Family courts lead charge against legal aid cuts
A recent contested adoption highlighted the injustices caused by the LASPO cuts. Katie Brown and Connor Johnston applaud the role of family and other judges in challenging the changes
In our last article (November 2014 Legal Action 16), we highlighted the torrid time that the government has been having of late with the courts being called on to scrutinise the fairness and legality of the cuts to legal aid. Recent weeks have seen this trend continue.
First, at the end of October 2014, Sir James Munby, President of the Family Division, continued his apparent one-man war against the chaos caused by legal aid cuts in the family courts. The issue at the heart of In the matter of D (a child) (2014] EWFC 39) was whether a young boy should live with his parents, or whether he should be adopted outside of the family. His mother was described as having a borderline mild learning disability, while his father was found to have a more significant cognitive impairment. Munby LJ had to deal with the ‘profoundly disturbing fact’ that the parents did not qualify for legal aid and also lacked the funds to pay for legal representation in circumstances where ‘it is unthinkable that they should have to face the local authority’s application without proper representation’.
The legal application which formed the basis of the family proceedings was of a type for which legal aid is notionally available but – in contrast to other similar family law applications involving the care of children – is subject to a financial means test. The father’s disposable income of around £767.64 a month (£34.64 above the income threshold) meant that both he and the mother were financially ineligible, leaving them wholly dependent on the ‘goodwill of members of the legal profession’ acting pro bono. Munby LJ said a situation where the state had ‘simply washed its hands of the problem’ of its own creation, and, left the responsibility for ensuring that the parents were able to participate effectively in the proceedings to the ‘charity’ of the legal profession, was ‘both unprincipled and unconscionable’. On 7 January 2015, matters had developed so that the parents were now eligible for public funding (with a contribution to pay), which meant that there had to be no further consideration of alternative ways of funding the case from court funds, the local authority or the Legal Aid Agency (which Munby had originally ordered).
Meanwhile in mid-December 2014, the Court of Appeal in Gudanaviciene v Director of Legal Aid Casework  EWCA Civ 1622 upheld the decision of Collins J that the Lord Chancellor’s approach to exceptional funding for immigration cases was unlawful. Although the court was not required to adjudicate on the issue as part of the appeal, the judgment was also highly critical of the Lord Chancellor’s decision to refuse exceptional funding to a blind applicant with profound cognitive impairment who lacked the capacity to litigate. The court observed: ‘It is impossible to see how a man suffering from his disabilities could have had any meaningful involvement in the decision-making process without the benefit of legal representation.’ The judgment, which is extensive, contains the most authoritative domestic guidance on the circumstances in which legal aid should be granted in order to avoid a breach of an individual’s rights under the European Convention on Human Rights or the EU Charter of Fundamental Rights, and is essential reading for practitioners making exceptional funding applications.
Finally, and perhaps most dramatically, was the grant of an 11th hour injunction by the High Court, shortly before Christmas, stopping the government going ahead with plans to reduce the number of legal aid contracts allowing criminal defence firms to represent suspects in the police station from around 1,600 to 527. As readers will no doubt recall, the original plan to reduce the number of contracts to 525 had to be abandoned after the High Court labeled the consultation process which led to the decision ‘so unfair as to result in illegality’ (R (LCCSA and CLSA) v Lord Chancellor  EWHC 3020 (Admin)).
Following a short further consultation (to which YLAL, among others, responded), the government elected to increase the number to 527, only to be met by a fresh challenge brought jointly by the London Criminal Courts Solicitors Association and the Criminal Law Solicitors Association. At a contested hearing on 23 December 2014, Jay J accepted that there was a serious question over the legality of the government’s decision and that allowing the tendering process to continue would cause criminal legal aid firms unnecessary prejudice, and granted interim relief. The tendering process has now been suspended until the claim is determined by the High Court.
Outside of the courtroom, the legal aid cuts are receiving a similar level of scrutiny. The Justice Select Committee’s inquiry into the impact of changes to civil legal aid under the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) continues, and YLAL members Carita Thomas and Connor Johnston gave oral evidence to the inquiry on 21 October 2014. While on 20 November 2014, the National Audit Office (NAO) published a report of its findings into the impact of LASPO (Implementing reforms to civil legal aid), estimating that the reforms had generated additional costs of £3.4m to the Ministry of Justice alone, and criticising the government’s failure to ‘think through the impact of the changes on the wider system early enough’. This will no doubt provide food for thought for the Public Accounts Committee which announced its own inquiry into the full cost of the legal aid reforms on 27 November 2014. YLAL has now submitted evidence to the inquiry in part to clarify a suggestion that legal aid lawyers earn more than judges. Our members’ survey from 2012 provides clear evidence that this suggestion is simply wrong.
With the extended scrutiny of the government’s position on the legal aid system from both the courts and parliament itself, we hope that this will focus MPs’ minds on the importance of maintaining a workable publicly funded scheme in the run-up to the election.
See Use it or lose it, page 14; Feature, page 7; Comment, page 6.