This is the second in a series of four articles, all of which present radical ideas for potential changes to legal aid in England and Wales, rooted in current practice in Nordic jurisdictions. The proposals are controversial and may not be suitable for wholesale adoption but aim to shake up thinking about legal aid and stimulate further debate. Here, Anna Barlow argues that the current scope restrictions are failing to achieve policy objectives and recommends a broader approach.
, I suggested that we should scrap the prospects of success test for civil legal aid, or at the very least the percentage element of that assessment. I argued that the test was not consistent with the right to a fair hearing, as a litigant may be in just as much need of legal assistance (possibly even more so) if their case is weak. This month, the focus is on scope, and the issue of need for assistance will again prove central.
Whatever its commitment to access to justice, no government can afford unrestricted legal aid. One key aim of any legal aid scheme is therefore to find an appropriate balance between limiting public expenditure and ensuring an acceptable measure of access to justice for those without means. A tempting ‘quick fix’ if costs are too high is to limit scope, with predictable immediate savings as a whole section of expenditure is simply deleted from the balance sheet. However, as emphasised in Northern Irish policy discussion, ‘[r]educing the scope of legal aid is an effective way to make savings but can severely reduce access’ (A strategy for access to justice: the report of Access to Justice (2)
, Department of Justice Northern Ireland, September 2015, para 6, page 10).
Scope restrictions are common in many jurisdictions, although the extreme post-Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) situation in England and Wales is rarer (Norway, however, has similar restrictions). There are several mechanisms for scope limitation. Very commonly, all cases are in scope unless barred; exclusion is then generally by case type (for example, in Sweden). Alternatively, cases are only in scope if positively identified, either by means of a list of included case types (eg, Norway) or by including certain judicial or quasi-judicial venues. As venues often differentiate between cases by subject matter, this is, in practice, also a form of subject scope restriction. In several jurisdictions, including Scotland and Northern Ireland, a list of venues is included and then subject areas are excluded. England and Wales manages to use all possible methods: included case types; excluded case types; excluded work types (advocacy); and included venues.
The decision on which case types are to be covered is political; each jurisdiction decides which cases it thinks are worth prioritising over others.
Whatever the mechanism used, the decision on which case types are to be covered is political; each jurisdiction decides which cases it thinks are worth prioritising over others. Sometimes, we are given a glimpse into the logic behind these decisions, as was the case pre-LASPO:
In reaching our view about which types of issue and proceeding should continue to justify legal aid, we have taken into account the importance of the issue, the litigant’s ability to present their own case (including the venue before which the case is heard, the likely vulnerability of the litigant and the complexity of the law), the availability of alternative sources of funding and the availability of alternative routes to resolving the issue
(Proposals for the reform of legal aid in England and Wales
, CP12/10, Cm 7967, Ministry of Justice, November 2010, para. 4.12, page 33).
Grouping these gives us, broadly speaking, two issues: first, whether the client needs legal aid or whether they can manage without, either because of the availability of other help or avenues for resolution, or because no help is needed; and second, the importance of the issue.
The need for assistance
The first of these, the question of whether the client should be able to manage without legal assistance, is salient in many jurisdictions. In Sweden, the overall criterion for civil legal aid is that the individual needs legal assistance and this cannot be obtained any other way.1Rättshjälpslag (Legal Aid Act) (1996: 1619), 7 §.
Similarly, the starting point regarding scope in Finland is the statement that legal aid will be given if there is a ‘need’ for expert assistance,2Oikeusapulaki (Legal Aid Act) 5.4.2002/257, 1 §.
and a small number of case types is generally excluded, on the basis that these do not require the help of a lawyer.3Oikeusapulaki 5.4.2002/257, 6 §.
The common exclusion of small claims cases relies on this rationale, as does the non-inclusion of representation before UK tribunals. Jurisdictions in which legal expenses insurance plays an important role, such as Sweden, refuse legal aid for any case where the individual has insurance; legal aid is not needed if the case can be funded another way.
Needing help with representation is also the core rationale for legal aid according to the European Court of Human Rights (ECtHR); states should focus on whether ‘assistance proves indispensable for an effective access to court’ (Airey v Ireland App No 6289/73, 9 October 1979
at para 26).4See also McVicar v UK App No 46311/99, 7 May 2002.
Conversely, if the individual can obtain access to court, and a fair hearing, without assistance, legal aid is not mandated by article 6 of the European Convention on Human Rights
Importance of the case
Consideration of whether a case is sufficiently important to justify a grant of legal aid can be from an objective or subjective perspective. The UK government’s approach under LASPO is clearly objective, and somewhat restrictive, as, for example, ‘proceedings where clients are primarily seeking monetary compensation will not generally be of sufficient importance to merit public funding’ (Proposals for the reform of legal aid in England and Wales, para 4.17, page 33). Indicating a somewhat moralistic approach, the government also warned that ‘[w]here the issue is one which arises from the litigant’s own personal choices, we are less likely to consider that these cases concern issues of the highest importance’ (para 4.19, page 34). This is dubious logic, as can be seen from a simple example: having a family is – for most – a choice, but resulting legal difficulties are generally agreed to be of very high importance.
