1 Introduction
1. This Report scrutinises three Government proposals
that amend the provision of legal aid funding: the proposed introduction
of a residence test for civil legal aid claimants, so as to limit
legal aid to those with a "strong connection" with the
UK; the proposed restriction on the scope of legal aid available
to prisoners; and the proposal that legal aid should be removed
for all cases assessed as having "borderline" prospects
of success.
2. The inquiry initially focused also on the proposal
that providers of legal services in applications for judicial
review against public bodies should only be paid for work carried
out on an application for permission, if permission is granted
by the Court. Following publication of the Government's further
consultation paper, Judicial Review—Proposals for further
reform,[1] we are conducting
a separate inquiry into this proposal. We expect to publish that
Report in early 2014.
Legal aid
3. The right of poor persons to sue in forma pauperis
is of very ancient origin. In the past legal aid was granted
in the High Court and the Court of Appeal under rules of court to
persons unable to pay the cost of civil litigation. The right
to litigate in forma pauperis was abolished by the Legal
Aid and Advice Act 1949 in respect of proceedings in all courts
in England and Wales except the Judicial Committee of the Privy
Council.
4. A new publicly-funded system for assisting persons
of small or moderate means, by making both legal aid and legal
advice more readily available, was introduced by the Legal Aid
and Advice Act 1949, which was replaced by the Legal Aid Acts
1974 and 1979. Originally covering family law cases, legal aid
evolved to cover a wide range of cases, most notably criminal
cases. Those Acts were in turn replaced by the Legal Aid Act 1988,
the purpose of which was to establish a new framework for the
provision of legal advice, assistance and representation, with
a view to helping persons who might otherwise be unable to obtain
advice, assistance or representation on account of their limited
means.
5. The 1988 Act removed administration of the legal
aid scheme from the Law Society and it became the responsibility
of the Legal Aid Board. The 1988 Act was repealed and replaced
by the Access to Justice Act 1999, subject to certain transitional
provisions. Civil legal aid and criminal legal aid were replaced
by, respectively, the Community Legal Service and the Criminal
Defence Service. The Legal Aid Board was replaced by the Legal
Services Commission.
6. Further reforms, both statutory and non-statutory,
which have taken place since the Access to Justice Act 1999 came
into force, have largely focused on a more market-based approach.
These follow the recommendations made in the 2006 Carter Report
and the Government's response to it.
7. The Legal Aid, Sentencing and Punishment of Offenders
Act 2012 (LASPO Act) provides for further reforms of the legal
aid system and the funding of legal services. Section 1 gives
the Lord Chancellor overall responsibility for legal aid. Section
13 requires initial advice and assistance to be made available
to individuals who are arrested and held in custody at a police
station or other premises if the Director of Legal Aid Casework
has determined that the individual qualifies for advice and assistance.
'Criminal proceedings' are defined by section 14, and under section
15 the Lord Chancellor may prescribe in regulations when advice
and assistance must be available to individuals in connection
with criminal proceedings. Section 27 makes provision about an
individual's choice of provider of criminal and civil legal aid.[2]
Legal aid reform
8. In 2010 the Government announced that it would
'carry out a fundamental review of the legal aid scheme to make
it work more efficiently.'[3]
On 15 November 2010 the Government published Proposals for
Reform of Legal Aid in England and Wales. This consultation
sought views on a range of legal aid reforms, and fed into certain
measures in the LASPO Act.
9. On 1 April 2013 the LASPO Act came into force.
The Act amended the way that civil legal aid funding is awarded
and limited the scope of issues eligible for civil legal aid funding.
Cases that commenced prior to 1 April 2013 remain covered by the
Access to Justice Act 1999 scheme.
10. From 1 April 2013, the 2013 Standard Civil Contract
outlines the provision for family, immigration and asylum, and
housing and debt cases. Other cases are provided for in the 2010
Standard Civil Contract or they are no longer within scope for
legal aid funding.
