Are Gypsies and Travellers being targeted by the Ministry of Justice? Part 2
By Chris JOHNSON, Marc WILLERS, Simon RUSTON
This Blog is in two parts. Part 1 looked at the proposals that may have a devastating effect on the ability of Gypsies and Travellers to challenge planning decisions in the High Court. Part 2 looks at how the government’s proposals on judicial review will detrimentally affect Gypsies and Travellers living on unauthorised encampments.
WHILST there remains a shortage of lawful sites for Gypsies and Travellers, many of them are forced to camp on unauthorised encampments (that is, on land they do not own and have no permission to be on). Those that do face continual eviction by local and other public authorities and can only challenge a decision to take such action if it is unlawful (e.g. because the local or public authority concerned has failed to follow government guidance about, amongst other things, making enquiries into such matters as health and education). Such challenges are normally brought in judicial review proceedings in the High Court. After a Gypsy or Traveller claimant has lodged a judicial review challenge with the High Court and the public authority has had a chance to lodge a written response, a judge will look at the papers and decide whether or not the claimant has an arguable case and should be given permission for the case to be heard at a full hearing.
In its original consultation paper, entitled Transforming Legal Aid, the Ministry of Justice (MoJ) proposed that it would not pay legal aid lawyers who took a judicial review unless the case was granted permission to proceed by a judge. However, it was pointed out by the majority of those who responded to that consultation paper that the proposal was grossly unfair because most judicial review cases settle successfully for the client prior to the permission stage being reached. For example, in a Gypsy or Traveller eviction case, the public authority might accept that it failed to make proper enquiries and might withdraw its decision to take eviction action and reconsider the position having undertaken the necessary enquiries.
In its latest consultation paper, entitled Judicial Review, proposals for further reform, the MoJ has adjusted its position slightly and now suggests that the Legal Aid Agency (LAA) should have the discretion to pay the costs of a claimant’s legal aid lawyers, having regard to a number of factors (at para 125):
The Government proposes to determine payment according to the following exhaustive list of criteria:
• The reason for the provider not obtaining a costs agreement (whether in full or in part) as part of any settlement, not seeking a costs order, or the court not awarding a costs order (whether in full or part). This will include consideration of the conduct of the provider under the pre-action protocol and in the proceedings;
• The extent to which the client obtained the remedy, redress or benefit they had been seeking in the proceedings;
• The reason why the client in fact obtained any remedy, redress or benefit they had been seeking in the proceedings;
• The likelihood, considered at the point the settlement is made (or the case is otherwise concluded), of permission having been granted if the application had been considered, whether from a specific indication in the proceedings by the Court or based on the strength of the claim at that point.
This new proposal is little better than its predecessor. At present legal aid lawyers spend much of their time challenging poor decisions made by the LAA and there can be no confidence that the LAA will exercise its discretion in a reasonable fashion in the future. If the new proposal is adopted then legal aid lawyers would have to take judicial reviews at risk (i.e. without knowing whether or not they will get paid). Given the low income generated by a legal aid practice and the rising cost of overheads, the result will be that many judicial review claims will not be taken by legal aid providers because they cannot afford to take the risk of not being paid.
As a consequence, Gypsies and Travellers living on unauthorised encampments will be left with no way of challenging unlawful decisions taken by local or other public authorities. Meanwhile, those authorities will be encouraged to resist any sensible settlement at an early stage safe in the knowledge that the lawyers acting for Gypsies and Travellers will probably not be able to afford to take the risk of issuing a judicial review claim. Bad decisions will continue to be made and will go unchallenged, making life even harder for Gypsies and Travellers without a lawful place to live in their caravans.
You can access the consultation paper Judicial Review: proposals for further reform at https://www.gov.uk/government/consultations/judicial-review-proposals-for-further-reform
We would encourage readers to put in their own responses to this consultation – the deadline is 1 November 2013.
Community Law Partnership will be producing a response to this consultation paper. If you would like to be sent a copy of this response contact Chris at the e-mail address below.
Chris Johnson (chrisjohnson@communitylawpartnership.co.uk) Travellers Advice Team (TAT) at Community Law Partnership (CLP) TAT operates a national Helpline for Travellers on 0121 685 8677, Monday to Friday 9.00 am to 5.00 pm
Marc Willers, Garden Court Chambers (marcw@gclaw.co.uk) Garden Court Chambers have a specialist Romani Gypsy and Traveller Team.
Simon Ruston, Ruston Planning Limited, Independent Planning Consultant specialising in Gypsy and Traveller work Simon can be contacted at simon@rustonplanning.co.uk or on 07967 308752/0117 325 0350
10 October 2013