Exceptional cases and legal aid
The Ministry of Justice (MoJ) has issued its first set of documents on the new guidance and rules for claiming legal aid from 1 April. Included in the documents is the Lord Chancellor’s guidance on claiming legal aid in exceptional cases.
Currently the exceptional funding rules are mainly used to grant legal aid for representation at inquests. Under section 10 of the Legal Aid, Sentencing and Punishment of Offenders (LASPO) Act 2012, the exceptional funding provisions are widened to include cases in which a failure to provide legal aid would breach the European Convention on Human Rights (ECHR) or European Union law. The document, Lord Chancellor’s exceptional funding guidance (non-inquests), seems to have been drafted with an emphasis on trying to discourage claims in civil cases brought under article 6(1) of the ECHR (right to a fair and public hearing). It argues that for civil legal aid there are only ‘certain very limited circumstances’ in which it will be required ‘in order to guarantee the effective right of access to a court in civil proceedings’, and then only in cases which involve the ‘determination of a person’s civil rights or obligations’.
The document cites ECHR decisions in tax disputes and immigration proceedings in which it was held that civil rights and obligations were not engaged. Perhaps in an attempt to head off cases related to the Welfare Reform Act 2012, it argues that cases which involve a ‘series of evaluative judgments’ about whether or not a claimant qualifies for a benefit would not engage article 6(1). To support this view the cases of Tomlinson v Birmingham City Council  UKSC 8 (which concerns the provision of housing to a homeless person) and R (A) v London Borough of Croydon  UKSC 8 (which concerns the provision of social services support to children) are cited.
Tom Royston, a welfare rights specialist and a former Law Centre® lawyer now training to be a barrister at Garden Court North Chambers in Manchester, describes the guidance as ‘contentious’. He comments that the two cases cited did not involve the payment of cash social security benefits. He argues: ‘It seems an unusual use of language to describe what was at issue in A or Tomlinson as “welfare benefits” and indeed in Tomlinson (at ) Lord Kerr expressly drew the distinction, which the case-law recognises “between social security payments and social welfare provision”‘.
Over 600,000 cases will no longer be funded by legal aid from 1 April and the government seems to be calculating that only around 6,000 will fall into the exceptional cases rules. LAG believes that it is betting the house on a very narrow and possibly flawed interpretation of article 6 and how it applies to the provision of legal aid services.
The lead case on this issue is Airey v Ireland App No 6289/73, (1979-80) 2 EHRR 305. Mrs Airey’s case reads very much like the sort of bitter, but not unusual, divorce case which will be out of the scope of legal aid after April. The academic Jo Miles points out in her paper, Legal aid and exceptional funding, that while the Strasbourg Court has ruled article 6 does not confer an ‘absolute right to legal aid in civil cases’, much will turn, as it did in Airey, on the individual circumstances of a case. LAG would suggest that the sort of complex procedures involving poor and other vulnerable people, which the government is trying to remove from the scope of legal aid, are the type of cases protected by article 6.
The Irish government was forced to respond to the Airey case by introducing a system of legal aid for divorce cases. The exceptional cases regulations may well prove insufficient to prevent something similar happening in England and Wales, ie, a return of many private law family cases to the scope of legal aid. There is also the potential, especially with the massive upheaval in the benefits system about to hit, for many more cases to be covered by regulations than the government appears to believe.
Vicky Ling and Simon Pugh are working on the latest edition of the LAG Legal Aid Handbook in which the new rules and guidance for legal aid practitioners will be covered. This should be published in April.