The 'Exceptionality' of Legal Aid: Affordable Access to Justice in Judicial Review

AuthorAmy Elizabeth Hemsworth
PositionUniversity of Oxford, GB
The ‘Exceptionality’ of Legal Aid: Affordable Access to
Justice in Judicial Review
Amy Elizabeth Hemsworth*
This article discusses the role of costs as a limitation on access to judicial review in the UK. Part
I assesses the series of financial hurdles to access currently faced by would -be judicial review
claimants, looking in particular at the impact of recent changes to the availability of legal aid
funding. Part II argues that affordable access to justice in general is necessary in order to ensure
that citizens’ rights will be properly respected by governments . Furthermore, access to justice in
the judicial review context is fundamental because judicial review offers citizens a way to stan d
up to the State to protect themselves and functions as a ‘remedy of last resort’ when all other
avenues for relief have been exhausted. Part III looks at the case law of the European Court of
Human Rights regarding the extent to which the availability of legal aid f unding is essential to
the safeguarding of human rights, as well as domestic case law concerning the affordability of
access to court, and applies this in the judicial review conte xt. The article argues that the right
approach to the granting of legal aid funding is that explained in Airey v Ireland, but that later
interpretations, particularly in UK law, have wrongly sought to narrow the principle stated in
this case in order to maintain that legal aid is only necessary for claimants in rare, ‘exceptional’
* Third-year Law with German Law student at Oxford University. The author would like
to thank Dr Joanna Bell for all of her help and support during the author’s work on this
article, as well as for inspiring t he author’s interest in administrative law in the first pla ce.
The author is also very grateful to Alex Gunn for endless proof-reading, writing advice,
and motivational phone calls.
Legal Aid: Affording Access to Justice in Judicial Review Vol. VI
Much has already been written about the cuts to legal aid funding in the UK
and about t he detrimental impact this has had on citizens’ access to justice.
Although this article will discuss why access to justice is important in general,
most of the piece will focus more specifically on why it is so significant i n the
context of judicial review, an area in which access has been s everely reduced in
recent years through funding cuts and other changes. I will explore the current
financial position of would-be judicial rev iew claimants in P art I in o rder to
provide the necessary context for the arguments made later on.
In Part II, I will ask: what is it that makes access to justice so fundamental?
I will argue that it is the fact that access to justice is necessary in order to protect
the enjoyment of citizens’ other rights and entitlements under the law; rather than
the fact that it is a right that serves an innate end or good in itself. This does not
mean that it can itself be treated as secondary, however. In fact, quite the opposite
is true. Access to justice is essential for the safeguarding of all other rights: rights
which are unenforceable in practice are merely illusory, and so the right which
protects enforceability must be of paramount importance. More specifically, in
the judicial review context, the role of access to justice as a safeguard is particularly
clear, given that judicial review, as the ‘remedy of last resort, functions as the
ultimate safety net to protect citizens against abuses by the State.
From this conclusion, Part III moves on to the next logical question: when
access to justice is so important, how can it have been allowed to suffer the
extreme attenuation discussed in Part I? I answer this by arguing that true access
to justice is far more comprehensive than is recognised in the hollow approach
preferred by recent UK governments. I will argue that enabling a satisfactory
degree of access to justice goes beyond the mere exist ence of courts and legal
procedures which citizens can only realistically and fairly us e if they can afford a
lawyer or have a law degree of their own. Rather, the right of access to justice
encompasses a right to legal advice and represe ntation, including the grant of
funding to this end, where it is unreasonable to expect an individual to be able to
pursue a claim on their own; a common state of affairs in modern judicial review.
I will examine some of the most significant case law concerning access to justice,

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT