Foundations for a ‘secret history’ of judicial review: a study of exclusion as bureaucratic routine

ABSTRACT

This article considers the effective exclusion of judicial review created by the treatment of urgent applications for funding by the Legal Aid Agency. Drawing upon new empirical evidence, I show that the recent approach of the Agency to urgent applications for judicial review funding was presenting lawyers with a dilemma of having to choose between three unhelpful options: risk doing work that was unpaid; refuse a case and put a client at risk; or wait for a decision before doing work and put a client at risk due to delay. It is very difficult, if not impossible, to extract – or even construct through imagination – a satisfactory justification for why the administration of a policy preference for a more restrictive legal aid system ought to incorporate a device of this kind. Though this analysis focuses on one small aspect of judicial review in practice, this article demonstrates the need for further and wider work on exclusions from judicial review. It also offers an example of the complex nature of exclusions in judicial review. Finally, it provides some instructive lessons on the challenges that further inquiry into exclusions of judicial review may encounter.

KEYWORDS:

• Legal aid
• judicial review
• administrative decision-making
• access to justice

Acknowledgments

I am indebted to Alison Pickup, Emma Marshall, and Katy Watts—all were involved closely with the empirical aspects of the research presented here. I am also grateful to Dr. Richard Kirkham and Dr. Stephen Daly for reading drafts of this article.

Disclosure statement

I was involved in supporting the legal team that assisted with R (Duncan Lewis Solicitors Ltd) v Director of Legal Aid Casework and the Lord Chancellor (2018).

Notes

1. Though settled, the case was proceeding as R (Duncan Lewis Solicitors Ltd) v Director of Legal Aid Casework and the Lord Chancellor (2018). The result was The Civil Legal Aid (Procedure) (Amendment) Regulations 2019 (SI No. 130).