A week (and it’s only Wednesday) of significant developments on several legal aid fronts:
The High Court (Collins J) gave judgment today in IS v The Director of Legal Aid Casework and another  EWHC 1965 (Admin), the Public Law Project’s challenge to the exceptional funding system. This case was about the operation of the scheme as a whole, which, in a long and detailed judgment Collins J found was not operating lawfully or as it should. We’ll have a more detailed post in due course, but for now it is worth quoting the conclusion:
- As will become apparent, I think that there must be changes to the scheme. The ECF application forms are far too complex for applicants in person. Separate forms should be provided. Indeed, overall the test set out in R(G) can be set out in the form and applicants or providers can then be required to give full details of the need for legal assistance by producing all existing material relevant to the application. As I indicated, what is put on the website can surely be put on a form. Consideration must be given to provision of Legal Help to enable providers to do work to see whether a client has a case which should be granted legal assistance because it qualifies within s.10 of the Act. No doubt the LAA will be entitled to decide whether any such application is reasonable since a provider must satisfy himself that there is a possible need for legal assistance on the basis of preliminary information given by the client and any relevant documents provided. Legal Help does not require a prospect of success test.
- The rigidity of the merits test and the manner in which it is applied are in my judgment wholly unsatisfactory. They are not reasonable.
- As will be clear, I am satisfied that the scheme as operated is not providing the safety net promised by Ministers and is not in accordance with s.10 in that it does not ensure that applicants’ human rights are not breached or are not likely to be breached. There is a further defect in the failure to have any right of appeal to a judicial body where an individual who lacks capacity will otherwise be unable to access a court or tribunal.
This evening, the Lord Chancellor has issued a further Notice to the Director in response to the judgment, reminding caseworkers to have regard to it. Further amendments to the scheme will be required in due course.
More information about today’s case can be found on the website of the Public Law Project, which has done an excellent job in challenging the flaws and injustices inherent in the way the exceptional funding scheme has operated since LASPO was passed, through this and other cases and through its support project.
Crime action update
Meanwhile, the Criminal Bar Association announced the result of its ballot – a vote in favour of supporting the solicitors’ action by reinstating “no returns” and not accepting cases where legal aid was granted on or after 1 July. The CBA executive is meeting this evening to decide how to take the action forward.
The result was announced a few minutes before the Lord Chancellor, Michael Gove, gave evidence to the Justice Select Committee (watch here; see also the Gazette’s report). If his strategy was to seek to divide and rule, it may have backfired given the outcome of the CBA vote. His further attempts today to reassure the Bar while overlooking solicitors seem merely to have fired them up.
Domestic violence and abuse evidence requirements
On Friday 17 July, amending regulations were giving effect to the MoJ’s previously announced revisions to the domestic violence gateway for family law come into force. Reg 2(5) of the Civil and Criminal Legal Aid (Amendment) (Regulations) 2015 add a new Reg 31 (7A) to the Civil Legal Aid (Procedure) Regulations 2012. This has the effect of dis-applying Regs 33 and 34 of the Procedure Regs (the regulations which prescribe what evidence of abuse is required) for applications for representation (including amendments) where there has already been a determination (not withdrawn) that the individual qualifies for Family Help (Higher). In other words, this means that it will no longer be necessary to provide up to date evidence when applying to amend a certificate to cover a final hearing, and certificates should no longer be withdrawn even where the evidence is by that time outside the two year limit.
Further amendments, also coming into force on Friday, amend the evidence requirements so that convictions can be taken into account even if they are spent, providing they are no more than two years old at the date of the application, and to reduce the refuge accommodation requirement down from 24 hours to any length of time at all (see Reg 2(6) of the 2015 Amendment Regs, amending the amendments to the Procedure Regs inserted by Regs 2 and 3 Civil Legal Aid (Procedure) (Amendment) Regulations 2014.
Incidentally, if that seems complicated. it is, and it is so because the LAA no longer publishes a complete and up-to-date codification of the legal aid rules as it used to with the Funding Code. Instead the rules are contained within regulations – but no consolidated set of regulations is published either on the LAA website or on legislation.gov.uk. This means that, as the scheme evolves over the years since LASPO was passed, the only way to understand it is to trace amendments back through several sets of regulations – just three, in this case, but more in others. We are in danger of reaching the point at which the legal aid scheme becomes, through piecemeal amendment, incomprehensible.
Prison law and appeals tenders
A reminder that the tender for prison law and appeals work closes next week, at noon on the 21 July. This is only for organisations that want a specialist prison law and / or appeals contract; providers who tendered for an own or duty crime contract don’t need to apply. More information about the tender and a set of FAQs can be found on the LAA website.