The legal framework
From 1 April, the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) overhauled the statutory framework for legal aid in England and Wales. The areas of law that remain eligible for legal aid are contained in part 1 of schedule 1 to LASPO. The areas of law that are being taken out of scope, in whole or in part, are: education, housing, non-asylum immigration, welfare benefits, debt and private family law.
However, section 10 of LASPO provides the new director of legal aid casework with the power to provide ‘exceptional funding’ for cases that are out of scope. Part 8 of the Civil Legal Aid (Procedure) Regulations 2012 indicates that providers of legal services will not have delegated powers to grant exceptional funding. Instead, an application must be made to the director for an ‘exceptional case determination’.
Section 10(3) of LASPO states that an exceptional case determination is a determination:a) that it is necessary to make the services available to the individual under this part because failure to do so would be a breach of: 1) the individual’s convention rights (within the meaning of the Human Rights Act 1998), or2) any rights of the individual to the provision of legal services that are enforceable EU rights, orb) that it is appropriate to do so, in the particular circumstances of the case, having regard to any risk that failure to do so would be such a breach.
Guidance on the exceptional funding regime has been produced by the lord chancellor. Where an application for exceptional funding under section 10 of LASPO is refused, there is a procedure for seeking an internal review of that decision, but no provision for further appeal. A refusal to grant exceptional funding that is upheld on an internal review will therefore be amenable to challenge only by way of judicial review.
When will the European Convention on Human Rights (ECHR) require the provision of exceptional funding?
Right to a fair hearing
Article 6(1) of the ECHR guarantees that every individual shall be entitled to a fair hearing in the determination of their civil rights and obligations. Article 6 does not grant an automatic entitlement to legal aid in civil cases. However, the right of access to a court, one of the components of article 6(1), includes the right to be provided with legal aid in certain circumstances. The Court of Appeal in Pine v Law Society described the right to legal aid as follows: ‘[O]nly in exceptional circumstances, namely where the withholding of legal aid would make the assertion of a civil claim practically impossible, or where it would lead to obvious unfairness of the proceedings, can such a right be invoked by virtue of article 6(1) of the convention.’
Advisers should consider the following factors when assessing whether article 6 requires the provision of legal aid in their case:
- The importance of what is at stake for the litigant.
- The litigant’s ability to represent him or herself effectively.
- Whether the proceedings are likely to entail a degree of emotional involvement incompatible with the objectivity required by advocacy in court.
- The complexity of the relevant law and procedure.
- The financial implications for the litigant if he or she were unsuccessful.
- Whether provision can be made to achieve effective access to a court, without recourse to legal aid.
The right to life, and the prohibition of torture and inhuman and degrading treatment and punishment
The positive obligations under articles 2 and 3 of the ECHR include the duty to conduct effective investigations into deaths that may have been caused by state agents and allegations of ill-treatment. This may give rise to an obligation to provide legal aid to enable the family of the victim or the claimant to participate effectively in the investigation.
Right to a private and family life
Article 8 of the ECHR provides ‘significant procedural safeguards against inappropriate interferences with the substantive rights protected by article 8’. While the European Court of Human Rights has not found a breach of article 8 as a result of the refusal to grant legal aid, it has suggested that ‘the considerations concerning access to legal aid may be relevant when assessing the adequacy of procedural protection under article 8 of the convention’.
When will EU law require the provision of exceptional funding?
Charter of fundamental rights
The Charter of Fundamental Rights of the EU requires member states and the institutions and bodies of the EU to comply with its provisions when they are implementing EU laws. Article 47 of the charter provides for the right to a fair hearing. Article 47(3) states that ‘legal aid shall be made available to those who lack sufficient resources insofar as such aid is necessary to ensure effective access to justice’. However, article 52(3) of the charter provides that the scope of charter rights shall be the same as those in the ECHR and the ‘explanation’ relating to article 47 (2007/C 303/2) states that provision should be made for legal aid ‘in accordance with the case law of the European Court of Human Rights’ (see the decision of the Court of Justice of the EU in DEB v Germany). This suggests that article 47 may not take litigants much further than article 6 of the ECHR.
Council directive 2002/8/EC
This provides that persons involved in cross-border disputes are entitled to receive appropriate legal aid to ensure their effective access to justice. Article 3 of the directive provides that legal aid may be appropriate when it guarantees: (a) pre-litigation advice with a view to reaching a settlement prior to bringing legal proceedings; and (b) legal assistance and representation in court, and exemption from, or assistance with, the cost of proceedings.
Exceptional funding project
The Public Law Project is running a scheme to assist people with making exceptional funding applications and challenging refusals of funding where appropriate. Advisers and solicitors will be able to refer to PLP clients who need to make applications for exceptional funding or challenge funding refusals. PLP’s aim is to help individuals get exceptional funding, and to challenge unlawful and unfair Ministry of Justice decision-making. Details can be found on the website.
Martha Spurrier is a barrister at the Public Law Project