“Shadow legal aid scheme” blocked by Court of Appeal

In what we called the development of a “shadow legal aid scheme”, the President of the Family Division, Sir James Munby, said in Q v Q that in certain circumstances the Court could order that a party not eligible for legal aid be funded by HMCTS. In the first use of that power, HHJ Bellamy, in K & H, ordered that representation of a father be funded where serious allegations had been made against him and where he would otherwise have to cross-examine in person the child who made the allegations.

The Lord Chancellor appealed that decision, and the Court of Appeal has today given judgment – Re K & H (Children) [2015] EWCA Civ 543 (case now on Bailii, and the judgment can also be downloaded from the Coram Childrens Legal Centre website – CCLC, and the Association of Lawyers for Children, intervened in the case).

Giving judgment, the Master of the Rolls Lord Dyson said that there was no such power:

31. As the judge acknowledged, LASPO provides a comprehensive code for the funding of litigants whose case is within the scope of the scheme.  It is a detailed scheme.  I do not consider that it is possible to interpret either section 1 of the 2003 Act or section 31G(6) of the 1984 Act as giving the court the power to require the Lord Chancellor to provide funding for legal representation in circumstances where such funding is not available under a scheme as detailed and comprehensive as that which has been set up under LASPO.  The court must respect the boundaries drawn by Parliament for public funding of legal representation.  In my view, the interpretation adopted by the judge is impermissible: it amounts to judicial legislation.

37. For these reasons, I consider that section 1 of the 2003 Act does not give the court the power to require the Lord Chancellor to incur public expenditure in payment for legal representation in civil and family proceedings. The provision of legal services cannot be described as coming within the scope of the duty to ensure that there is an efficient and effective system to support the carrying on of the business of a court.

41.The fact that costs associated with court hearings are on occasion met by HMCTS pursuant to the Lord Chancellor’s general duty under section 1 of the 2003 Act (to ensure that there is an effective and efficient system for the carrying on of the business of the family court) is not material to the funding of legal representation.

42. Most (if not all) of the considerations which I have mentioned above in relation to section 1 of the 2003 Act also lead me to conclude that section 31G(6) of the 1984 Act cannot be invoked to require the Lord Chancellor to fund legal representation to a litigant who does not qualify for legal aid because he does not satisfy the means test. Ms Whipple makes these further points which I accept.  First, section 31G(6) derives from section 73 of the Magistrates’ Courts Act 1980 which itself derives from the identical provision in the Magistrates’ Court Act 1952.  It enables the court to put questions to a witness on behalf of a party in the absence of legal representation, or to take steps itself to cause those questions to be put to enable effective examination of the witness.  It cannot, on any plain reading, be interpreted as giving the court power to order funding of legal representation for a party.

43. Secondly, on a plain and natural interpretation of the language of section 31G(6), it is predicated on the party not being represented. If the party were to become legally represented, section 31G(6) would fall away.

44. Thirdly, the way in which “cause to be put” has historically been applied in practice is that the justices’ clerks in the magistrates’ courts could be asked to put questions to a witness on behalf of a party, where it was not possible for the party themselves to do so. Following the reorganisation of the Family Court, the justices’ clerks are now available to perform this function in any part of the Family Court and not only when magistrates are hearing the matter.

45. It follows that I respectfully disagree with what the President said at para 79 of his judgment in Q v Q. It would seem that he did not have the benefit of the detailed submissions which have been made to this court.

46. I conclude, therefore, that the judge had no power to make the order that he made and I would allow the appeal on the first ground. It is not therefore necessary to deal with the other grounds of appeal.  But I should say in relation to the second ground that I did not understand it to be contended by anyone that the imposition of a means test is of itself contrary to the Convention (it plainly is not).  I propose to say nothing on the question whether the judge was wrong to conclude that the father could not afford to pay for his legal representation (the third ground).  We heard a good deal of argument on the fourth ground of appeal, viz that, unless the judge’s order were to stand, there would be a violation of the article 6 rights of the father and the article 6 and 8 rights of K and H.  In deference to counsel’s submissions and in view of the importance of the issues raised, I propose to say something about this ground of appeal.

