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Court of Protection Practice and Procedure Conference 2016

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Public law and Regulation

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28 JUN 2013

Legal aid: consultation, changes and criticism

The Ministry of Justice's consultation ‘Transforming Legal Aid: delivering a more credible and efficient system' closed on 4 June. Although no official figures have yet been made available, a number of groups and individuals have been making efforts to collate as many of the responses as possible, and estimate that the consultation has received in the region of 13,000 responses. These same groups and individuals have been making those responses that they can get hold of publically available, and they make for interesting reading. Perhaps not surprisingly in an area where the majority of respondents are participants in the legal profession, there is a clear distinction between those arguments based on policy, and those based on the legality of what is proposed.

To recap, although the consultation paper has garnered the most attention for its proposal to introduce price competitive tendering in criminal legal aid work, it also contains a number of changes which would have a significant impact on public law work. Firstly, the proposals would remove legal aid for serving prisoners, on the basis that the internal complaints procedures within the prison system are sufficient. Another proposal would see legal aid removed from individuals without a ‘strong connection' to the UK. Legal aid would be removed for the preparatory work (including request for reconsideration) if permission was refused. Proposals which have received less coverage include reducing fees for public family law legal aid by 10%, and those for experts by 20%.

Aside from headline-grabbing criticisms about potential damage to our legal system, the separation of powers, the rule of law and government accountability, respondents made a number of general points about the consultation. These included criticism of length of consultation (twelve weeks), on the basis that this was very short for the breadth of what is proposed and its likely impact. There was a great deal of criticism of the basis of consultation, with some arguing that the figures on which the calculations contained within the consultation were based were flawed, with many making the point that savings made from cuts which are already in place had not been taken into account. Some felt that the Ministry of Justice had under-estimated the likely impact of its proposals, particularly the Equality Impact Assessment, and the effects on vulnerable people. Many pointed out that what public unhappiness there may be with the legal system appears to stem from a lack of understanding about how the system works, and that the claim that it the UK's legal aid bill is greater than any other European state is a difficult one to make given differences in legal systems and crime rates across Europe. Turning to the detail of the proposals, it is difficult to escape the almost unanimous disagreement they were met with. At the same time, however, there is a notable lack of alternative suggestions in the responses, most of which recognise the need to reduce the burden of the legal aid bill on public funds.


This proposal would see legal aid for prisoners removed other than where their rights under Article 6 (determination of a criminal charge) or Article 5(4) (lawful detention) of the European Convention on Human Rights are engaged, and internal prison adjudications where legal representation is required according to the principles set down in R v Home Secretary ex p Tarrant [1985] QB 251. Essentially this means that legal aid will no longer be available where a prisoner wishes to challenge his or her treatment whilst in detention, as well as Parole Board hearings, the subject of a number of judicial review cases in recent years, as the service struggles to cope with the impact of indeterminate sentences. The Parole Board itself raised concerns that the proposals would make their work slower, less efficient and more expensive.

Many consultees pointed out that a significant number of successful judicial review cases are brought by prisoners. The Bar Council noted concerns about the impact on child prisoners and expectant mothers in prison, particularly in relation to their Article 8 rights. Further, a significant proportion of prisoners are particularly vulnerable due to mental health problems and learning difficulties. The Bingham Centre for the Rule of Law argued that this proposal would render those rights retained by prisoners effectively unenforceable in some situations. Some raised concerns about significant delay and whether the Prison and Probation Ombudsman was capable of ensuring real fairness in proceedings, particularly given the complexity of the issues complaints may give rise to. There were concerns as to the Ombudsman's lack of power to enforce its recommendations. Most notably, these concerns were all shared by HM Inspectorate of Prisons. It was suggested that there could be a requirement that internal channels be exhausted before judicial review is brought and some respondents noted that recourse to these internal channels will often be required before permission for judicial review will be granted. 

