Graham Turnbull Essay Competition
Socrates: These cuts to civil legal aid seem rather immoral, do you not think, my friend?
Lawyer: Their morality is irrelevant. Both in theory and in practice, these cuts are contrary to the European Convention of Human Rights.
- The Graham Turnbull Essay Competition 2013: The Law Society’s human rights committee runs an annual human rights essay competition for law students across England and Wales. Graham Turnbull was an English solicitor, who did much to promote respect for human rights. Graham was killed in February 1997, aged 37, while working as a human rights monitor on the United Nations Human Rights Mission in Rwanda. The committee founded the competition in 1998 to honour Graham’s commitment to human rights. It aims to encourage awareness and knowledge of international human rights issues and remedies among young lawyers.
- The topic for the competition in 2012 was: ‘In view of the scope and extent of civil legal aid cuts, is the UK in breach of its obligations under the European Convention on Human Rights?’
- The essay competition was open to all students from around the world who were less than three years’ qualified. Six essays were shortlisted and the winner and runner-up were chosen by Roger Smith OBE, former Director of JUSTICE.
- Niall Coghlan was the winner and was awarded a prize of £500 from the Graham Turnbull Memorial Fund; the runner-up was Jennifer Blair who was awarded book tokens to the value of £250 (donated by LexisNexis Butterworths0 and Petras Borisovas won a new award of £100, sponsored by the Human Rights & Equality Consultancy, to recognise creativity.
- Below is Niall’s essay and we will run Jennifer and Petras’s artcles shortly.
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Socrates: These cuts to civil legal aid seem rather immoral, do you not think, my friend?
Lawyer: Their morality is irrelevant. Both in theory and in practice, these cuts are contrary to the European Convention of Human Rights.
S: I doubt law can stop them. Show me why I’m wrong.
L: Numerous legal organisations have declared as much (PDF). There are minor points on Article 8 and Article 2 Protocol 1, but the main thrust is that these cuts breach Article 6: the right to a fair trial.
S: Does Article 6 gives a right to legal aid?
L: Yes. Well, it does, but only in criminal cases (6(3)(c)).
S: And how much of the legal aid’s budget goes on criminal cases?
L: £1.2bn of the £2.1bn pre-cuts. £385m is to be cut. The previous government felt civil aid was too low, so sought to cut criminal aid to boost civil.
S: But these Coalition cuts almost exclusively target civil aid. The fact criminal aid has not been cut, despite being the bigger amount, suggests the government feels bound by 6§3, so international law is doing something.
L: I suppose. But the cuts to civil aid are still a breach of 6(1).
S: Why?
L: Because the court held in Airey that 6(1) would be meaningless if court access were merely ‘theoretical’; ‘practical and effective’ access is required, and, in that case, it was held legal representation was necessary. As the applicant could not afford this, legal aid was required. Clearly, these cuts breach that.
S: So the court held there was a general right to legal aid? Why is the country not in breach already for defamation cases being given no funding?
L: Fine, it is a little more complicated than that. First, not all civil actions come within 6(1) – only ones affecting ‘civil rights and obligations’.
S: And what constitute civil rights?
L: Well, now you mention it, this is not a straightforward question. Within 6(1), ‘rights’ are defined objectively by the Court, not countries; however, the starting point for determining this is what rights are conferred under national law. 1 This is a question of substance, not labelling. Only the procedure, not the substance, of those rights is then protected.2 Finally, it applies only to private rights, not public ones, although private rights have been construed very widely by the Court.3
S: But there is a consistent, though complex, set of rules as to what is a civil right?
L: This is the other problem. The Court has progressively widened 6§1, but there is little principle as to what constitutes a right: welfare is; taxation is not.4
S: Yet you are sure the cuts affect rights?
L: They must do. The vast majority of the cuts for legal representation fall on family cases.5 Not only do these inherently engage Article 8, the right to family life, but the Court has consistently held they form rights under 6§1.6 Employment, which is to be cut by 94%, does too.7 Same goes for clinical negligence.8
S: What about, say, immigration? After family, this is the largest category of cases.
L: No, immigration cases do not fall under 6§1. In fact, the Court recently declared even asylum cases do not engage it.9
S: Why are asylum cases not cut, then?
L: Checking LASPO, immigration cases are only protected when they engage other rights – like domestic violence.10 And asylum itself is protected because of obligations under the Refugee Convention and ECHR 2-3, not 6§1.11
S: Again, then, international law is successfully dictating certain minimums. Is housing a right?
L: This is the fourth-biggest category of cuts. And no, the Act excludes all housing cases except those involving the loss of a home, which is all the Court requires.12
S: So in fact, some of these cuts do not even engage Article 6 in the first place, meaning legal aid is irrelevant?
L: Well, they might. The BIHR argues that immigration cases often involve Article 8 points, because of which they might be held to affect civil rights.13
S: Does the Court’s case-law support this?
L: Admittedly, Pellegrin noted ‘The fact that the exclusion order incidentally had major repercussions on the applicant’s private and family life or on his prospects of employment cannot suffice to bring these proceedings within the scope of civil rights protected by [6(1)].’14 So perhaps not.
S: Nevertheless, the bulk of the cuts – on family and employment, at least – do affect civil rights. And under Airey, these rights will give rise to a right to legal aid?
L: This is the second complexity. The answer is: not always. It depends on the facts of the case.
S: How so?
L: Anxious to dispel accusations that it was creating an unlimited legal aid liability, Airey warned against ‘generalising’ its conclusions. Everything depended on a case’s ‘particular circumstances’. It also noted that legal aid was not the only way to guarantee access to the court: ‘simplification of procedure’ and other schemes could be used.
