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

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This article considers the effective exclusion of judicial review created by thetreatment of urgent applications for funding by the Legal Aid Agency. Drawing uponnew empirical evidence, I show that the recent approach of the Agency to urgentapplications for judicial review funding was presenting lawyers with a dilemma ofhaving 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 puta client at risk due to delay. It is very difficult, if not impossible, to extract—or evenconstruct through imagination—a satisfactory justification for why the administrationof a policy preference for a more restrictive legal aid system ought to incorporate adevice of this kind. Through this analysisfocuses on one small aspect of judicial reviewin practice, this article demonstrates the need for further and wider work onexclusions from judicial review. It also offers an example of the complex nature ofexclusions in judicial review. Finally, it provides some instructive lessons on thechallenges that further inquiry into exclusions of judicial review may encounter.
Original languageEnglish
Pages (from-to)252-262
Number of pages11
JournalJournal of Social Welfare and Family Law
Issue number2
Early online date21 Mar 2019
Publication statusPublished - 3 Apr 2019


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

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