11. Lawyers must now go through the following set
of questions before taking on a client intending to receive legal
aid funding for the service:
a) Is the case within the scope of the legal
aid scheme?
b) Must the client go through the telephone gateway?
c) Is the case covered by the provider's contract?
d) Do you have sufficient matter starts[4]
to be able to take the case?
e) Is the client financially eligible?
f) Does the client pass the merits test?
g) Is there any other reason why you cannot take
the case?[5]
12. Schedule 1 of the LASPO Act outlines what cases
are within scope for funding. Section 10 of the LASPO Act makes
provisions for "exceptional cases". This allows for
certain cases to retain funding where an issue is out of scope
(not included in Schedule 1). All decisions on exceptional cases
are made by the Legal Aid Agency (LAA). LASPO sets out the test
for determination of exceptional funding in Section 10 (3) (a)
or 10 (3) (b):
3) For the purposes of subsection (2), an exceptional
case determination is a determination—
(a) that it is necessary to make the services
available to the individual under this Part because failure to
do so would be a breach of—
(i) the individual's Convention rights (within
the meaning of the Human Rights Act 1998), or
(ii) any rights of the individual to the provision of legal services
that are enforceable EU rights, or
(b) that it is appropriate to do so, in the particular
circumstances of the case, having regard to any risk that failure
to do so would be such a breach.
For an exceptional case to be funded the client must
also qualify for legal aid under the financial eligibility criteria
and the merits criteria.
13. Guidance has been provided by the Lord Chancellor
regarding exceptional funding.[6]
The Guidance for non-inquest cases makes clear that exceptional
funding should be used for rare cases:
The purpose of section 10(3) of the Act is to
enable compliance with ECHR and EU law obligations in the context
of a civil legal aid scheme that has refocused limited resources
on the highest priority cases. Caseworkers should approach section
10(3)(b) with this firmly in mind. It would not therefore be appropriate
to fund simply because a risk (however small) exists of a breach
of the relevant rights. Rather, section 10(3)(b) should be used
in those rare cases where it cannot be said with certainty whether
the failure to fund would amount to a breach of the rights set
out at section10(3)(a) but the risk of breach is so substantial
that it is nevertheless appropriate to fund in all the circumstances
of the case. This may be so, for example, where the case law is
uncertain (owing, for example, to conflicting judgments).
Only if legal aid is granted can it be backdated
to cover the work involved in making the application. Providers
may have to prepare applications pro bono.
14. The LASPO Act 2012 introduced a telephone gateway.
The gateway must be used by clients with debt, special educational
needs or discrimination problems. These cases will, usually, no
longer be eligible to receive civil legal aid funding for face
to face advice.
15. There are two types of work that lawyers will
undertake. Controlled work (including Legal Help, Help at Court
and Controlled Legal Representation) is a form of funding for
advice which can be granted by the organisation directly, under
devolved powers from the LAA. Licensed work (also known as legal
representation or certificated work) is funding for representation
in courts, and is mainly granted by the LAA. Each provider has
a set number of permitted "matter starts"—that
is to say the maximum number of new controlled work cases in a
particular category of law that the provider is permitted to take
on during the life of the schedule (usually a year). Legal Help
forms are also known as "new matter starts". Licensed
work is not restricted by matter starts, so there is no limit
on the number of certificate applications a provider can make,
as long as they have a contract in the appropriate category. Clients
must be and continue to be below the threshold on capital, gross
income and disposable income. For controlled work the provider
assesses financial eligibility, whereas for licensed work the
LAA makes the decision, subject to some limited exceptions.
16. There are a number of different merits tests,
depending upon the nature of the case and the funding sought.
Each case must satisfy and continue to satisfy the relevant test.
17. We considered the issue of legal aid and access
to justice in our Report, Legislative Scrutiny: Legal Aid,
Sentencing and Punishment of Offenders Bill.[7]
We gave particular consideration to section 10 on exceptional
funding, and whether this provision was sufficient to meet the
obligation to ensure effective access to court. We noted:
The state's responsibility under human rights
law to facilitate effective access to a court for the determination
of an individual's civil rights does not require the universal
provision of legal aid in respect of any disputes concerning civil
rights. However, it does require the state to ensure that such
aid is available to make such access possible for those with insufficient
resources in relation to legally complex disputes concerning matters
of fundamental importance.
TRANSFORMING LEGAL AID: DELIVERING
A MORE CREDIBLE AND EFFICIENT SYSTEM
18. On 9 April 2013, the Ministry of Justice launched
a consultation, Transforming legal aid: delivering a more credible
and efficient system. This consultation outlined proposals
to reduce the scope of legal aid funding, with the estimated savings
of £220 million per year by 2018/19. The Government argued
that these proposals were necessary to "boost public confidence
in and reduce the cost of the legal aid system".[8]
This consultation, and the proposals it contained, extended to
England and Wales only.
TRANSFORMING LEGAL AID: NEXT STEPS
19. The Government's consultation closed on 4 June
by which time the Government had received nearly 16,000 responses.
