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Abstract

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 stand 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 funding 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 context. 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’ cases.

Keywords: legal aid, administrative law, judicial review, costs, access to justice, human rights

How to Cite: Hemsworth, A.E., 2021. The 'Exceptionality' of Legal Aid: Affordable Access to Justice in Judicial Review. LSE Law Review, 6(3), pp.255–277.