Residence test

This proposal was criticised as unlawful and unfair, with potential Article 6 repercussions, and respondents suggested that it could in fact be unlawful, giving rise to yet more judicial review cases. A number explicitly argued that that the test would prove to be discriminatory on the grounds of race and nationality, and thus unlawful under the Equality Act and ECHR, as well as breaching various international instruments. Bindmans Solicitors were concerned about the impact on the principle of equality before the law. Some of the examples given of cases where this would impact included family proceedings where one parent lives overseas; trafficking and kidnap victims; visa over-stayers; people in immigration detention, and those who seek review of actions of the UK government abroad, such as those challenging the ongoing review of alleged ill treatment of prisoners in Iraq. The Association of Lawyers for Children raised concerns about the possibility of children being left without a voice in what are often very sensitive proceedings with a huge impact on the child and, along with other respondents, noted the possibility for the infringement of Article 8 rights. They argued that children's guardians could find themselves excluded from independent legal advice. They noted the impact on solicitors required to gather evidence on whether their client satisfies what has been described as an unclear test, and the additional cost and delay this was likely to incur, particularly where vulnerable individuals are affected. Furthermore, local authorities in areas with a more ethnically diverse population could be disproportionately affected if they find themselves the only legally represented party and thus liable for an increased number of costs, including that of investigative stages. Finally, it was argued that the impact of exclusion from legal representation would in turn place additional strain on other services, such as the child protection system and medical and social care.

Much attention was drawn to the impact of victims of trafficking and kidnap, with the Church of England highlighting this in their response and the Lord Chancellor questioned on this aspect in the House of Commons. The legality of this measure was questioned, with some respondents pointing to the recent complaint made against the UK by the European Commission in relation to the restriction of benefits to those satisfying a residence test. It was suggested that any savings this made would in fact be lost, given the complexity of assessing whether an individual satisfied any such test and the inevitable challenges this would give rise to. The Bingham Centre noted the difficulties this would create in holding government to account, particularly as foreign nationals cannot be supported by interested parties. Bindmans solicitors noted that the proposals would, perhaps inadvertently, exclude UK-born babies from legal aid, having an important impact on family proceedings. They also noted that legal aid could end up being unavailable to British nationals living outside the UK, who may yet be subject to Government action in relation to property, financial or family matters.

No permission, no legal aid

A number of respondents noted that this proposal effectively relied on the selflessness of lawyers undertaking legal aid judicial review work. Others pointed out that it asks these same lawyers to absorb a great deal of risk. However, some felt that it would be workable if good quality lawyers were available, and noted similarities between this proposal and the current situation in the Court of Appeal. It was suggested that a better solution to the problem of weak cases being granted area lies with the Legal Aid Agency itself, who could exercise a greater degree of scrutiny.

A common argument made against this proposal was that of the importance of work at permission stage in ensuring that cases do not reach court, not because they are unsuccessful, but because some kind of settlement is reached. It was noted that well-executed work at this stage can, in fact, save a great deal of public money: it could have the perverse effect, in some cases, of discouraging mediation, settlement and the thorough preparation of cases.

The more legally-minded criticisms directed at this proposal focused on the UK's obligations under the European Convention on Human Rights and the impact that excluding vulnerable members of society from challenging public authorities. The Bar Council argued that the proposal would be open to challenge on the grounds that it constituted a disproportionate and irrational blanket rule. Treasury Counsel noted that the proposal could lead to costly disputes about whether pre-permission funding should be awarded.

No funding for borderline cases

The most common arguments made against this proposal were, firstly, the difficulty of assessing the chances of success a case may have, and secondly, that it is often these cases which go on to raise important issues and become leading cases in important areas of public law. The large number of Treasury Counsel who contributed to a joint response placed particular emphasis on the difficulty of assessing the chances of success, and noted that they will often be instructed to defend a case where the Government's likelihood of winning is slim.

The Bar Council argued that this proposal was unlikely to save any money as it would be necessary to err on the side of caution when making an assessment of chances of success in order to avoid additional challenges, and that in any case it would lead to a number of appeals, bringing with them additional cost and delay.

Respondents were critical of the fact that not only would judicial review funding be removed in these cases, but also funding for mediation and alternative dispute resolution. They also noted that the likelihood of individuals being able to pay for their own representation had been lessened by the changes to Conditional Fee Arrangements under the Jackson reforms.

Many respondents argued that the changes as a whole would, contrary to the stated aim of the Ministry of Justice, increase the impact on the public purse of this kind of work. This is due to a perceived rise in the number of litigants in person, who slow down the system, need additional assistance and may make mistakes which could jeopardise the case, as well as an increase in cases relating to the award or refusal of legal aid and the application of the various new tests proposed. The Local Government Authority, amongst others, argued that any savings to the Ministry of Justice's budget would be offset by increased pressure on the courts and statutory services, including children's services, welfare for those with no access to public funds, and safeguarding the vulnerable.

The next steps in the process are expected from the Ministry of Justice in the autumn of this year.

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