S: Hence the government’s proposal of using conditional fees for clinical negligence cases?
L: Yes.
S: And what ‘particular circumstances’ are required to breach 6(1)?
L: This was laid out fully in a later case, Steel. A pair of hippies handed out pamphlets criticising McDonald’s. The subsequent libel trial was found to breach 6(1) by the court. It gave three criteria: a) what is at stake, b) the legal and procedural complexity and c) the applicant’s capacity (61).
S: Now, taking Airey and Steel together, just how complicated and grave does a case have to be to be to reach this threshold?
L: Admittedly, these cases set a high bar. In Airey, the applicant was seeking divorce from an abusive husband. This could not be obtained in the District Court, ‘where the procedure is relatively simple, but only in the High Court.’ The legal fees would be more than her yearly income.
S: And Steel?
L: Here, the bar was still higher. McDonald’s spent £10m on the case; the defendants were penniless. The trial lasted a year and involved 130 oral witnesses. The case was held to be so ‘exceptionally demanding’ that, given the extreme disparity in legal arms, unfairness was found.
S: And, if I remember, it was reported at the time that the Court had held on six previous occasions that the lack of legal aid for defamation cases did not breach 6(1).
L: Yes, this is true. The court does seem to find only truly exceptional cases in breach.15
S: So, returning to the cuts: will they reach the Steel standard of unfairness, as you argue?
L: Procedurally, the vast majority of family cases are held at the County Court or below.16 And few employment cases surpass the Employment Appeal Tribunal, which is supposedly simple enough for most claimants to self-represent.17 Nevertheless, there will be many cases that are too complicated for self-representation, so I think there is still a breach.
S: Let’s pause and look at these ‘exceptional’ cases properly. Is there any way an exceptional case can be funded under the Act?
L: Of course: the Director of Legal Aid can allow funding in exceptional circumstances, specifically defined as cases in which a lack of funding would breach the ECHR or EU law.18
S: I see. So where is the breach of 6(1)?
L: I may have misspoken before. It seems the Act has been drafted precisely to provide the minimum level of funding compatible with 6(1). So yes, in theory, there is no breach.
S: If this is how it was drafted, this is unsurprising. At the start of our conversation, though, you mentioned the Act would also be in breach in practice. Perhaps you will find more luck, if you tread more modestly, on these grounds.
L: There are three ways in which it could still be found in breach. The first is that the Act does not require an independent review of the Director’s decisions on funding exceptional cases. This could prove arbitrary and thus contrary to 6(1).19
S: Yes, though this could be quickly remedied by setting up such an independent review system.20 The second?
L: The second possibility is that the Court might step beyond the current case law on legal aid. The Court does emphasise the evolving, ‘living document’ nature of the Convention. However, this would be surprising. As we saw in Airey, the court is very wary about creating unlimited liability; in Steel, they noted ‘the limited financial resources of most civil legal aid schemes’, meaning states may ‘establish priorities which may exclude’ whole categories from aid.21
S: That said, Steel was about defamation law, a particularly high-risk type of case. They concluded in another case that this high-risk nature meant their wholesale exclusion ‘had not been shown to be arbitrary.’22 Might the Court be willing to hold that excluding vast swathes of low-risk family cases is arbitrary?
L: Perhaps. But the court’s logic on civil aid – that even criminal legal aid is only protected when ‘justice’ requires it (6§3), so civil legal aid must have a lower standard of protection – is seductive.23 Further, the court is likely, for political reasons, to be unwilling to deepen obligations presently.24 This is so particularly in light of the current rift over prisoners’ franchise.
S: And what is the third?
L: During the inevitable flood of test-cases, a national court may make a declaration of incompatibility under s4 of the Human Rights Act. This would be unprecedented in the field of legal aid. In Perotti v Collyer-Bristow 2003, the Court of Appeal set out its view. Reciting the ECtHR’s case-law, and noting national courts’ power to order aid in criminal, but not civil, cases, Chadwick LJ held ‘It is not for this court, or any other court, to direct the [Legal Services] Commission to exercise its discretion to provide funding.’
S: Did Chadwick say he would ever intervene?
L: Yes: where the national court ‘really cannot do justice in the case because it has no confidence in its ability to grasp the facts and principles of the matter.’ However, like Airey, this sets a very high bar, and applies only to the individual case. Rather than declaring the relevant law incompatible, the natural course would be a petition to the Director for exceptional funding under s10.
S: This is all very contingent. The courts have to be sympathetic, or daring; many poor litigants with complex cases have to have the time to fight through their cases; and, most incredible of all, the Director has to be miserly with exceptional cases – a surely unheard of characteristic amongst civil servants. If this happens often enough, the UK may indeed be in systematic breach of its obligations.
L: Yes, Socrates. In theory, there is no breach; in practice, there may be, but only if Fortune is kind. What is to be done?
S: Old friend – law has played its part, it seems, in limiting the scope and extent of the cuts. As I began by saying – let us now see if we can make a moral case against them.
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FOOTNOTES
7 http://www.publications.parliament.uk/pa/cm201011/cmselect/cmjust/681/681i.pdf, p30; Pellegrin v France
14 at 38. Farran, UK before the ECHR 1996, claims an article 8 point can create a right, citing 2991/66. But this case was settled without judgment.
16 http://www.justice.gov.uk/downloads/statistics/courts-and-sentencing/judicial-court-stats.pdf, p40
19 http://www.publications.parliament.uk/pa/jt201012/jtselect/jtrights/237/23704.htm at 1.27; LASPO s12(5-6); and MAK v UK at 45.
