In Defence of the Rule of Law
By CHRIS JOHNSON
Community Law Partnership
LORD Avebury and Baroness Whitaker accompanied by Chris Johnson from the Travellers Advice Team (TAT) had a meeting with Lord McNally in the Houses of Parliament on the 30th October 2013 to discuss the Ministry of Justice consultation paper: Judicial Review : Proposals for further Reform and the implications of this consultation for Gypsies and Travellers. Lord McNally listened carefully to what was said and asked pertinent questions. He asked for a summary of the submissions that had been made and this summary has been submitted to him. Here is that summary:-
We are grateful to Lord McNally for giving us the opportunity to meet him and put these submissions to him on 30th October 2013. At his request we have provided this summary of the submissions we put forward and we also mention certain other matters that were raised in the meeting.
We started with a quote from former Lord Justice of Appeal, Stephen Sedley: In the round, judicial review is an economic and effective branch of litigation performing a constitutionally critical role in keeping the exercise of public power within the law, and legal aid for it is for the most part money well spent.
Planning
Under the proposals there are two ways in which Gypsies and Travellers who are trying to get planning permission for their own land might be stopped from receiving legal aid for a planning appeal to the High Court.
Specialist property chamber of the Upper Tribunal
The rationale behind this proposal is to cut down on delays caused to large developments. This is perfectly acceptable but individuals who need to take appeals should be excluded from this transfer since there is no legal aid for tribunal representation.
It might be said that the ‘safety net’ of exceptional funding under the Legal Aid, Sentencing and Punishment of Offenders Act (LASPOA) 2012 s10 is available to such individuals. However figures from the Legal Aid Practitioners Group show that, at the beginning of September 2013 (the new scheme having commenced in April 2013), out of 635 applications across England and covering all areas of law, only 11 had been granted. A Freedom of Information Act (FOIA) request by Community Law Partnership (CLP) revealed that only one grant was for a Housing Law case (Gypsy and Traveller cases come under this umbrella).
The simple fact is that the vast majority of our clients will not be able to represent themselves: the literacy problems in the Gypsy and Traveller community are well known; many have not had a formal education or very little formal education; the law and procedures are extremely complex even if you have had a formal education.
Town and Country Planning Act 1990 sections 288 & 289
The bald proposal to remove legal aid from such cases seems to target Romani Gypsies and Irish Travellers since it is very difficult to imagine which other individuals might receive legal aid for such appeals. CLP have put in a FOIA request on this issue.
Lord McNally informed us at the meeting that the Department for Communities and Local Government (DCLG) feel that the processes in place ( involving planning inspectors and sometimes the Secretary of State himself) are sufficient to guarantee good decisions without the necessity of an appeal process. We responded as follows:
(i) There are many successful appeals (see the Moore v Secretary of State for Communities and Local Government case as just one good example) – so the process cannot be quite so sufficient as is stated;
(ii) No doubt county court judges, high court judges and others carry out careful and detailed processes – yet there is an appeal mechanism against their decisions – why should Gypsies and Travellers yet again be singled out as not being entitled to have an appeal process? (iii) What if the local authority appeals to the high court against the inspector’s decision in favour of the Gypsy or Traveller concerned – if the Gypsy or Traveller is not represented, the local authority are much more likely to succeed in their appeal.
If the Gypsy and Traveller concerned are successful, then their accommodation problems are resolved. This will have significant knock on implications on education, healthcare, job opportunities etc. On the other hand, if they are not successful they will end up on roadside encampments which involve expense for taxpayers in terms of eviction actions by local authorities. So, at the end of the day, there are not really any costs savings if legal aid is removed for such cases.
Judicial review
The fact is that most cases settle before permission is dealt with and that settlement is usually favourable to the claimant.
Any such settlement does not mean that the claimant will get his/her costs. The public authority concerned might say they will settle but without conceding that the grounds of claim were justified.
This has led to the proposal that the Legal Aid Agency (LAA) should have a discretion to pay the costs when the case settles before permission is dealt with but without a costs award in favour of the claimant. Due to the way the LAA have dealt with exceptional funding applications and other matters, legal aid practitioners have absolutely no confidence that the LAA will grant costs in such cases.
Judicial review holds public authorities to account, leads to better decision making and leads to the removal of unlawful policies and practices.
Conclusion
Removal of legal aid in these cases (either directly or because legal aid lawyers will not be able to take the risk of running a case) will inevitably mean that many individuals in dire circumstances will be denied the right to a fair hearing and that unlawful actions and decisions by local authorities will go unchecked. These proposals will have a disproportionate impact on Gypsies and Travellers.
Other matters raised at the meeting
We are not aware of any local authority that has complied with the requirement on local authorities for a five year deliverable supply of sites, which was meant to be in place by March 2013( Planning policy for traveller sites refers). The problem is there is no power of direction any longer.
In contrast the existence of the duty to provide sites under the Caravan Sites Act 1968 between 1970 and 1994 led to the creation of the 350 local authority sites in England that we have today.
The consultation has now concluded (at midnight on Friday 1st November 2013) and CLP have put in their submission which you can find on our website at:-
http://www.communitylawpartnership.co.uk/noticeboard/campaigns-and-consultations.
Hundreds of submissions will have gone in, of course. In terms of submissions dealing with Gypsy and Traveller issues, we also recommend the submissions from Garden Court Chambers Housing and Civil Teams which can be accessed at:-
http://www.gardencourtchambers.co.uk/news/news_detail.cfm?iNewsID=879
Chris Johnson (chrisjohnson@communitylawpartnership.co.uk)
10th November 2013
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