Proposed Changes to Judicial Review in the UK.

We are delighted to welcome this guest post by Maeve O’Rourke. Maeve is a barrister at Thomas Bingham Chambers, 33 Bedford Row. Maeve is the 2013 Pro Bono Lawyer of the Year and is also this year’s recipient of the Forgotten Irish Award. Maeve’s previous guest posts for Human Rights in Ireland can be viewed by using the search tool on this page.

The UK Government’s Consultation on “Judicial Review: Proposals for Further Reform”  closed on 1st November 2013.

One of the most contentious aspects of the Consultation Paper is the proposal in Chapter 4 to amend the test for standing to prevent groups or individuals who are not “directly” affected by an alleged unlawful decision from bringing a claim for judicial review.

In its current form, the “sufficient interest” test for standing is crucially balanced to avoid abuse whilst ensuring that it does not act as a licence for unlawful executive action in the absence of a “directly” affected claimant.

The Government’s proposal means that groups which collectively represent the views of individuals, and which previously have brought – and won – judicial reviews in areas of public importance, will have their hands tied in the face of potential unlawful Government behaviour. Even where they are the only ones with the ability or expertise to bring a claim, they will be barred from acting to uphold the rule of law.

Throughout this Consultation Paper and the recent Transforming Legal Aid Consultation, the Government has proposed measures which will decimate the access of “directly” affected individuals to judicial review. The proposals on standing will consolidate that attack, ensuring that as fewer individuals are able to bring claims in their own right, civil society is simultaneously prevented from stepping in to fill the void.

Under the current “sufficient interest” test, the more public interest that attaches to judicial scrutiny of the subject matter of the application, the less directly affected the claimant may need to be. When considering an application by an interested individual or group, the courts also ask themselves whether there is a more appropriate claimant than the one asserting standing.

Therefore, permission tends to be granted to representative groups or individuals where the claim might otherwise not have been brought and it is in the public interest – and the interest of the rule of law – that it should be.

The rationale for this approach was stated by Lord Diplock in R v Inland Revenue Commissioners ex p NFSSB [1985] AC 617 as follows:

“It would, in my view, be a grave lacuna in our system of public law if a pressure group…or even a single public-spirited taxpayer were prevented by outdated technical rules of locus standi from bringing the matter to the attention of the court to vindicate the rule of law and get the unlawful conduct stopped…It is not…a sufficient answer to say that judicial review of the actions of officers or departments of central government is unnecessary because they are accountable to Parliament for the way in which they carry out their functions. They are accountable to Parliament for what they do so far as regards efficiency and policy, and of that Parliament is the only judge; they are accountable to a court of justice for the lawfulness of what they do, and of that the court is the only judge.”[1]

Hence, the World Development Movement was allowed to pursue a successful application against a decision of the Home Secretary regarding overseas development which was unlawful and “so economically unsound that there is no economic argument in favour of the case”, in circumstances where there was no other likely challenger.[2]

Greenpeace was allowed to challenge a decision of the Inspectorate of Pollution to authorise the discharge of radioactive waste from Sellafield on the basis that 2,500 of its supporters came from the Cumbria region and if Greenpeace were denied standing, those it represented might not have an effective way of bringing the issue before the court.[3]

Maya Evans was allowed to challenge the Government’s practice of transferring suspected insurgents to the Afghan authorities during UK operations in Afghanistan. It was “with hesitation” that the Court of Appeal ultimately rejected her claim in a 327-paragraph judgment which revealed that there was “plainly a possibility of torture or serious mistreatment” at some facilities.[4] Clearly, those “directly” affected could not have brought this challenge themselves.

By proposing that the absence of a “directly” affected claimant should automatically allow the Government to avoid judicial review, the Consultation Paper is, in effect, suggesting a licence for unlawful executive action.

The Government has provided no coherent evidence to justify its proposals.

The case study which the Consultation Paper proffers as an example of “the inappropriate use of judicial review as a campaign tactic” was a claim brought by a classic “directly” affected individual, not a representative group.[5]

The Government does not say that NGOs, charities, pressure groups and faith organisations are clogging up the courts.[6]

Nor does it argue that claims by representative groups are largely “unmeritorious”. According to the Consultation Paper, judicial reviews by representative groups are “relatively successful compared to other JR cases”.[7] Of the 20 applications that are granted permission annually, a majority are either successful at final hearing or are withdrawn (which, the government concedes, often means they settle in favour of the claimant).[8]

The Government’s real concern may be that these cases are too likely to succeed. If that is the true rationale, it is difficult to imagine a greater affront to the rule of law.

