In Re JM and others [2016] EWCOP 15, 10 March 2016, Mr Justice Charles, the vice-president of the COP, addressed the issue of representation in four test cases (originally five) dealing with the deprivation of liberty of vulnerable individuals. The test cases were representative of the thousands of similar cases each year that Charles J expects the court will have to hear. They concern those in which public authorities apply to the COP for a deprivation of liberty order and there is not a suitable family member or friend to represent the interests of a person subject to the order (COP Rules 2007 SI No 1744 r3A as inserted by COP (Amendment) Rules 2015 SI No 548 r5).

In his judgment, Charles J (at para 17) was scathing of the government’s failure to ‘face up to and constructively address’ the lack of ‘availability in practice’ of representatives and the attempt by ministers to pass on the responsibility to local authorities. He concluded that the government needs to find the necessary resources to fund representation in such cases and went on to suggest possible routes to do this. These included funding local authorities to provide advocacy services, increasing the cash available to the Official Solicitor to provide representation, or reviewing the availability of legal aid (see para 28).

Following the Supreme Court decision in the landmark case of P v Cheshire West and Chester Council [2014] UKSC 19, Charles J argued that, unless the resources are made available by the government, the COP will not be able to comply with the procedural requirements of European Convention on Human Rights art 5 (the right to liberty and security) and the common law. Pending a decision by the government on funding advocacy services, future cases in which no r3A representation is available are likely to be stayed by the court (para 27).

Reacting to the COP judgment, Luke Clements (pictured), co-author (with Pauline Thompson) of Community Care and the Law (5th edition, LAG, 2011), said that it was great to hear Charles J speak frankly in the judgment as, for too long, the judiciary had ‘witnessed the emasculation of social justice – in silence’. Clements believes the government’s decision to ‘pursue austerity economics’ has led to ‘vital social care support being slashed. This results in significant numbers of people being unnecessarily deprived of their liberty’. He believes the courts should call time on the government’s ‘austerity deception’ to ensure that ‘these detainees have basic safeguards, not least a representative’, which the law requires.