On 5 September the Government published a second consultation,
Transforming Legal Aid: Next Steps. This consultation,
among other things, outlined the themes of the responses they
received; set out the Government's new proposals for reform of
the legal aid system; and opened a further consultation on a modified
model of procurement for criminal legal aid.
20. The Government stated that they would consult
further on the proposal for payment for permission work in judicial
review cases. This consultation ran from 6 September to 1 November
2013.[9] We will be reporting
on the judicial review proposals separately.
The relevant human rights framework
21. We have scrutinised the Government's proposals
to reform legal aid for their likely[10]
compatibility with the relevant human rights standards. We considered
the issue of legal aid and access to justice in our legislative
scrutiny Report on the Bill which became the Legal Aid, Sentencing
and Punishment of Offenders Act 2012, in which we summarised the
relevant human rights framework:[11]
The right of effective access to court is recognised
as a fundamental human right by the common law,[12]
the European Convention on Human Rights,[13]
the EU Charter of Fundamental Rights[14]
and other international human rights treaties to which the UK
is a party.[15] Access
to legal advice for those with insufficient resources for their
right of access to court to be effective is also recognised as
being implicit in the right of access to justice by both the common
law[16] and the ECHR.[17]
[...] This is not a right to legal aid in all cases, but only
when such assistance is "indispensable for an effective access
to court."[18] [...]
Entitlement to legal assistance under Article 6(1) ECHR will always
depend on the facts: in particular, the importance of what is
at stake for the individual, the complexity of the relevant law
and procedure and the individual's capacity to represent him or
herself effectively.[19]
22. A summary of the relevant legal standards engaged
by the proposals is annexed to this Report. Here we only refer
to those which have been most central to our scrutiny.
COMMON LAW
23. The right of effective access to court has long
been recognised as a fundamental human right by the common law.[20]
As elucidated by Lord Bingham of Cornhill,[21]
the common law right of effective access to justice comprises
three distinct rights:
a) The right of access to a court;
b) The right of access to legal advice;
c) The right to communicate confidentially with
a legal adviser under the seal of legal professional privilege.
24. Although clearly related to the fundamental right
of access to a court, the right of access to legal advice has
also long been recognised as a distinct common law right
enjoying a fundamental status: "one of the fundamental rights
enjoyed by every citizen under the common law"[22]
and as "inherent and fundamental to democratic civilised
society".[23] These
rights are regarded by the judiciary as enjoying a common law,
constitutional position, inherent in the rule of law.[24]
The common law also recognises as a fundamental value the principle
of equal treatment.[25]
EUROPEAN CONVENTION ON HUMAN RIGHTS
25. The fundamental importance of the right of access
to legal advice, and its importance to the rule of law, is also
recognised in the relevant international human rights obligations
to which the UK is a party. In particular, Article 6(1) of the
European Convention on Human Rights, is interpreted by the European
Court of Human Rights (ECtHR) to include a right of access to
court which may in certain circumstances require publicly funded
access to legal advice to be available in order for the right
of access to court to be practical and effective.
26. In Golder v United Kingdom,[26]
the ECtHR confirmed that "the right of access
[to a court] constitutes an element which is inherent in the right
stated by Article 6 (1)" . The link between this right of
access and any obligation on the part of the state to provide
funding for legal representation is set out in the case of Airey
v Ireland, where the ECtHR held that:
The Convention is intended to guarantee not rights
that are theoretical or illusory but rights that are practical
and effective. This is particularly so of the right of access
to the courts in view of the prominent place held in a democratic
society by the right to a fair trial. It must therefore be ascertained
whether Mrs. Airey's appearance before the High Court without
the assistance of a lawyer would be effective, in the sense of
whether she would be able to present her case properly and satisfactorily.
... Article 6(1) may sometimes compel the State to provide
for the assistance of a lawyer when such assistance proves indispensable
for an effective access to court either because legal representation
is rendered compulsory, [...] or by reason of the complexity of
the procedure or of the case.[27]
The Court concluded that the applicant, Mrs Airey,
was entitled to legal aid in order for her right of access to
the court to be effective.
27. Also relevant is the
over-arching right in Article 14 ECHR not to be discriminated
against in the enjoyment of Convention rights, including the right
of effective access to court.
THE GOVERNMENT'S VIEW OF THE RELEVANT
HUMAN RIGHTS STANDARDS
28. We wrote to the Lord Chancellor on 15 July requesting
a detailed human rights memorandum setting out the Government's
assessment of the compatibility of its proposals with all relevant
human rights standards, including Article 6(1) ECHR and Article
14 in conjunction with Article 6(1) ECHR, and the common law rights
of access to court and effective access to justice.
