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 takensuch as I touched on when I gave evidencethat
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
|