Litigating to save legal aid
Martha Spurrier and Laura Janes explain the state of play with key legal challenges to LASPO.
Collins J held that the exceptional funding scheme is not providing the safety net promised by parliament and is defective.
The campaign against the LASPO cuts has taken many forms, including demonstrations to mobilise public support, political lobbying and even a play by the Oscar-winning dramatist Rebecca Lenkiewicz. Although, there have been setbacks along the way, an effective weapon in the profession’s armoury has proved to be legal challenges to some of the act’s most damaging provisions. Below, we round up the main litigation successes and failures.
The residence test
The residence test means that unless you are (i) lawfully resident in the UK and (ii) have been lawfully present in the UK for at least 12 months, you will be ineligible for civil legal aid. There are some narrow exceptions, including members of the armed forces serving abroad, babies, asylum-seekers and refugees. For everyone else, the only ‘safety net’ is exceptional funding under LASPO s10.
The Public Law Project challenged the residence test on the basis that it is ultra vires, discriminatory and in breach of the common law and ECHR art 6, read with art 14. The Divisional Court (Moses LJ and Collins and Jay JJ) upheld the challenge, finding that the residence test was ultra vires of the enabling power in LASPO and discriminatory (R (Public Law Project) v SSJ  EWHC 2365 (Admin), 15 July 2014).
The Divisional Court judgment was successfully appealed to the Court of Appeal by the lord chancellor (Public Law Project v Lord Chancellor  EWCA Civ 1193, 25 November 2015). In a unanimous judgment delivered by Laws LJ, the Court of Appeal overturned the Divisional Court’s decision. The court found that, although the test was discriminatory, this was justified as a proportionate measure to achieve the legitimate aim of saving public expenditure. It also found that the introduction of such a test through secondary legislation was not ultra vires as LASPO s41(2)(b) is ‘clearly wide enough to encompass characteristics of a class which to a rational mind are material to the heightened efficiency of civil legal aid: an objective which plainly includes the saving of public funds’ (para 23). PLP has sought leave to appeal to the Supreme Court. At the time of writing, the lord chancellor had not laid a further statutory instrument to reintroduce the test.
LASPO s10 requires that exceptional funding be provided for people whose human rights or EU law rights would be breached, or would be at risk of being breached, if they did not have a lawyer.
In Gudanaviciene and others v Lord Chancellor and another  EWHC 1840 (Admin), 13 June 2014, a linked case on behalf of six people (including IS, see below) who had been refused exceptional funding, the Administrative Court (Collins J) held that the lord chancellor’s exceptional funding guidance was unlawful because it set too high a threshold for the grant of funding and that the guidance was wrong to suggest that ECHR art 8 would never require the provision of legal aid for immigration cases.
The lord chancellor appealed this decision to the Court of Appeal (R (Gudanaviciene and others v Director of Legal Aid Casework and another  EWCA Civ 1622, 15 December 2014). The court (Dyson MR and Richards and Sullivan LJJ) upheld the Administrative Court judgment in part. The court held that the test in the guidance was too high and that nowhere in the case law was it suggested that legal aid should only rarely be made available in these cases or that it would be ‘exceptional’. Nor was it right to say that exceptional funding should only be available where it could definitely be said that there would be a breach of the individual’s rights. Further, the guidance was wrong to suggest that the procedural obligations under ECHR art 8 could not require the provision of legal aid in immigration cases.
On 15 July 2015, the Administrative Court handed down a second judgment in IS v Director of Legal Aid Casework and another  EWHC 1965 (Admin). This was a test case to challenge the manner in which the exceptional funding scheme has been implemented and operated. Collins J held that the application procedure for exceptional funding is ‘far too complex’ (para 105) for applicants in person, while the rigidity of the merits test is ‘wholly unsatisfactory’ (para 106). He held that the scheme is not providing the safety net promised by parliament and is defective, as it does not give any right to appeal where an individual who lacks capacity will otherwise be unable to access a court or tribunal.
Campaigners took to the streets to defend legal aid, but legal action has also played key role
The director of legal aid casework has been granted permission to appeal to the Court of Appeal.
The inquest exceptional funding guidance has also been the subject of challenge. In R (Letts) v Lord Chancellor  EWHC 402 (Admin), 20 February 2015, Green J held that the guidance was unlawful because it suggested that the only cases in which legal aid should be provided were where there was an ‘arguable breach’ of ECHR art 2. This is an incorrect reading of the case law, which shows that funding may be required in public interest cases and will be required where the art 2 duty arises automatically, such as in custody deaths, regardless of whether there is an arguable breach of art 2.
Two prison law charities are challenging the cuts to prison law legal aid, which removed from scope a wide range of areas including segregation, pre-tariff review hearings, mother and baby unit cases, category A reviews and internal adjudications. The lord chancellor’s position, until very recently, was that exceptional funding is not available in prison law cases.
The challenge is brought on the basis that the removal of key areas of prison law from the scope of legal aid creates an unacceptable risk of unlawful and unfair decision-making and breaches the right of access to the courts under the common law and ECHR art 6. The claim was refused permission by the Divisional Court (R (Howard League for Penal Reform and another) v Lord Chancellor  EWHC 709 (Admin), 17 March 2014) but in July 2015, the Court of Appeal allowed the claimants’ appeal against the refusal of permission ( EWCA Civ 819, 28 July 2015).
The substantive hearing will take place in January 2017 before the Court of Appeal. Following the grant of permission, the lord chancellor indicated that applications from prisoners for exceptional funding would be considered, although there is no guidance as to how this would work in practice and he has indicated that it will only be granted in the very limited circumstances where ECHR art 8 is engaged.
