Government's proposed reform of legal aid - Justice Committee Contents

Supplementary evidence from Sir Anthony May, President of the Queen's Bench Division, following the evidence session on 7 February 2011 (AJ 63)

You ask whether I have in mind a mechanism for making legal aid available for meritorious cases but not for those with no merit.

When I was first at the Bar, legal aid in civil cases was available for claims judged to have sufficient merit. The judgment was made by local Legal Aid Committees who scrutinised the claim and the material available to support it and who usually required a written opinion from counsel as to the merit of the proposed claim. This system worked well but it depended, I believe, on the gratuitous goodwill of the practising lawyers who served on the committees. It was also at a time when a judicial review challenge to the refusal of legal aid was unheard of. I imagine that such a general scheme would not be regarded as economically viable today.

If legal aid is to continue to be available for classes of civil claims (eg judicial review claims or asylum appeals), it may be appropriate for it to be available for the initial claim or the first appeal without a rigorous merits test. But a view could be taken—such as I touched on when I gave evidence—that legal aid should not automatically be available for a second attempt within the court system, where the first has failed, unless the court is persuaded that the second attempt has merit. Almost all emergency applications in the Administrative Court in asylum cases are at least second attempts where the first has failed. It could be regarded as proportionate and sensible if these did not attract automatic legal aid, but only of the initial (unsupported) application was successful, so that the case proceeded to a full merits hearing. The judge could then order legal aid funding for the permitted proceedings. The merits judgment for legal aid purposes would reside in the judge's decision to permit the case to proceed.

This is essentially what now happens in appeals in criminal cases to the Court of Appeal Criminal Division. The trial legal aid extends to an advice on appeal and the drafting of grounds of appeal. If the application for leave to appeal is refused, there is no legal aid for a subsequent renewal of the leave application, unless that application succeeds, in which case the court makes an order for legal representation at the subsequent appeal which usually includes the now successful application. If the renewed application fails, there is no public funding for it. This has the salutary effect of reducing the number of meritless renewed applications.

Consideration could also be given to extending this proposal to other instances where permission to proceed is required, especially for an oral renewal of a failed application. Permission is required to bring judicial review proceedings, or to appeal most first instance decisions in ordinary civil proceedings. A renewed application for permission to bring judicial review proceedings, where permission has been initially refused on paper, could be without legal aid unless the renewed application succeeds. The same could apply to any renewed application for permission to appeal in civil proceedings.

March 2011

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