By Sara Lomri, Deputy Legal Director The right to challenge unlawful decision-making by public authorities is a vital constitutional safeguard, but the Government’s recent consultation on costs reform[1] indicates that it is ignoring one of the most serious financial obstacles people face when trying to exercise that right. Legal costs rules in England and Wales mean that people must not only fund their own lawyers if they want to bring a judicial review claim to hold state to account, they must also be prepared to pay the state’s legal costs if they lose[2]. Under the current system, most people do not have the means to bring a judicial review. This consultation was an opportunity to make judicial review more accessible. Unfortunately, the Government appears to have restricted the scope of its consultation right from the start by indicating that it will not implement Sir Rupert Jackson’s proposals to extend Qualified One Way Cost Shifting (QOCS) or the Aarhus rules to other judicial review claims[3]. As PLP’s consultation response explains[4], these are two practical mechanisms which can be used to limit the claimant’s costs, and thereby enhance access to justice. By indicating that it is not considering either of these policy proposals, the Ministry of Justice is failing to recognise that there are significant access to justice barriers which need to be addressed urgently. Instead, the Government is relying on the existence of Cost Capping Orders (CCOs) and legal aid as mitigation for any access to justice concerns. PLP’s view is that this reliance is misplaced. CCOs are only available once permission is granted, but by this point claimants have already committed to the risk of costs exposure. Additionally, CCOs are only available in public interest cases which, as we have seen from recent judgments, are narrowly defined[5]. Even then, claimants must be willing to take significant – albeit certain – financial risks (for example exposure up to £5,000 costs cap), which is prohibitive for many claimants7. Whilst legal aid is available for a small minority of people, large sections of society are prevented from accessing legal help because the financial eligibility tests for legal aid are so strict. As research from The Law Society has shown, people of modest means, the ‘Just About Managings’ and poor families, are also financially excluded by the unfair means rules.[6] We also know that less judicial review work is being funded by legal aid. Recent figures show that the legal aid spend on public law has fallen by approximately £3 million per year, which is a 33% reduction in overall spend, since the huge cuts to legal aid in 2013[7]. Those cuts also reduced the availability of legal services in certain geographical areas[8], so even claimants who are eligible for legal aid can find it very difficult to find a public law legal aid lawyer. ‘No win no fee’ – or Conditional Fee Agreements – have also been put forward as a way of supporting claimants, but they offer no protection from having to pay the other side’s costs. Another proposition is that claimants should use ‘After The Event’ insurance to pay for their opponents costs if they lose, but as PLP noted in is submission to Sir Rupert Jackson’s review, this is generally not available in judicial review (even though it is often used in personal injury claims). Crowdfunding is another option, but again, it is not suitable or viable in many Judicial Review cases, for example if the issue will not attract popular interest or if the claimant does not have the capacity or support to run a public funding campaign[9]. In any event, the right to challenge unlawful public body decision-making should not be predicated on an individual’s ability to mount a fundraising campaign. The Government’s indicated direction of travel is especially concerning given the weight of evidence that shows the real difficulties people face in using the law to uphold their rights and to challenge unlawful decisions. In 2018 there were 14% fewer judicial reviews brought in the High Court compared with 2017, which in turn was noted as the year with the lowest number of applications received since records were started in 2000[10]. Given what we know about the current climate and the impact of austerity policies, it seems unlikely that this fall is because fewer unlawful decisions are being made. The fact that the majority of the population cannot bring a judicial review claim has been called ‘a disgrace’ by academics[11]. This justice gap presents a serious threat to the integrity and transparency of our democratic system, but before it can be fixed, it needs to be properly explored and understood. Unfortunately, this consultation indicates that the Government may not think there is a problem at all[12], and has not yet indicated that it will carry out its own research. PLP’s view is the Government needs to undertake such research to better understand the nature of the costs barriers so that sensible, evidence-based policy reform can be effected. Our constitutional public law principles and access to the courts need active protection and support from the Government if they are to survive. Judicial review plays a vital role in preventing the abuse of power, but meaningful access to the courts and judicial review are essential to ensuring that public bodies obey the law. Failure to understand and measure the difficulties people face in accessing judicial review will have long term implications for the effectiveness of our constitutional safeguards. Those safeguards are needed now more than ever to protect individuals from executive over-reach and to ensure that our decision-makers act lawfully. We will be asking the Government to look again. [1] https://consult.justice.gov.uk/digital-communications/fixed-recoverable-costs-consultation/ [2] Explained in more detail in this PLP research paper, with examples of how much cases can cost at page 18 onwards https://publiclawproject.org.uk/content/uploads/2018/05/Financial-Barriers.pdf [3] Sir Rupert Jackson’s proposals and full report can be found here: https://www.judiciary.uk/publications/review-of-civil-litigation-costs-supplemental-report-fixed-recoverable-costs/ [4] https://publiclawproject.org.uk/latest/plp-response-to-frc-consultation/ [5] As confirmed in R (We Love Hackney Limited) v London Borough of Hackney [2019] EWHC 1007 (Admin) https://www.bailii.org/ew/cases/EWHC/Admin/2019/1007.html [6] https://www.lawsociety.org.uk/support-services/research-trends/legal-aid-means-test-report/ [7] Page 111 – 113 https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/777038/post-implementation-review-of-part-1-of-laspo.pdf [8] https://www.bbc.co.uk/news/uk-46357169 [9] See an explanation of the challenges of crowdfunding from page 22 in our PLP research paper https://publiclawproject.org.uk/content/uploads/2018/05/Financial-Barriers.pdf [10] https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/783876/civil-justice-statistics-quarterly-Oct-Dec-2018-bulletin.pdf [11] https://ukconstitutionallaw.org/2017/02/09/tom-hickman-public-laws-disgrace/ [12] See page 37 https://consult.justice.gov.uk/digital-communications/fixed-recoverable-costs-consultation/supporting_documents/fixedrecoverablecostsconsultationpaper.pdf