Although domestic violence cases remain in scope for legal aid in principle, victims must satisfy strict evidence requirements before they are able to get funding. The charity Rights of Women brought a challenge to those requirements, contained in Civil Legal Aid (Procedure) Regulations 2012 SI No 3098 reg 33. It argued that the evidence gateway was too difficult for victims of domestic violence to satisfy, in particular:
•there was no way for victims of controlling behaviour or financial abuse to evidence this, the gateway being directed at physical abuse;
•it was virtually impossible for those at a real risk of domestic violence, but who had not suffered it yet, to satisfy the evidence requirements; and
•there was no discretion to accept evidence that fell outside of the prescribed conditions.
The Divisional Court (R (Rights of Women) v Lord Chancellor and another  EWHC 35 (Admin), 22 January 2015, Fulford LJ and Lang J) held that that the regulations were lawful, finding that the power to make evidential requirements for domestic violence victims was a wide one and that the requirements did not frustrate the purpose of LASPO. The court was particularly influenced by the fact that the regulations had been the subject of extensive parliamentary debate.
‘The Invisible’ dramatised the plight of those no longer eligible for housing advice because of legal aid cuts
© HELEN MAYBANKS
Rights of Women was granted permission to appeal to the Court of Appeal. The case was listed for January 2016.
‘No permission, no payment’ regulations
The Civil Legal Aid (Remuneration) (Amendment) (No 3) Regulations 2014 SI No 607 made payment for work done on applications for permission in judicial review claims conditional on the grant of permission or, for cases that did not reach the permission stage, on the Legal Aid Agency exercising a discretion to pay providers.
A group of legal aid solicitors challenged the regulations on the basis that they were ultra vires, contrary to the LASPO statutory purpose and that they would have a chilling effect on judicial review.
In R (Ben Hoare Bell and others) v Lord Chancellor  EWHC 523 (Admin), 3 March 2015, the Divisional Court (Beatson LJ and Ouseley J) held that the regulations were contrary to the LASPO statutory purpose because, in certain circumstances, they were disconnected from their legitimate aim of incentivising providers to look more carefully at the merits of the claim. These circumstances included where the court ordered an oral or rolled-up hearing, thus inflating the costs risk to the provider in a way that the provider could not predict or control, and where the defendant withdrew the decision under challenge.
As a result of the court’s decision, the lord chancellor agreed that the 2014 regulations should be quashed.
On 26 March 2015, the lord chancellor laid the Civil Legal Aid (Remuneration) (Amendment) Regulations 2015 SI No 898. Those regulations add three circumstances in which payments will be made in judicial review claims where permission is refused. These are:
•when the defendant withdraws the decision and the withdrawal results in the refusal of permission or the court neither granting nor refusing permission;
•when the court orders an oral hearing to consider permission for the claim or for an appeal; and
•when the court orders a rolled-up hearing.
In cases that do not reach the permission stage, claimant lawyers will need to persuade the LAA to exercise its discretion to pay them.
Crime consultation judicial reviews
Following the Transforming Legal Aid consultation, the lord chancellor decided to reduce the number of duty provider work contracts from about 1,600 to 525. Professional bodies representing criminal solicitors, the London Criminal Courts Solicitors’ Association and the Criminal Law Solicitors’ Association, challenged the consultation process (R (LCCSA and another) v Lord Chancellor  EWHC 3020 (Admin), 19 September 2014).
During the consultation process, the lord chancellor commissioned two independent reports to determine how many duty provider contracts would be available. Despite a request from the CLSA to delay the consultation until the independent research was available for comment, he refused to publish the reports until the final decision was made.
The claimants argued that they were unable to challenge the assumptions (many of which were provided by the Ministry of Justice) underpinning the outcome of the research upon which it was assumed the new model was based. Burnett J held that consultees should be provided with ‘sufficient information to enable an intelligent response’ (para 34, citing Devon CC and another v SSCLG  EWHC 1456 (Admin), 21 June 2010). The accepted test for whether a consultation has been conducted lawfully is ‘whether the process was so unfair as to be unlawful’ (para 49). The court recognised that the ‘potential impact on the livelihoods of solicitors and access to justice’ (para 35) meant that a ‘high degree of fairness was required’ (para 37).
The court held that the refusal to allow those engaged in the consultation process to comment on the two reports was unlawful and so the decision to limit the number of duty provider contracts to 525 was quashed.
The MoJ then carried out a short further consultation and decided to increase the number of duty contracts from 525 to 527.
The Law Society, the CLSA, the LCCSA and two criminal firms challenged the re-consultation. They argued that, in reaching his decision, the lord chancellor had breached his Tameside duty to ‘ask himself the right question and take reasonable steps to acquaint himself with the relevant information to enable him to answer it correctly’ (SSES v Tameside MBC  AC 1014 at 1065).
The Divisional Court dismissed the challenge (R (LCCSA and others) v Lord Chancellor; R (Law Society) v Lord Chancellor  EWHC 295 (Admin), 18 February 2015). Laws LJ stated the ‘important truth’ that ‘[p]rofessionals whose world has changed may look the new world in the eye and find the means to live in it’ (para 42). In other words, in his view, providers would adapt to survive.
The claimants’ appeal to the Court of Appeal was dismissed and the Divisional Court’s reasoning upheld (R (LCCSA) v Lord Chancellor  EWCA Civ 230, 25 March 2015).
In October 2015, the outcome of the tender was announced. A judicial review challenging the fairness of the procurement process for the new criminal legal aid contracts was issued by the Fair Crime Contracts Alliance in November 2015. The case is due to be heard by the Divisional Court in 2016. In addition, over 100 individual procurement law challenges, sought in accordance with CPR Pt 7, will be heard in the Technology and Construction Court.
It is expected that the litigation will result in a significant delay in the start date of the new contracts. ■