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Permission required to ensure public funding in JR proceedings
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The Civil Legal Aid (Remuneration) (Amendment) (No. 3) Regulations 2014 came into force on 22 April 2014 with the effect that judicial review proceedings commenced on or after that day will not be funded unless: (a) the High Court or Upper Tribunal grants permission; or, (b) permission is neither granted nor refused and the Lord Chancellor considers that it is reasonable to pay remuneration in the circumstances of the case.
The operative provision is the following, inserted into the Civil Legal Aid (Remuneration) Regulations 2013:
5A.— Remuneration for civil legal services: judicial review
(1) Where an application for judicial review is issued, the Lord Chancellor must not pay remuneration for civil legal services consisting of making that application unless either the court—
(a) gives permission to bring judicial review proceedings; or
(b) neither refuses nor gives permission and the Lord Chancellor considers that it is reasonable to pay remuneration in the circumstances of the case, taking into account, in particular—
(i) the reason why the provider did not obtain a costs order or costs agreement in favour of the legally aided person;
(ii) the extent to which, and the reason why, the legally aided person obtained the outcome sought in the proceedings; and
(iii) the strength of the application for permission at the time it was filed, based on the law and on the facts which the provider knew or ought to have known at that time. […]
Notwithstanding that judicial review is the essential mechanism by which our unwritten constitution ensures that abuses of power by the executive are prevented and individual rights are protected, the risk of public law litigation is now to be met by claimant lawyers rather than the executive itself. Despite this, the Regulations were made pursuant to negative resolution procedure and consequently took effect without substantive Parliamentary scrutiny.
Given that judicial review is an inherently risky form of litigation, there is likely to be a substantial reduction in the number of providers willing to provide public law assistance in legally aided cases. This, in turn, is likely to have a substantially detrimental effect on access to justice and executive accountability.
For further information, see JUSTICE’s briefing paper.
The pro forma letter to use to invite the Legal Aid Agency (ed: “LAA”, or “LAA LAA” to its (few) friends) to exercise the Lord Chancellor’s discretion to pay remuneration where permission has neither been refused nor given is here.