Seventy years of making good law and making law good
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Marc Bloomfield
This year sees the 70th birthday of civil legal aid. Like its better-known sibling the health service, which turned 70 last year, the civil legal aid scheme has enabled huge achievements of which we should be proud.
Over the course of 2019, LAG will celebrate the occasion by shining a light on the enormous contribution civil legal aid has made to developing and shaping the law for the needs of the people it was invented to serve. With this in mind, I asked civil lawyers about the legal aid cases they cite most to promote their clients’ rights.
Russell Conway, a housing lawyer at Oliver Fisher Solicitors and LAG trustee, contributed some of his own cases that have developed the law not only for those who qualify for legal aid, but for everyone. For example, Hammersmith and Fulham LBC v Monk [1992] AC 478 (HL) confirmed that one of two joint tenants can terminate a tenancy. It is often used in domestic violence cases, enabling a partner who has been abused to terminate the tenancy and obtain housing elsewhere.
The Anti Trafficking and Labour Exploitation Unit, a specialist legal charity that provides safety, recovery and redress for victims of trafficking, offered HD (Trafficked women) Nigeria CG [2016] UKUT 454 (IAC); February 2017 Legal Action 32. This decision developed existing guidance on how to approach people trafficked to the UK, to focus on the sustainability of support, individual vulnerability and the period of time after a woman leaves any shelter or ceases to be supported.
Young Legal Aid Lawyers co-chair Oliver Carter, a public law and human rights solicitor at Irwin Mitchell, offered R (Moseley) v Haringey LBC [2014] UKSC 56, which affirmed the criteria on lawful consultation by public bodies. I recently used it to successfully challenge the closure of a day centre for adults with disabilities by Birmingham City Council, arguing that it had not conducted a lawful consultation with service users and their families before making the decision.
Chris Topping, human rights specialist at Broudie Jackson Canter, said police action lawyers use Keegan v UK App No 28867/03, 18 July 2006; October 2006 Legal Action 17 and December 2006 Legal Action 28 all the time. That case went all the way to Strasbourg, where the court clarified the interplay between police searches and the right to privacy under article 8 of the European Convention on Human Rights (ECHR).
Creighton & Partners family lawyer Heather Thomas regularly relies on Re B (a child) [2013] UKSC 33 to remind courts and local authorities that children must only be placed for adoption when ‘nothing else will do’.
Kushal Sood, a lawyer specialising in prison law, cited Osborn v Parole Board and other appeals [2013] UKSC 61; February 2014 Legal Action 20, which elaborated on the notion of common law fairness in English law. In establishing the importance of a fair hearing, Lord Reed remarked that ‘Adam was allowed a hearing notwithstanding that God, being omniscient, did not require to hear him in order to improve the quality of His decision-making’ (para 69).
It is not only lawyers who use cases, but also campaigning organisations. Article 39, which fights for children’s rights in institutional settings in England, said it frequently cites R (C) v Secretary of State for Justice [2008] EWCA Civ 882; March 2009 Legal Action 36, a case that held that rules allowing children in secure training centres to be restrained for not doing as they were told breached ECHR article 3 (prohibition on inhuman and degrading treatment).
Yet this amazing work remains under threat following the Legal Aid, Sentencing and Punishment of Offenders Act 2012, with many lawyers leaving legal aid work and new lawyers struggling to forge a career, let alone take the time to soak up the rich jurisprudence developed by legal aid practitioners. With the government’s delayed statutory review of its devastating cuts due to report this year, LAG plans to highlight these achievements, many of which have been brought about by its authors, members and friends.
We plan to celebrate legal aid’s first 70 years in the magazine and at a special conference in London on 5 April 2019. Lady Hale will give the keynote speech, and delegates will hear from experts across different fields about key cases and areas for development to improve the law. The opportunity each month to peek into the world of colleagues through the lens of high-quality legal updates is, for me, one of the best things about Legal Action. As with any discipline, awareness of the limits of your own knowledge, and who to go to when you reach those limits, is vitally important. I hope the conference will be a great opportunity to bring the Legal Action experience to life and showcase some great work.
In October 2017, the government launched its ‘Legal Services are GREAT’ campaign to ‘promote the UK’s outstanding legal services worldwide’. According to the Ministry of Justice (MoJ), the sector is ‘one of the UK’s greatest exports and has supported trade and commerce around the world for generations. It’s worth £24bn to the UK economy every year, and is at the heart of the UK’s future as a global, outward-looking, free-trading Britain’. The spend on legal aid now stands at around just £1.6bn a year, a tiny fraction of what the legal industry generates as a whole; however, over the past 70 years, legal aid cases have made a huge contribution to our jurisprudence, which might well give credence to the claim that legal services are great.
Every day, Legal Action readers help ordinary people benefit from and challenge the law, drawing on years of case law and changes brought about by dedicated colleagues. In the course of 2019, LAG plans to celebrate 70 years of civil legal aid work by showing how it has made good law and made the law good.

About the author(s)

Description: Laura Janes - author
Dr Laura Janes is the founder of Young Legal Aid Lawyers. She is LAG's chairperson, legal director at the Howard League for Penal Reform and...