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01 FEB 2013

Legal aid and public law in 2013

The Government's policy of public sector austerity has sliced funding in almost every area of public life. This includes legal aid, the availability of which is set to be either greatly reduced or removed entirely in significant areas of law. As is well known, the framework of these changes is provided for in the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (‘LASPO').

There is a consensus that these changes present a real threat to the administration of justice in England and Wales. There will be increased numbers of litigants in person, law firms are likely to pull out of the providing legal aid services altogether, whilst many vulnerable people will no longer have the means to assert their legal rights effectively.

Areas that will be removed from the scope of legal aid include: asylum support, consumer law, most debt cases, education cases, most housing matters, most immigration cases, private family law and welfare benefits.

To anyone involved in providing legal aid services, this is bleak sounding stuff.

However, not all areas of law will be out of the scope of legal aid. Homelessness, special educational needs, public law family, asylum, mental health and community care will all be areas of law that will attract legal aid. So will ‘public law' cases, or more accurately, judicial review cases.

In these areas, the relevant eligibility criteria will be much tighter. This is becomes clear when looking at the Civil Legal Aid (Merits Criteria) Regulations 2013 which were made on 22 January 2013, and are due to come into force on 1 April. The requirements for public law claims are set out in regulations 53-56.

By far the most problematic requirement in regulation 53(b) is that an individual must have ‘exhausted all ... alternative procedures which are available to challenge the act' (emphasis added). This requirement goes further than the normal requirement in judicial review that one must to exhaust alternatives remedies. The practice of the courts is to be pragmatic and there is certainly no requirement that a claimant must have used ‘all' procedures no matter how lengthy or inconvenient those processes may be.

Lord Pannick highlighted this issue when the regulations were laid before Parliament. His focus was the lack of the word ‘reasonable'. The insertion of this key word would mean that regulation 53 would only require a person to have exhausted ‘all reasonable alternatives'. Such a change would prevent the almost complete removal of legal aid in judicial review cases.

In an encouraging concession, Lord McNally (the responsible minister in the House of Lords) said: 

‘I can tell the House that, once these regulations are made, the Government will bring forward as soon as practicable, and in any event well before April 2013, amending regulations to revise Regulation 53(b). These regulations will introduce discretion into Regulation 53(b) so that the director of legal aid casework will have the express power to grant legal aid for public law claims, even if the alternative routes have not been exhausted, if he none the less considers that such an appeal or procedure would not be effective in providing the remedy that the individual requires. This would clearly address the situations that are causing noble Lords concern. It would, for example, put beyond doubt that legal aid for judicial review would be available where the claimant required urgent interim relief and this could not be provided in any other way.'

This episode is heartening for several reasons. First, legal aid in judicial review cases will not be as limited as the current regulations appear to indicate. Secondly, it shows that the Government will sometimes listen to reasoned arguments. Thirdly, it shows the importance of having expert scrutiny in the House of Lords from experienced and authoritative lawyers such as Lord Pannick.

As 1 April 2013 looms for all those who provide legal aid services, it is clear that there is little to be cheerful about. However, it is to be hoped that of what little legal aid remains, it will be used effectively to challenge the government and vindicate the rights of most vulnerable in society.

(See further: https://www.justice.gov.uk/legal-aid/newslatest-updates/legal-aid-reform/scope)

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