Foundations for a ‘Secret History’ of Judicial Review: A Study of Exclusion as Bureaucratic Routine

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. Through this analysisfocuses 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.