‘We will not deny or defer to any man either justice or right.’
The Magna Carta, 1215

‘… in the determination of his civil rights and obligations…everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.’
European Convention of Human Rights, Article 6(1)

With the advent of the welfare state, the Legal Aid and Advice Act 1949 created a funding scheme to facilitate access to our legal system; the original means test offered eligibility to 80% of the population, but over time legal aid has become the ill-favoured sibling of other branches of the welfare state and eligibility dropped to only 29% by 2007, writes Jennifer Blair.

• 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 Jennifer’s essay. We ran Niall Coghlan’s essay HERE.

In 2013 the vast cuts set out in the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) will cause an unmatched diminution to the public funding available for access to legal help, advice and representation.

In my view LASPO is broadly compliant with Article 6(1) of the European Convention, which affords a wide margin of appreciation to how states ensure access to the courts. However, I believe aspects of the changes are extremely problematic and there are likely to be specific cases which, on the right facts, will show that the provisions of LASPO provide inadequate protection for our obligations under the Convention.

Below I will explore the approach taken by the courts to legal aid in civil cases under Article 6(1), how this relates to LASPO and impact of the changes on other articles of the Convention.

No right to legal aid in civil cases
Article 6(3)(c) of the convention includes provision for legal aid for defendants in criminal proceedings; no equivalent provision is made in 6(1) and so there is no general ECHR right to legal aid in civil proceedings. However, the European Court of Human Rights (ECtHR) has been prepared to find that the absence of legal aid can cause a trial to be unfair on the facts of specific cases on the basis that the Convention is intended to guarantee not rights that are theoretical or illusory but rights that are practical and effective (Airey v Ireland Series A, No.32,(1979-80) 2EHRR305; para 24)

These factors were recently summarized in the European Court of Justice case Deb Deutsche Energiehandels und Beratungsgesellschaft MBH v Bundesrepublik Deutschland [2011]2CMLR21. Here the Court concluded that states have a wide margin of appreciation in how they ensure fair access to courts and so it is possible for a state to impose conditions on grants of legal aid and have a legitimate assessment process (such as the means/merits tests that has been employed in the UK), which should not undermine the essence of a Convention right, should pursue a legitimate aim, should be proportionate and must not be arbitrary.

When a court is examining the fairness of a case it will need to consider – among other things – the subject-matter of the litigation (e.g., does it include another convention right), prospects of success, importance of what is at stake for the party, complexity of the law and procedure and a party’s capacity to represent themselves effectively (e.g., perhaps due to level of education, the emotional impact of the case or challenges due to disability).

LASPO and Fair Trial
The principles identified above mean the UK is entitled to set qualifying criteria for access to legal aid (as through LASPO, section 9) and in general is even permitted to restrict legal aid from certain legal practice areas (LASPO, Schedule 1).However, even where a blanket ban for a type of case would generally be justifiable, in an exceptional case the ECtHR can require access to legal aid to be available to meet obligations under Article 6.1.

LASPO takes on board the emphasis on exceptional cases in ECHR case law in section 10 of the Act by giving the director the power to make an exceptional case determination to grant legal aid to prevent a breach of ECHR or enforceable EU treaty rights.

LASPO, schedule 1 part 2, outlines cases that will be excluded from legal aid, including nearly all tort cases. Generally in these areas it seems likely that either alternative routes to access the courts may be availablein the form of conditional fee agreements (looked at in part 2 of LASPO) and/or the government would seek to justify this restriction on the basis of the margin of appreciation, with separate provision made for ‘exceptional cases’ by section 10.

Legal aid to pay for representation is excluded under LASPO except for in the courts set out schedule 1 part 3, which are in the main only courts where it may be expected that clients will face complex procedure and law (e.g., primarily the High Court and above and in some circumstances the upper tribunal). While this may make it more difficult for clients who will have to represent themselves in the first instance and may lead to some harsh results, Article 6(1) does not provide for a total equality of arms, particularly in cases which revolve primarily round questions of fact, and so again, in general, this restriction seems unlikely to breach the ECHR (Pine v Law Society (2001)WL1171930).

