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Value added: report rebuffs presumptions about judicial review

While UK Prime Minister David Cameron has led a recent attack over judicial review decisions and the cost of the process, a new report has found that restrictions to legal aid have harmed the process, judicial review itself has led to improved services by public bodies and clarified the law in 86% of cases.

With the UK government having stripped back legal aid provisions and increased the threshold required to bring judicial review cases in recent years, The Value and Effects of Judicial Review report, conducted by charity Public Law Project and the University of Essex, found ‘restrictions on legal aid are likely to have a disproportionate adverse effect on enabling those dependent on public services to obtain benefits to which they are legally entitled.’

However, having analysed 502 judicial review cases between 2010 and 2012, the report found that 86% of solicitors involved found their cases ‘to have contributed to clarifying the law, and in nearly as many cases, to creating a helpful precedent’. The research ‘did not indicate the existence of widespread abuse of the system by claimants seeking to use judicial review for public interest or political purposes’ in English and Welsh courts. Instead, the report states it adds value to the rights and interests of claimants, their experience of the legal system and development of the law.

The report rejected the ideas that growth in the use of judicial review has been largely driven by claimants abusing the system;  that judicial review is largely negative because it makes it more difficult for public bodies to deliver public services efficiently; and that it is an expensive process rarely altering decisions of public bodies.

The report found that judicial review ‘increased confidence in the legal system’ and that judgments ‘have significant impact in relation to policy, procedure, the clarity of the law, and human rights protection’. Even failed challenges were often considered to have led to improvements in the provision of services by public bodies and to more positive engagement between the parties.

The recent assault on legal aid, with the Government raising the threshold for cases to enter a full judicial review, has had a marked impact on the use of judicial review. The report, however, found that ‘legally aided claimants were more likely to have obtained tangible benefits from their claims than privately funded claimants’ as they are more reliant on public bodies.

Leigh Day administrative, public law and civil liberties partner Jamie Beagent told Legal Business: ‘There’s been a chipping away of judicial review that’s making it a more daunting prospect for claimants. The changes to legal aid mean that if you don’t pass the threshold to get a full hearing, then you won’t get paid. As lawyers you have to take a punt on that but with judicial review it is very hard to predict the decision. It’s making lawyers much more cautious and not willing to take on cases now the risk assessments are much more robust.’

Read the full report here.