On 30 April 2014 the Joint Committee on Human Rights (JCHR) - a cross-party parliamentary committee composed of MPs and peers - published its report on the totality of the Government’s judicial review changes, including those contained within the Civil Legal Aid (Remuneration) (Amendment) (No. 3) Regulations 2014. These are the regulations which brought into effect from 22 April 2014 the new payment regime for judicial review work under legal aid. You can read more about the changes here.
The JCHR report expresses a number of trenchant concerns about the package of reforms as a whole, including the conflict between the twin role of the Secretary of State for Justice as the Lord Chancellor and a Government Minister
"…the Lord Chancellor’s energetic pursuit of reforms which place direct limits on the ability of the courts to hold the executive to account is unavoidably problematic from the point of view of the rule of law"
They criticise the evidence base for the changes:
"We therefore do not consider the Government to have demonstrated by clear evidence that judicial review has “expanded massively” in recent years as the Lord Chancellor claims, that there are real abuses of the process taking place, or that the current powers of the courts to deal with such abuse are inadequate."
"We do not consider that the proposal to make payment for pre-permission work in judicial review cases conditional on permission being granted, subject to a discretion in the Legal Aid Agency, is justified by the evidence. In our view, for the reasons we have explained above, it constitutes a potentially serious interference with access to justice and, as such, it requires weighty evidence in order to demonstrate the necessity for it— evidence which is currently lacking"
They warn of the chilling effect of the changes:
"...the reform pushes too much risk onto providers, and creates too much uncertainty about the degree of such risk, causing a chilling effect on providers which will have a significant impact on access to justice because meritorious judicial review cases will not be brought
And they criticise the fact that the changes have been brought by secondary legislation:
"In our view, the significance of the measure’s implications for the right of effective access to court is such that it should have been brought forward in primary legislation, to give both Houses an opportunity to scrutinise and debate the measure in full and to amend it if necessary"
The JCHR concludes that the Regulations should be withdrawn and the changes introduced by means of the Criminal Justice and Courts Bill instead to ensure appropriate scrutiny.