Even so, it should be borne in mind that the ECtHR does not consider cases ‘in general’, but on the particular facts of individual cases and it is possible to foresee problematic cases excluded from legal aid where a client would not be able to effectively present their case. Many such cases will relate to significant civil rights and responsibilities, to property, livelihood or education, and are likely to be far from rare, for example:

• LASPO retains legal aid for alleged victims of abuse/domestic violence, but not for alleged perpetrators creating a serious risk of inappropriate cross examination of a victim, including a child victim, by a perpetrator, which could render a trial unfair due to the intimidation of a witness or unfair emotional pressure unlikely to produce best evidence.
• LASPO retains barely any legal aid for family cases and so there would be no support for the enforcement of a consent order even though such an order might have a major impact on legal and family rights.
• There will be no legal aid for personal injury cases, which can include extremely complex expert evidence, and it can be very difficult for defendants in such cases to obtain a CFA.
• There will usually be no funding for employment cases, even at the appeal stage, no matter how complex the case or severe the impact on the individual; this may have a chilling impact on employment discrimination cases.

On this basis, litigation around Article 6.1 is likely to focus on the efficacy of the s.10 provision for exceptional case determinations. This ‘power’ will need to be exercised sensitively, promptly (very promptly in urgent cases, such as housing cases experiencing severe nuisance) and proportionally. It must also be possible for individuals to actually access s.10 and without any legal aid for the application for an exceptional determination this final safeguard may fail many. It remains to be seen if the implementation of s.10 will be up to the challenge of providing a practical and effective safeguard of the ECHR.

An arbitrary system?
For a legal aid system to be accepted by the ECtHR its selection process must be procedurally fair.The Joint Committee on Human Rights has raised concerns that suggest the new system will not be sufficiently robust to claims of arbitrary interference with Article 6(1). The Committee has highlighted that the lack of independence of the ‘Director’ from the Lord Chancellor may lead to conflicts of interest in public law cases.

Of more concern, however, is the Committee’s unease regarding the lack of any right of appeal against a determination from the Director on whether a person qualifies for legal aid.While a challenge by way of judicial review would be available, this would be a review not appeal and it may be that the ECtHR would not see this as a sufficient safeguard to Convention rights.

LASPO and other human rights
Legal aid is a bulwark for fundamental rights; our courts are bound to uphold the ECHR and so it is through litigation that Convention rights find some degree of even horizontal protection. While LASPO makes provision for litigation explicitly against a public authority for breach of a Convention right,no similar provision is made for other civil litigation. When a trial includes examination of Convention rights, the margin of appreciation on access to the law can be much narrower, for example in relation to care proceedings or other pressing Article 8 issues.

People unable to put their case properly in earlier proceedings will be in the ridiculous position of having to wait until a Convention right has been breached to seek justice. If another forum (such as criminal law) is available to protect rights, there may not be a breach of obligations under the Convention,but in many situations no other remedy will be available or the most appropriate remedy will be civil. Arguably restricting the protection of cases that involve Convention rights breaches Article 13 ECHR – the right to an effective remedy – and Article 14, since economically disadvantaged clients would be discriminated against.

Below are some key examples of areas where LASPO does not offer sufficient initial protection for the UK’s obligations under the ECHR:

• The definition of domestic violence in LASPO is narrower than the Home Office definition which means many victims of domestic violence may be effectively barred from litigation, including for emergency injunctions. This is likely to breach positive obligations under Articles 2 (right to life) and 3 (prohibition against inhuman and degrading treatment).
• The removal of asylum support cases from the scope of legal aid may result in forced destitution amounting to inhuman and degrading treatment in breach of Article 3.
• No legal aid for strong welfare benefits claims relating to a person’s sole source of income could breach Article 3, particularly alongside Article 14 if a disabled person faced additional barriers.
• Relevant cases concerning foreign national prisoners, deportation and family reunion may not be safeguarded against unlawful interference with Article 8, when many migrants have strong ties to the UK, but may face additional barriers to legal access, such as language barriers.
• The high number of education/SEN cases where clients will fall above the income threshold for legal aid, but still not be able to afford legal advice could breach Article 8, particularly alongside Article 14 since so many cases involve disabled children.

Conclusion
In conclusion, LASPO shows an awareness of international human rights jurisprudence, but it lacks sufficient rigour and disregards the infinite complexity that can arise in practice. It is also important to bear in mind that the ECHR merely provides us with a bottom line of fundamental rights; we need not stop there. The UK has a robust legal system and that the protection of the rule of law provided for internationally is mirrored at the heart of the British Constitution. It is something we must fight to maintain at its highest. As A.V. Dicey wrote in 1885, the rule of law means that ‘everyone is equal before the law regardless of social, economic or political status’.