Checks and balances

The Government’s “chilling” judicial review reforms revive a centuries-old debate on the balance of power; the future of education and training at the Bar; and a way forward on criminal legal aid.

14 May will mark the 750th anniversary of the battle of Lewes, when Simon de Montfort and his fellow barons defeated Henry III and captured not only Henry, but also Henry’s son, the future Edward I.

De Montfort’s triumph was short-lived, since Edward escaped and defeated the rebel barons 15 months later at the battle of Evesham, where de Montfort was killed. Nevertheless, de Montfort used his victory to lasting effect, summoning what is regarded as the earliest forerunner of the modern Parliament, since it included representatives from each county and from various towns and cities.

The battle was an early, and bloody, phase in the centuries-old debate as to the proper relationship between the Crown, or the Executive, and the people, or their representatives. The proposition that the King and his government are subject to the law took a long time to be accepted. It was argued for in the Song of Lewes as follows:

The modern view is that the executive branch of government must act in accordance with the law and that the lawfulness of its actions is subject to review by the judges. Sadly, this Government is reducing the scope for people to seek judicial review of unlawful executive actions, both through the Criminal Justice and Courts Bill and through various statutory instruments which change the provisions governing legal aid for judicial review cases.

The proper balance between the Executive and Parliament is also at issue when one considers the appropriateness of using delegated legislation for this purpose.

Although statutory instruments are laid before Parliament, most do not result in a debate. The best that can usually be achieved is a debate on a motion that the House of Lords “regrets” the instrument in question.

Such a debate will take place this month, thanks to Lord Pannick, on the snappily titled Civil Legal Aid (Remuneration) (Amendment) (No. 3) Regulations 2014. These provide that legal aid will be unavailable for judicial review applications unless either: (a) the court grants permission to apply for legal aid; or (b) the Legal Aid Agency exercises its discretion after the event. On the Government’s own figures, this will affect up to 69% of cases. These include many successful cases, where the claimant obtains relief before the court even has to decide whether to grant permission. The experts’ consensus is that the regulations will have a “chilling effect” on judicial review applications.

May will also see a new Chairman of the Legal Services Board. We welcome Sir Michael Pitt and look forward to working with him. One issue in particular which is the subject of debate is the future of education and training for lawyers. The Bar Standards Board and its fellow regulators set up the Legal Education and Training Review. Two years’ work resulted in a 350-page report, published in June 2013. The report contained much food for thought, although the following statement (in para.2.175) is worth noting: “There is no evidence that the system, or any one professional regimen, is fundamentally ‘broken’. Indeed there is substantial evidence of the strength of the system, both from domestic and international viewpoints.” Nevertheless, the report has prompted all of the regulators to review their education and training arrangements, and in March the LSB published guidance on the “outcomes to be delivered” by regulators such as the BSB.

One central issue is that, while there needs to be a system which ensures that anyone starting practice at the Bar has had appropriate education and training to the necessary high standards, the cost currently involved can be a significant deterrent for students from less advantaged backgrounds and can result in much money being spent by students who either do not pass the course or are unable to find the pupillage which they seek. As a profession, we all need to apply our minds to this issue.

As I write, the Criminal Bar Association has just announced the results of its ballot. A clear majority expressed their view as to the way forward in dealing with the Government over its proposed changes to criminal legal aid. This followed the announcement on 27 March of the Government’s agreement that: (1) There would be a review of the Advocates Graduated Fee Scheme by summer 2015 “with an open mind”. (2) There would be no cuts to AGFS fees before summer 2015, which would allow time for consideration of the results of the Jeffrey review of the market for criminal advocacy services, the Leveson review of Crown Court procedure and the AGFS review. (3) Consideration would be given to alternatives to the Very High Cost Case scheme, including the GFS+ scheme proposed by the Bar Council.

I want to pay tribute to Nigel Lithman QC and Tony Cross QC of the CBA, to John Elvidge QC, Sarah Forshaw QC, AndrewLangdo n QC, Paul Lewis QC, Andrew O’Byrne QC and Mark Wall QC, the leaders of their respective Circuits, and to Alistair MacDonald QC, the Vice-Chairman of the Bar Council, for the leadership and determination which they have shown in recent weeks in dealing with this issue. It is now for the profession to engage with the Government on these various reviews.