Civil legal aid: LASPOA 2012 s 10
Legal aid: it matters not that a case is ‘deserving’
Some of what follows may sound personal against Eddie Faulks. It probably is. On last Tuesday, 11 February 2014 a question arose on ‘Legal Aid’ asked by Lord Bach: ‘what assessment [had HMG] made of the extent to which LASPOA 2012 s 10, dealing with “exceptional cases”, is working as intended.’ Lord Faulks (orse Eddie F, or ‘fast’ Eddie to his friends at the bar, but now ‘the Minister of State, Ministry of Justice’) replied: ‘the Government consider that the exceptional funding scheme is working effectively’. Well, he would say that bit: he probably read it off a piece of paper written out by an official.
First struggling legal aid lawyers: he does not declare an interest. The likelihood is that he owes his professional position (a one-time QC) to earlier years as a barrister doing much of his work on legal aid (there’s a FOI question, for someone!); which makes the arrogance in what follows all the more damning.
Lord Bach (Lab) thanked Faulks for his answer ‘as far as it goes’; and then went on:
… Parliament and the public were told time after time to believe that s 10 would act as a safety net for those cases where it was manifestly unfair that the citizen should not have access to civil legal aid. However, the application forms are impossible for a non-lawyer to complete and a lawyer will not get paid a penny if the claim for legal aid is unsuccessful. Even worse is the fact that only in 3% of claims has legal aid ever been granted.
‘Exceptional case determinations’
Before hearing Faulks’s reply it is worth seeing what LASPOA 2012 s 10 actually says. In doing so, one must bear in mind that this is the tip of the statutory and delegated legislative (ie loads of regulations) iceberg; and that Faulks expects ordinary people to understand that lot, and a tranche of European Convention 1950 jurisprudence as well.
Under the heading ‘Exceptional circumstances’ the meat of s 10 is as follows:
(2) This subsection is satisfied where the Director—
(a) has made an exceptional case determination in relation to the individual and the services, and
(b) has determined that the individual qualifies for the services in accordance with this Part,…
(3) For the purposes of subsection (2), 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—
(i) the individual’s Convention rights (within the meaning of the Human Rights Act 1998), or
(ii) any rights of the individual to the provision of legal services that are enforceable EU rights, or
(b) 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.
Lord Faulks’s reply requires to be broken down. The first part is as follows:
The provisions contained in Section 10 of the LASPO Act make it perfectly clear that it is there for exceptional cases where, in the absence of legal aid, there would be a violation of Article 6 of the European Convention on Human Rights or possibly of the provisions of the European Union. It is not about whether a case may be deserving; it has to fall specifically within the confines of the section.
Leaving aside the nastiness of the second sentence (reminiscent of a distinction between the ‘right’s’ of the working classes, as against the rights of the middle and upper classes, say, in Victorian times), let us analyse s 10 and what Faulks says. Section 10(3) – mostly s 10(3)(a)(i) for practical purposes – defines what is meant by ‘exceptional cases’. Thus it is not that a case is exceptional in any objective sense. No, it is ‘exceptional’ under LASPOA 2012 for a quite different reason: because it comes within s 10(3). Any epithet could have been chosen: ‘special’, specific, ‘European Convention’, ‘section 10’. It happens the Government choose ‘exceptional’. This point seems to go over Faulks’s head; or has he not troubled to try to understand it?
The application form
Faulks went on:
As to the application form, it was consulted on regularly [with whom, one wonders?] and in detail before it became part of the process. I am surprised that solicitors are having difficulty in filling it in. It is possible for someone to fill in the form on their own and they can then have a preliminary view given to them by the Legal Aid Agency as to the prospects of success. It is true that the number of applications has been much lower than expected and it is also true that very few have been granted, but we are satisfied that the system is working in accordance with the section.
He descends to the depths here? I doubt he has ever worked in a solicitor’s office. He has no idea of the pressure on junior staff, whose firm will not be paid for their efforts, to fill in these forms. Still less can he imagine being a ‘someone [trying] to fill in the form on their own’ (namely a CIV ECF1). They could all go out and eat cake instead, perhaps, Lord Antoinette Faulks?
Page 3 of ECF1 requires ‘Generic Information’. This starts: ‘1 How important are the issues at stake for the client?’ OK that’s fine: I’m a woman who was raped following a forced marriage; and seven years later, backed by his family’s money, the father of the children is seeking contact. Are there enough people like me to make me not exceptional, perhaps? On page 4 I must explain how complex are the procedures, the area of law or the evidence in question; and I must explain the ‘legal complexity’: that’s a sinch, obviously. On pp 7 and 8 I must set out what ECHR rights apply: again, I like nothing better on a Saturday morning than to read human rights text books and to dip into BAILII Euro-jurisprudence on-line. I’m an ordinary person from Clapham, and I can deal with all that.
In giving that reply Faulks was arrogant, of that there can be no question. I fear his arrogance is not ‘exceptional’. And of the rest, either he is secretly too stupid to see the difficulties in the form; or the implication that he has read it – ‘I am surprised at solicitors’ – is based on an untruth (ie that he literally does not know what he is talking about: he has not read the form). It is secrets or lies Edward (as we called him at school: yes, an expensive public school, I confess): it must be one or the other.