[1] R v Inland Revenue Commissioners ex p NFSSB [1985] AC 617 at 664E

[2] R v Secretary of State for Foreign and Commonwealth Affairs, ex parte World Development Movement Ltd [1995] 1 WLR 386

[3] R v HM Inspectorate of Pollution and Ministry of Agriculture, Fisheries and Food ex p Greenpeace Ltd [1994] 4 All ER 329

[4] R (on the application of Maya Evans) v Secretary of State for Defence [2010] EWHC 1445 (Admin)

[5] See Consultation Paper, page 6. R (Coleman) v The London Borough of Barnet Council & Anor [2012] EWHC 3725 (Admin). The claim was against planning permission and was brought by a man with a disability who lived within walking distance of the land in question and had been a weekly visitor to the garden centre that had previously occupied it for over 24 years.[5]

[6] . On the Consultation Paper’s own figures, applications by these groups accounted for 0.4% of all claims in 2011.

[7] Consultation Paper, para 78

[8] Consultation Paper, para 12

Proposed Changes to Judicial Review in the UK.

Cuts to Legal Aid in England and Wales and Access to Justice for Migrants

We are delighted to welcome this guest post by Sheona York. Sheona is a Clinic Solicitor at the Kent Law Clinic  which is based at Kent Law School.

The recent and proposed cuts to legal aid in England and Wales represent a profound attack on the rule of law. The proposed cuts will significantly limit access to criminal legal aid, and virtually abolish legal aid for migrants and non-EU citizens seeking to redress alleged civil wrongs, including people suing the Government for alleged wrongful treatment at the hands of British state actors overseas. This blog outlines key problems with the proposed cuts from the perspective of migrants. Continue reading “Cuts to Legal Aid in England and Wales and Access to Justice for Migrants”

Cuts to Legal Aid in England and Wales and Access to Justice for Migrants

Transforming Legal Aid in the UK

We are delighted to welcome this guest post from Lucy Welsh. Lucy is a criminal defence solicitor in Canterbury, England. She is also currently completing her PhD on the issue of legal aid in the criminal justice system and teaches criminal law at the University of Kent. 

The system of legal aid in criminal proceedings exists to avoid defendants being presented as the victim of persecution by an overbearing state. The adversarial process assumes that the parties can access broadly comparable resources. Art. 6 of the European Convention on Human Rights protects this position by guaranteeing access to legal advice in criminal proceedings (to be state funded if necessary), by stating that advice must be adequate and that there must be sufficient resources for a defendant to be able to prepare his/her case.  In the UK, however, the government has focussed on value for money in administering this system, ignoring political debate about what actually constitutes value in specific circumstances. It is against this background that the Ministry of Justice recently released its consultation paper on Price Competitive Tendering (PCT). Continue reading “Transforming Legal Aid in the UK”

Transforming Legal Aid in the UK

Human Rights and the Irish Government's Legislative Agenda 2012 and Beyond

The Department of An Taoiseach has published the overly ambitious legislative agenda for the current Dáil and Seanad session. The Immigration, Residence and Protection Bill 2010 will (hopefully!) be heading to Committee Stage this term. The 2010 Immigration Bill has been around in essence since 2006, and will unlikely be coming into force for some time to come yet, despite severe need for fundamental reform of Ireland’s immigration and asylum laws.  Previous blog posts have discussed concerns with the 2010 Bill and its provisions, as well as noting the severe delays in debating this bill [see, here, here and here].  In the immediate future, a number of significant bills are expected be published that will engage Ireland’s human rights obligations under domestic, European and international human rights law. Of particular note in this regard will be establishing the DNA database (see Vicky’s Blog Carnival posts on DNA databases) and reforming the law on mental capacity (see Law Reform Commission’s report here and Human Rights in Ireland contributions to the wider capacity debate here).

A large number of other  Schemes/Heads of Bills are currently being drafted up as bills, in particular as regards criminal justice issues, corruption Continue reading “Human Rights and the Irish Government's Legislative Agenda 2012 and Beyond”

Human Rights and the Irish Government's Legislative Agenda 2012 and Beyond

Pre-Trial Detention & Legal Aid in Malawi

HRiI is delighted to welcome this guest post from Sonya Donnelly, a barrister-at-law and law tutor, who will be working as a programme lawyer on pre-trial detention with the Department of Justice of Malawi in the Legal Aid Department. Sonya’s book (with Sarah Carew) The Devil’s Handbook was recently published by Round Hall.