Dyson MR therefore went on to consider the Convention rights issues. But he concluded that, in most cases questioning by the Judge or by a Justice’s Clerk (who can be made available even in a case not heard by Magistrates) would be sufficient and not a breach of Article 6 or 8 – and that it would be sufficient in this case. He conceded that in some very complex and serious cases that would not be appropriate, and such a case might amount to a breach. He called for there to be a statutory scheme created to allow for the appointment of a legal representative in such cases.

Comment

This judgment firmly puts to rest the idea, proposed by Munby P and first implemented by HHJ Bellamy, that cuts to legal aid can be circumvented in appropriate cases by finding funds from some other source. The courts simply don’t have the power to require public funds to be spent in that way when there is a comprehensive statutory scheme which provides for cases which can – and cannot – be funded. That might, in some cases, result in a breach of Article 6 or 8. A fall-back statutory scheme in such cases would be useful – and the interveners in this case have called for one to be enacted. But it needs to be a statutory scheme, and it would be surprising if there is significant political appetite for creating what would amount to a second legal aid scheme to fill (some of) the gaps left by cuts to the first.

The government is likely to argue that the exceptional funding scheme is there to cater for cases where a lack of funding would breach Article 6 or 8. It is worth noting that the father in K & H was not in any event a victim of the LASPO cuts – he was financially ineligible, and so would never have got legal aid, even if LASPO had never been enacted. So he could not have got exceptional funding, which is means tested. As Dyson MR pointed out, the ECtHR has said that the imposition of a means test is not incompatible with Article 6.

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Legal aid for contempt in the County Court

In Brown v London Borough of Haringey [2015] EWCA Civ 483 the Court of Appeal considered the availability of legal aid for contempt proceedings in the County Court. It was considering an appeal against the committal for contempt of an elderly man who was found to have breached anti-social behaviour injunctions. In the County Court, he was unrepresented following the failure of his solicitor’s efforts to obtain legal aid.

The solicitor had applied both to the LAA, which said it was a criminal matter and to apply to the Court; and to the Magistrates Court that dealt with legal aid applications in the local area, which said it was a civil matter and to apply to the LAA.

Giving judgment, McCombe LJ analysed what he said was “disgracefully complex” legal aid legislation. The relevant analysis is set out at paras 26 to 37. McCombe LJ concluded that this was indeed a criminal matter (that is, that it fell within the criminal legal aid scheme and the solicitor needed a criminal contract). He approved the judgment of Blake J in King’s Lynn and West Norfolk Council v Bunning and anor [2013] EWHC 3390 (QB).

In cases in the Crown Court, High Court and Court of Appeal, the Court has the power to grant legal aid itself (which the Court of Appeal did, to allow Mr Brown’s representatives to be funded). But the County Court has no equivalent power. These are criminal applications which have to be made by criminal practitioners using criminal application forms. See also our posts on funding for new style anti-social behaviour injunctions here and here – this work can also be done by civil practitioners if the LAA is willing to grant an Individual Case Contract.

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Michael Gove appointed new Lord Chancellor

In the post-election reshuffle Chris Grayling has moved on from the MoJ. The new Secretary of State for Justice and Lord Chancellor is Michael Gove, the former education secretary and chief whip.

The Spectator suggests that his two key focuses will be implementing Conservative promises to replace the Human Rights Act, and to reduce both crime and the prison population. The Guardian reports that his brief will focus on “prisons, sentencing and criminal justice”. It isn’t known what views, if any, he has on legal aid, nor yet which justice minister will take specific responsibility for it in the new government.

