Justice minister Lord Faulks told the House of Lords last week that ministers “firmly reject” the accusation that changes to the rules for payment of legal aid in judicial review cases will “undermine access to justice”.
“There is nothing novel about the principle of expecting providers to work at risk and receive remuneration only where it is established that their case is meritorious,” Lord Faulks said.
“A similar system has existed for some time in immigration and asylum Upper Tribunal appeals, where remuneration for a permission application is not paid where the application for permission is refused.”
The justice minister was speaking in response to a ‘motion of regret’ tabled by crossbencher and practicing barrister Lord Pannick at the passing of legal aid regulations which came into force on 22 April.
The change means that legal aid will only be payable where the court gives permission for judicial review proceedings to go ahead, subject to the Legal Aid Agency’s discretion.
MPs and peers on the Joint Committee on Human Rights (JCHR) attacked government plans to change the rules last month, saying they “lacked supporting evidence”.
Lord Faulks told peers that the government had modified the criteria that the agency would consider and “making it clear that these would be non-exhaustive factors that the Legal Aid Agency would take into account, in particular when considering all the circumstances of the case.
“That is important, as it will enable the agency to take into account the full range of circumstances in which a judicial review case may conclude prior to a permission decision.
“No two cases will be identical and the agency will necessarily need to look at the facts of each individual case in addition to the factors set out in the regulation.
“This provides the agency with greater flexibility to ensure that work on meritorious cases continues to be paid, which I hope all noble Lords will support. However, the corollary of this approach is that it would simply be impractical for guidance to be issued that attempts to cover all possible circumstances.”
The justice minister said that the government would respond in detail to the JCHR report and “most of the questions posed will be answered”.
Lord Faulks added that the rule change “did not abolish judicial review”, but limited, in very specific circumstances, the recoverability of legal aid.
However, Lord Pannick told peers earlier: “The legal aid regulations we are debating tonight are one example of many where the changes which this Lord Chancellor is imposing are far more damaging than any disease which they purport to treat.
“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 representation.”