Later this week I will be leaving these fair shores to spend a year in Malawi working on an access to justice and prison reform project with Pamodzi Promoting Rule of Law, a non-profit Rule of Law charity established by the Law Society and Bar Council. Myself and my two colleagues, barrister Ruth Dowling and solicitor Carolann Minnock, will be based in Lilongwe and partnering with the Ministry of Justice Legal Aid Department, the Department of Public Prosecutions and the Paralegal Advisory Service (PASI).  The project is focusing on increased access to Legal Aid for those within the Criminal Justice system, with particular emphasis on pre-trial prisoners. On any one day there might not be a qualified legal person in a criminal court, with a policeman acting for the Prosecution, the defendant unrepresented and Magistrate might not be in any way qualified legally. Our project will ensure the Rule of law is upheld in the Criminal Courts.  It is believed that increasing access to legal services will ensure a greater number of prisoners are released on bail, while also decreasing the time spent by those on remand.  Crucially, we are hoping to ensure that prisoners are monitored so cases are processed quickly, fewer become lost in the system and that legal representation will also result in a decrease of those  wrongly convicted.

Defendants in Malawi face physical, financial and language barriers to legal representation. Most live in remote rural areas on an income of approximately $1 per day, and do not speak English – the language of the court. With no representation defendants are often held in custody for years, until a trial court acquits or sentences them, often far longer than the maximum sentence allowed for the offences they are alleged to have committed.  Dockets are regularly misplaced Continue reading “Pre-Trial Detention & Legal Aid in Malawi”

Pre-Trial Detention & Legal Aid in Malawi

Launch of TrustLaw Women

A new free legal service for women has been launched by the Thomson Reuters Foundation. TrustLaw Women aims to provide free legal assistance, news and information on good governance and women’s rights.   It is part of wider network called TrustLaw which aims to:

  • Spread the culture and practice of pro bono work around the world, connecting those who need legal assistance with lawyers willing to work at no cost
  • Offer a one-stop shop for news and information on good governance and anti-corruption issues
  • Offer a similar one-stop shop on women’s rights issues

As part of the launch TrustLawWomen has released a survey of the most dangerous places in the world to be a women. At the top of the list was Afghanistan followed by  Democratic Republic of Congo, Pakistan, India and Somalia.

The website is extremely detailed with much information and detail of the types of rights and governance issues faced by women across the world. It aims to make it more straightforward ‘for organisations with limited means to access free legal assistance and simpler for lawyers to engage in high impact pro bono work.’ This appears to be an extremely worthwhile project which utilises both new technology and the goodwill of legal professionals in a constructive and positive manner.

Launch of TrustLaw Women

Guest Post: Legal Aid Cuts, Law Schools and Law Students

Human Rights in Ireland is delighted to welcome this guest post from Larry Donnelly. Larry is currently the manager of Public Interest Law Alliance (PILA). He is on leave from his post as Lecturer & Director of Clinical Legal Education at NUI Galway. Larry is also an Attorney at Law.

An interesting article in yesterday’s (31st March) Guardian by Alex Aldridge highlights a further, perhaps unanticipated, consequence of the ruthless cuts to legal aid in the United Kingdom: an increased demand on the pro bono services of law students.  As the article points out, clinical legal education, already a core part of the curriculum in many law schools around the globe – from the United States to China – has grown significantly in popularity in UK law schools in recent years. Clinical legal education, though amenable to broad definition and embodied in a diverse range of programmes internationally, provides law students with practical experience of how the law works in the “real world” and instills in them a sense that law can be used to further the public interest and the cause of social justice.  Continue reading “Guest Post: Legal Aid Cuts, Law Schools and Law Students”

Guest Post: Legal Aid Cuts, Law Schools and Law Students

HRinI Blog Symposium on Carmody v Minister for Justice, Equality and Law Reform (2009)

Today on Human Rights in Ireland we are delighted to host our first Blog Symposium. Today’s symposium focuses on the Supreme Court’s recent decision in Carmody v Minister for Justice, Equality and Law Reform [2009] IESC 71.

In this case Carmody argued that the lack of a statutory or other right to free legal aid for representation by a barrister in the District Court was both unconstitutional and incompatible with the European Convention on Human Rights, pursuant to the ECHR Act 2003. The relevant statutory provision is s. 2, Criminal Justice (Legal Aid) Act 1962, which provides:

(1) “If it appears to the District Court –

(a) that the means of a person charged before it with an offence are insufficient to enable him to obtain legal aid, and

(b) that by reason of the gravity of the charge or of exceptional circumstances it is essential in the interests of justice that he should have legal aid in the preparation and conduct of his defence before it, the Court shall, on application being made to it in that behalf, grant in respect of him a certificate for free legal aid (in this Act referred to as a legal aid (District Court) certificate) and thereupon he shall be entitled to such aid and to have a solicitor and (where he is charged with murder and the Court thinks fit) counsel assigned to him for that purpose in such manner as may be prescribed by regulations under section 10 of this Act.