29. The Government, in its memorandum dated 27 September
2013, accepts that:
there is a common law right of access to the
court [...] However, this is not the same as a common law right
to legal aid. We do not consider that there is any basis at common
law that a litigant is in general entitled to a state subsidy
in respect of lawyers' fees.
The legal aid reforms do not involve any fundamental
right of access to the courts, rather the question of whether
a person should receive legal aid funding. Even if this were
wrong, the limits on legal aid agreed by Parliament through legislation
would be effective to limit the extent of any such common law
right.
30. The Government's position is thus that there
is "no common law right to legal aid", and the proposals
to reform legal aid therefore do not involve any fundamental right
of access to the courts. We agree that there is no general common
law right to legal aid, and we accept that, as the Lord Chancellor
said in oral evidence, "it is completely unrealistic to believe
that we can provide legal aid support to give every person in
all circumstances access to the justice system."[28]
Rt Hon Chris Grayling MP was also right to say that his role
as Lord Chancellor "does not mean that [...] I should argue
that the state should, in all circumstances, pay for all forms
of legal action by people who do not have the means to pay for
that action themselves."[29]
31. But in reality none of our witnesses in this
inquiry, and no serious commentator, suggests that such a general
common law right to legal aid in all circumstances exists. The
common law does, however, undoubtedly recognise a right of effective
access to court, which means that legal aid may be required in
certain circumstances in order for the right of access to court
to be meaningful. As we stated in our Report on the LASPO Bill:
The state's responsibility under human rights
law to facilitate effective access to a court for the determination
of an individual's civil rights does not require the universal
provision of legal aid in respect of any disputes concerning civil
rights. However, it does require the state to ensure that such
aid is available to make access possible for those with insufficient
resources in relation to legally complex disputes concerning matters
of fundamental importance.[30]
32. We are surprised that the Government does
not appear to accept that its proposals to reform legal aid engage
the fundamental common law right of effective access to justice,
including legal advice when necessary. We believe that there is
a basic constitutional requirement that legal aid should be available
to make access to court possible in relation to important and
legally complex disputes, subject to means and merits tests and
other proportionate limitations.
Our inquiry
33. We did not seek to look at any of the other proposals
on legal aid reform that were set out in the Government's consultation,
focusing our attention on the three areas where we considered
that the question of access to justice was clearest and where
we have particular expertise to scrutinise the proposed policy
and its effect. The proposals in relation to criminal legal aid
have been considered by the Justice Committee.[31]
34. We are grateful to those who gave evidence to
us. The impact of the proposal to remove legal aid for all cases
considered as having "borderline" prospects of success
we considered only in written evidence. We took oral evidence
in October 2013 from individuals and non-governmental organisations
on the other two proposals, the proposed introduction of a residence
test for civil legal aid claimants and the proposed restriction
on the scope of legal aid available to prisoners. We heard from
Tim Buley, Dr Nick Armstrong, The Public Law Project, Asylum Aid,
The Children's Society, Immigration Law Practioners Association,
The Official Solicitor to the Senior Courts, Women's Aid, Her
Majesty's Chief Inspector of Prisons, The Howard League for Penal
Reform, Prisoners' Advice Service and the Prisons and Probation
Ombudsman. We also received evidence from Rt Hon Chris Grayling
MP, Secretary of State for Justice and Lord Chancellor. We thank
the Lord Chancellor for his contribution.
Timetable
35. The Government's consultation response outlined
that these proposals would be laid before Parliament, by means
of secondary legislation, in late 2013 or early 2014. We wrote
to the Lord Chancellor requesting that our Report be considered
before the proposals were laid, but our request was declined.
The Lord Chancellor justified his refusal, in oral evidence, by
stating that the proposals were published in April. But in fact,
the proposals were modified in the light of consultation responses,
and these were not published until September.
36. The Government laid the statutory instrument
(using the negative procedure) to amend the scope of criminal
legal aid for prison law cases on 4 November. We note that the
House of Lords Secondary Legislation Scrutiny Committee raised
a concern about this instrument and the lack of accompanying information:
The Committee noted with concern that the Explanatory
Memorandum (EM) offered by the Ministry of Justice did not give
much background information to set the changes in context, for
example it did not inform the House which areas of prison law
would no longer be eligible for legal aid or give the policy rationale
for removing those items as opposed to others. Similarly section
9 of the EM only mentions that revised guidance will be published
for legal aid providers and does not explain how prison governors
and prisoners will be informed of the new arrangements.[32]
37. We are disappointed by the Lord Chancellor's
suggestion that we ought to have reported on these proposals earlier.
