wainwright & Cummins’ Prison Law Department do not necessarily reflect those of the firm or the partners