(2) A decision of the District Court in relation to an application under this section shall be final and shall not be appealable.

As is clear from the terms of this section the only situation in which the statute permitted appointment of counsel by means of legal aid in the District Court was where the charge was one of murder and the Court thought it fit to appoint a barrister, and exception that was essentially redundant.

Although it did not find that s. 2 was unconstitutional. the Court held that “the denial of an opportunity to apply for and be granted, where appropriate” legal aid for the appointment of counsel in the District Court “is a denial of a constitutional right” and that “the appellant in this case cannot be tried unless and until he is afforded an opportunity to apply for legal aid to include solicitor and counsel and have that application determined on its merits having regard to the considerations referred to in this judgment”.

In today’s symposium we present four different perspectives on this judgment, all focusing on different issues:

  1. Noeline Blackwell, Director General of FLAC, writes here about the problems and puzzles presented by Carmody from a practical perspective
  2. Liam Thornton of the University of Ulster and (of course) HRinI, writes here about the right to free legal aid as founded in the European Convention on Human Rights
  3. Fiona de Londras of University College Dublin and (of course) HRinI writes here about the treatment of ECHR arguments in Carmody and, particularly, about the question of sequencing as between constitutional and Convention arguments
  4. Paul Daly of the University of Cambridge (and currently visiting at Harvard) writes here about the potential for the Supreme Court to have used s. 2 of the ECHR Act 2003 [the interpretive section] in this case and hypothesises as to how the UK Supreme Court might have approached an analogous question.
HRinI Blog Symposium on Carmody v Minister for Justice, Equality and Law Reform (2009)

Proposed Changes to the Criminal Legal Aid Scheme

DJELRIn the last week, Irish newspapers (Irish Times (here, here, here and here) and Irish Independent, here) have reported on potential cuts to the scheme of criminal legal aid. The rationale for these cuts is to curb the escalating costs of criminal legal aid. The proposed plan, under a new Criminal Legal Aid Bill, aims to allow Gardaí have access to a defendant’s Personal Public Service Number to ensure that he or she does not have the means to employ his or her own solicitor. The Free Legal Advice Centres (FLAC) have stated that any changes to the criminal legal aid scheme should preserve the right to “real and effective justice”. FLAC have warned the Minister for Justice, Equality and Law Reform, Mr. Dermot Ahern T.D. that changes should not lead to an ineffective and bureaucratic administration of the scheme of criminal legal aid.  The main opposition party in Dáil Eireann (the Irish lower house of parliament), Fine Gael, have welcomed the move. Writing in the Irish Times, the legal affairs editor, Carol Coulter, has warned that the savings achieved will “not produce a pot of gold”. Ms. Coulter notes that the vast majority of recipients’ of criminal legal aid are social welfare claimants, and the introduction of new means tests within this sphere may in fact lead to delays in the administration of justice.

EcTHR 2Questions do arise as to the extent to which it may interfere with a right to a fair trial. Article 6(3)(c) of the European Convention on Human Rights provides that a person who does not have sufficient means to pay for legal assistance, should be provided with such assistance “when the interests of justice so require”. The European Court of Human Rights (ECtHR) has decided that in criminal cases a defendant must not be placed at a substantial disadvantage vis-a-vis his/her opponent (Dombo Beheer v Netherlands, para. 33).

The new proposals may also result in the delay of criminal trials, given that judicial reviews of a District Court judge’s decision to not grant legal aid may be brought by the defendant. The ECtHR will assess whether the delay is reasonable having regard to the complexity of the case, the conduct of the applicant and the relevant State authorities and the importance of what was at stake for the applicant in the litigation (see, Barry v Ireland, para. 36). It is therefore not beyond the realms of possibility that due to protracted litigation relating to the right of a defendant to be granted criminal aid, breaches of Article 6(3)(c) could not be ruled out. In relation to delay, (although not dealing in any respects with the right to criminal legal aid), the Irish Supreme Court in McFarlane v Director of Public Prosecutions [2008] IESC 7 (05 March 2008) held that there was no violation of Article 6 ECHR, where a delay of six years and four months in attempts to start the prosecution.  The defendant had taken judicial review proceedings in an attempt to prevent the prosecution. Mr. Justice Kearns noted that there was no blameworthy prosecutorial or systemic delay in the case.

It remains to be seen whether this proposal will become law, and whether this will result in delays in the prosecution of alleged offences.

Proposed Changes to the Criminal Legal Aid Scheme