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The implications for access to justice of the Government's proposals to reform legal aid - Human Rights Joint Committee Contents


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 The 1988 Act was repealed and replaced by the Access to Justice Act 1999, subject to certain transitional provisions.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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Prepared 13 December 2013