Judges have slammed government plans to cut legal aid, but also criticised publicly funded lawyers who bring ‘unmeritorious’ public law claims, and proposed limiting legal aid in judicial review cases.

In a response to the government’s consultation on legal aid published last week, the Judges’ Council said public funding should be retained for most public law cases, but there should be ‘significant refinement’ to judicial review claims, particularly in immigration and asylum cases.

The lord chief justice Lord Judge, who authored the response on behalf of the judiciary, said the existing legal aid merits test does not effectively filter out unmeritorious claims.

Out of some 12,500 judicial review claim forms issued in the Administrative Court in 2010, Judge said around 7,500 concerned asylum and immigration. In the great majority of those cases, there had been an adverse decision by the secretary of state giving rise to an unsuccessful appeal to the Asylum and Immigration Tribunal or first-tier tribunal.

Judge said money spent on judicial review in these cases, which is the ‘second, or even third or fourth bite of the cherry’, was ‘largely wasted’.

He said: ‘Most claims fail. Most of the claims which fail are without merit, and many are wholly abusive of the court’s process.’

The judiciary recommended that in the majority of immigration and asylum cases, legal aid should only be available for an appeal to the first-tier tribunal.

Judge said that the intervention of publicly funded lawyers does not prevent unmeritorious claims being brought. ‘Often bad claims are advanced by lawyers, which an individual would not have thought of himself,’ he said.

The lord chief justice said several times a year, decisions of the Court of Appeal or Supreme Court on cases which raise questions of principle produce ‘scores or even hundreds’ of ‘hopeless’ claims, supposedly founded on the same principles.

He said such claims are ‘generally devised by lawyers’.

Judge added: ‘Publicly funded lawyers currently advance many unmeritorious claims which would not be advanced in the absence of such legal representation.’

To ensure legal aid is spent only on meritorious cases, Judge suggested certain categories of claim should be excluded from the scope of legal aid, subject to a means of identifying those that deserve to be publicly funded.

He said public funding should ‘plainly not’ be available for cases including: oral renewals of applications for permission for judicial review, when the judge who refused permission on the papers has certified the claim as totally without merit; challenges to state decisions when an alternative remedy is available; and challenges to state decisions which do not affect an individual’s vital interests or involve an abuse of power.

Of the cases that occur most frequently, Judge said legal aid should be available for claims including: first time asylum and humanitarian protection appeals to the first-tier tribunal and beyond; control orders; and committal for contempt.

The judiciary acknowledged that this more restrictive approach to the availability of legal aid in public law cases would lead to more claims being brought by litigants in person, but predicted that the overall number of claims would fall.

Criticising the government’s reforms, Judge warned that the proposals to cut fees and remove much of civil work from scope would lead to a ‘huge increase’ in unrepresented litigants, which would have a knock-on effect on the quality of justice and administration of the justice system.

He said the proposals would damage access to justice, undermine the work and viability of community advice agencies, and act as a disincentive for advocates to undertake publicly funded work.

Judge added that the proposals to remove clinical negligence from the scope of legal aid were not justified, as the victims are almost always vulnerable; the claims involve sophisticated and complex litigation beyond the ability of anyone to pursue as a litigant in person; and given the heavy financial outlay to get expert evidence to support claims, there was unlikely to be a viable alternative source of funding.

Judge expressed concern about the ‘excessive’ proportion of public money spent on a small number of very-high-cost criminal cases, but was critical of a number of the proposed cuts to payments for criminal work, which he said would mean talented advocates would no longer practice criminal law.

On the government’s plan to limit the use of leading counsel, Judge said there was already a reluctance among junior advocates practising in criminal law to apply for silk, because they ‘see no future for Queen’s Counsel in publicly funded criminal work’.

The judiciary’s full response can be seen on the official website.