Other jurisdictions consider subjective importance to be more significant. In Northern Ireland, scope was discussed in a 2015 review, and it was recommended that ‘[t]he categories of non family cases retained within scope should reflect priorities based on [inter alia] the importance of the proceedings to the client’ (A strategy for access to justice
, para 51, page 17). In Norway, the very definition of legal aid in the legislation is help in legal matters ‘of great importance for the welfare of the individual’ (Lov om fri rettshjelp (Legal Aid Act), LOV-1980-06-13-35, §1). A subjective consideration of the importance of what is at stake has also been held by the ECtHR to be relevant to whether legal aid is necessary for a fair hearing.5See, for example, Steel and Morris v UK App No 68416/01, 15 February 2005 at para 61; July 2005 Legal Action 22.
Scope: a blunt tool
These two central policy justifications cannot explain some common exclusions from scope, such as business and land disputes. These cases may have very significant consequences for the individual, the law may be complex and there is unlikely to be free assistance available from other sources; under the ‘need for assistance’ and ‘importance of the case’ justifications, they should be funded. Similar arguments could be made for several other categories excluded under LASPO, raising a suspicion that budgetary and political considerations are the real drivers. Nevertheless, we are entitled to take policy at face value and judge decisions on scope against the justifications given.
A major problem with using scope to restrict legal aid to important cases where it is needed, is that it is too blunt a tool. The approach not only makes sweeping assumptions about the complexity of whole areas of law but also leads to the necessity for exceptional case provisions to deal with situations where it is manifestly impossible for a particular individual to have a fair hearing in an excluded case category without legal aid. In truth, the only appropriate subject scope restrictions are the exclusion of proceedings genuinely so simple that they could be negotiated without help by everybody. For all other matters, the better question is whether that person needs legal help, not whether that kind of case requires it.
On a generous view, most people might need legal help with most litigation. In Finland, it has been concluded that, while parties can manage simple legal matters themselves, court processes have developed in such a way that legal assistance is generally needed, particularly bearing in mind evidential requirements.6Regeringens proposition RP 82/2001, page 43.
Very few types of matter are excluded from legal aid as a consequence, but the need for assistance is considered on a case-by-case basis as part of the individual merits test. Legal aid may be refused if the applicant is able to protect their own interests, with regard to, inter alia, legal complexity, evidence requirements, age and personal characteristics.7Oikeusavun käsikirja (Legal aid handbook) 2013, section 2.2.
The test thus includes more general, objective elements but also, crucially, a subjective element, in that the personal characteristics of that individual are relevant in deciding whether assistance is needed – a more tailored approach than simply asserting that, for example, all social security cases are so simple that all individuals can manage without help.
The need for representation also features in merits testing in England and Wales. One of the standard criteria for civil representation is that ‘there is a need for representation in all the circumstances of the case including: (i) the nature and complexity of the issues; (ii) the existence of other proceedings; and (iii) the interests of other parties to the proceedings’ (Civil Legal Aid (Merits Criteria) Regulations 2013 SI No 104 reg 39(e)). This overlaps extensively with the scope rationale put forward by the government, which begs the question of whether this double consideration of need is necessary, particularly as broad scope limitations do not sit well with international fair hearing obligations and necessitate exceptional case processes. Assessments of whether an individual client requires help in a particular case, and whether the matter is sufficiently important to the client, should, it is contended, be left to the merits test.
Scope restrictions, as suggested above, can be useful for reasons of administrative simplicity; it is quicker and cheaper to deal with cases by category than by making individual assessments. This could be partially achieved, without resorting to assumptions by case type, by constructing scope categories according to the characteristics of the claimant. This has been suggested in Northern Ireland and in Norway, although not yet taken up in either jurisdiction. A review in Northern Ireland in 2015 pointed out that, while historically priorities had been set according to case type, ‘[i]ncreasingly, justice issues are being considered according to the needs of particular clients or client groups’ (A strategy for access to justice
, para 26.18, page 246). In 2009, the Norwegian government noted the idea of exempting certain groups from legal aid scope restrictions; these could include disabled people, those addicted to drugs, and asylum-seekers.8St.meld. nr. 26 (2008–2009), para. 9.3.1.
Even in England and Wales, there is an element of this kind of thinking, albeit incomplete. In the LASPO consultation, the government considered ‘whether, in each type of case, the litigants bringing proceedings are likely to be predominantly from a particularly physically or emotionally vulnerable group, for example, as a result of their age, disability or the traumatising circumstances in which they are bringing proceedings’ (Proposals for the reform of legal aid in England and Wales, para 4.23, page 34). This is a clear acknowledgement that vulnerability may make someone ‘more likely to need legal aid to help them find a resolution to their problem’ (para 4.23, page 34), which should argue against the type of blanket refusals inherent in subject scope limitations.
Current scope restrictions do not meet the policy goals that are used to justify them. Scope needs rethinking to ensure that legal aid is provided to those who really need it without crass generalisation on the basis of case type.
Scope in civil legal aid should be reconfigured to only exclude extremely simple matters but to include groups of particularly vulnerable clients. Need for assistance and the importance of the case should not lead to exclusion of large swathes of subject areas, but should be considered at an individual level, as part of the merits assessment.