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To ask the Secretary of State for Justice what assessment he has made, in calculating the likely costs or savings arising from his Transforming Legal Aid proposals, of the possibility of (a) increased applications for permission for judicial review and (b) increased applications for costs from public authority opponents, if lawyers are not paid unless permission for judicial review is granted; what the evidential basis was for that assessment; and if he will make a statement. [Official Report, 12 September 2013, Vol. 567, c. 13-14MC.]
At around £2 billion a year we have one of the most expensive legal aid systems of its type in the world. The consultation paper ‘Transforming Legal Aid: delivering a more credible and efficient system’, contained a range of measures aimed at reducing the cost of and promoting public confidence in the legal aid scheme, including a proposal that providers would only be paid for work on an application for permission to proceed with a judicial review if permission is granted by the court.
We are concerned that legal aid is currently being used to fund applications for permission for judicial review in weak cases which are unsuccessful and which have little effect other than to incur unnecessary costs for the public.
As part of our consultation we have published an impact assessment which is available at:
As noted in the impact assessment, under our proposal set out in the consultation paper the provider would need to make an assessment of whether the application is arguable and therefore permission should be applied for. There may therefore be a fall in permission applications made. This may reduce the number of cases the Legal Aid Agency (LAA) need to process and reduce the number of hours required in court for these cases with an associated saving for Her Majesty's Courts and Tribunal Service (HMCTS). We have also noted in our assessment that there is the potential for an increase in requests for reconsideration of the permission application at a hearing, or onward permission appeals to the Court of Appeal where permission has been refused, which may result in an impact on HMCTS from reconsidering the applications.
In both circumstances however this is unquantifiable as the behavioural response of providers and clients is unknown.
Regarding possibility of increased applications for costs from public authority opponents, it is already the case that providers should generally agree costs as part of a settlement or seek a costs order form the court, as they would if acting for a privately paying client. This is set out in paragraph 6.58 of the 2013 Standard Civil Contract General Specification.
The consultation closed on