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CCMS “not fit for purpose”

The day after the election, there is no news yet on the new team at the MoJ – there will be at least one new minister, with Simon Hughes having lost his seat and the Lib Dems going into opposition. It seems, no doubt to the delight of legal aid lawyers everywhere, that Chris Grayling has said that he wants to stay as Justice Secretary:

Whoever is in charge at the MoJ, it seems unlikely that there will be significant changes in legal aid policy or at the LAA. The Conservatives have simply promised to “review” the legal aid system, so that it can “continue to provide access to justice in an efficient way”.

A key LAA project is the roll-out of CCMS, which is due to become mandatory from October. This week, the Association of Costs Lawyers released a report on CCMS, concluding that:

  • it is fundamentally flawed, but that the LAA is in institutional denial about those flaws;
  • some functionality has been poorly implemented, and some missed altogether;
  • the system gets some of the basics wrong and ignores LAA and legal requirements.

The ACL warns that the system will lead to more inefficiencies and delays in payments, seriously affecting the cashflow of providers. Supported by the Law Society, LAPG and others, it calls on the LAA to delay implementation until the problems are fixed. Many practitioners who have used the system in the pilot and voluntary stages will know that it is currently far from providing access to justice in an efficient way.

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LALYs – deadline for nominations today

The annual Legal Aid Lawyer of the Year awards nominations close today. The ceremony is on 1st July. There are several new awards this year, and immigration is no longer a separate category. Details and a nomination form can be found on the LAPG website.

The full list of awards is:

  • Children’s rights
  • Criminal defence
  • Family legal aid
  • Family mediation
  • Housing
  • Public law
  • Social and welfare
  • Legal aid newcomer
  • Legal aid barrister
  • Legal aid firm / NfP agency
  • Access to Justice through IT

There will also be an award for outstanding achievement, though nominations are not sought for that.

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Crime deadlines

Firms with existing crime contracts have until 28 April to accept the LAA’s offer of a contract extension to 10 January 2016. If the LAA does not receive an acceptance, the firm’s contract will end on either 30 June or or 30 September, depending on whether they accepted the previous extension offer. More information is available here.

The deadline for the Duty Contract tender, for contracts starting on 11 January 2016 is 12 noon on 5 May. Firms are urged to plan their submissions carefully as the tender rules are complex and the application is demanding. Do not under-estimate how long it will take to check your bid. More information from the LAA can be downloaded here.

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Legal aid and access to justice: what the manifestos say

The main political parties have published their manifestos, and some have also made other specific commitments. We have created a new page on the site to collate manifesto pledges and commitments made – you can see the page here, and we welcome comments and links highlighting things we may have missed. We’ve also included links to other materials produced by rep bodies and others to support campaigning. We’ll try to keep it updated during the campaign.

Only the Greens promise a full reversal of the cuts. UKIP doesn’t mention legal aid at all, and the three main parties all promise reviews rather than anything specific of substance, with the exception of some specific commitments Labour has made. In summary, this is what each party says about legal aid:

  • The Conservatives promise to review legal aid so that it can “continue to provide access to justice in an efficient way”;
  • The Green Party is the only party fully to commit to reversing all legal aid cuts;
  • Labour has promised not to implement two tier contracts for criminal legal aid and to revoke the new conditional payment regime for judicial review. It will “widen access” to legal aid for victims of domestic violence, “make sure that access to legal representation” (not “legal aid”) “remains available to those who need it”, and will review the planned second fee cut in crime and the procurement of criminal legal aid generally;
  • The Lib Dems promise to review criminal legal aid and make “no further savings” without an impact assessment; carry out an “immediate review” of civil legal aid “to ensure legal aid is available to all those who need it” and develop “a strategy that will deliver advice and legal support to help people with everyday problems like debt and social welfare”
  • UKIP makes no mention of legal aid or access to justice. (UPDATE – thanks to Legal Action Group, which points out that UKIP does propose putting one trained adviser in each food bank to assist users with legal needs)

 

 

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