The Government's modified proposals were published in September
and we have reported on them as soon as possible. We regret that
the Secretary of State was not prepared to wait for our Report
before proceeding further. We are not convinced that there is
sufficient urgency behind these proposals, nor certainty about
their human rights implications, to justify the Government in
proceeding so quickly with bringing them into force.
1 September 2013 Cm 8703 Back
2
Adapted from Halsbury's Laws of England Back
3
The Coalition: our programme for government: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/78977/coalition_programme_for_government.pdf Back
4
A matter start is a case started under types of legal aid funding
called Legal Help or, where Legal Help has not previously been
granted, Controlled Legal Representation. Contracts between civil
legal aid providers and the Legal Aid Agency set out the number
of legally aided cases (or "matters") that a firm is
allowed to start per year. Back
5
Adapted from LAG Legal Aid Handbook 2013/14 Edited by Vicky
Ling and Simon Pugh, with Anthony Edwards. Back
6
See http://www.justice.gov.uk/downloads/legal-aid/funding-code/chancellors-guide-exceptional-funding-non-inquests.pdf
for guidance on exceptional funding Back
7
Legislative Scrutiny: Legal Aid, Sentencing and Punishment
of Offenders Bill ( 22nd Report, Session 2010-12,
HL Paper 237, HC 1717) Back
8
Ministry of Justice, Transforming legal aid: delivering a more
credible and efficient system, April 2013, http://www.justice.gov.uk/downloads/consultations/transforming-legal-aid.pdf
Back
9
Judicial Review: Proposals for further reform Back
10
Likely rather than actual compatibility because our inquiry has
been an exercise in pre-legislative scrutiny, examining proposals
rather than actual measures, although during the course of our
inquiry the statutory instrument giving effect to the prison law
proposal was laid: see chapter 3 below Back
11
Legislative Scrutiny: Legal Aid, Sentencing and Punishment
of Offenders Bill (22nd Report, Session 2010-12,
HL Paper 237, HC 1717) Back
12
See e.g. Raymond v Honey [1983] 1 AC 1; R v Lord Chancellor, ex
p. Witham [1998] QB 575 Back
13
Article (6(1) and Golder v UK (1975) EHRR 524 Back
14
Article 47. The Charter is intended to be declaratory of the existing
human rights obligations of Member States of the European Union.
It only applies to the EU institutions and to Member States when
implementing EU law. "Legal aid shall be made available to
those who lack sufficient resources in so far as such aid is necessary
to ensure effective access to justice." Back
15
See e.g. International Covenant on Civil and Political Rights,
Article 14 Back
16
See e.g. R v Shayler [2003] 1 AC 247; R v Secretary of State for
the Home Department, ex p Anderson [1984] QB 778 Back
17
See e.g. Airey v Ireland (1979) 2 EHRR 305 Back
18
Ibed Airey Back
19
Steel and Morris v UK (2005) 41 EHRR 403 at para. 61 Back
20
See e.g. Raymond v Honey [1983] 1 AC 1; R v Lord Chancellor, ex
p. Witham [1998] QB 575 Back
21
R (Daly) v Secretary of State for the Home Department [2001]
2 AC 532 Back
22
Lord Hope in R v Shayler [2003] 1 AC 247 Back
23
Lord Cooke in Daly Back
24
The Queen (on the application of) The Children's Rights Alliance
for England v Secretary of State for Justice [2013] EWCA Civ
34 Back
25
See e.g. Lord Hoffmann in Matadeen v Pointu [1999] 1 AC
98 Back
26
(1979-80) 1 E.H.R.R. 524 Back
27
[1979] 2 EHRR 305 Back
28
Q26 Back
29
Q27 Back
30
Legislative Scrutiny: Legal Aid, Sentencing and Punishment
of Offenders Bill (22nd Report, Session 2010-12,
HL Paper 237, HC 1717) Back
31
Justice Select Committee, Transforming Legal Aid: evidence
taken by the Committee (3rd Report, Session 2013-14,
HC 91) Back
32
House of Lords Secondary Legislation Scrutiny Committee, Correspondence:
The Government's Review of Consultation(19th Report,
Session 2013-14, HL Paper 81) Back
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