Grants of legal aid for civil
proceedings (‘civil legal services’) have been radically curtailed by Legal Aid
Sentencing and Punishment of Offenders Act 2012. Section 10 of that Act creates
a narrow category of cases where an exceptional case determination can be made
to bring the United Kingdom legal aid system within the requirements of
European Convention 1950. The extent to which the Lord Chancellor can issue
Guidance to restrict such narrow categories of grant and the legitimacy of LAA
decision-making has been considered by the courts in the first part of this year.
LAA decision-makers have had decisions set aside; and the Lord Chancellor’s
Guidance has been held unlawful by the High Court.
In this second
article of a series on legal aid David Burrows considers the relevant European
Convention 1950 provisions; reviews the extent to which the Lord Chancellor may
fetter his own discretion by guidance and delegated legislation; and looks at
LAA decision-making in the context of s 10. The full version of this article appears in the November 2014 issue of Family Law.