Lord Chancellor’s Guidance on exceptional case funding
In https://dbfamilylaw.wordpress.com/2015/06/10/lord-chancellors-guidance-on-exceptional-case-funding/ the Guidance issued by the Lord Chancellor after the case of R (ota Gudanaviciene & Ors) v The Director of Legal Aid Casework & Ors  EWCA Civ 1622 was reviewed. Reference was made at the end of that article to the prior question of whether or not the sparse amendments to the new Guidance (dated 9 June 2015) – for example with references to whether it is ‘necessary’ to grant funding (see eg paras 6 and 11) – are compatible with Human Rights Act 1998 (HRA 1998), especially s 6(1)? Is the approach of the new Guidance consistent with the duties of the Lord Chancellor under the European Convention 1950 as perceived by the recent Court of Appeal decisions in Gudanaviciene and the earlier JG v Lord Chancellor and ors  EWCA Civ 656?
The duties of the Lord Chancellor to provide legal aid ‘civil legal services’ are set out in LASPOA s 1(1) and (2):
(1) The Lord Chancellor must secure that legal aid is made available in accordance with this Part.
(2) In this Part “legal aid” means—
(a) civil legal services required to be made available under section 9 or 10 or paragraph 3 of Schedule 3 (civil legal aid),…
Such general provision as there remains for civil legal aid is provided for at s 9 (and in extensive schedules to the Act), and – at s 10 – for special legal aid (exceptional case determinations, the subject of this and the previous article) where European Convention 1950 may be breached, or thought to be at risk of being breached.
In Gudanaviciene the Court of Appeal drew attention to the need for case-workers (ie Legal Aid Agency (‘LAA’) decision-makers) on behalf of the Lord Chancellor to have regard to European Court jurisprudence. The duties of a state – the Lord Chancellor in the case of legal aid – to which the Court of Appeal drew attention in Gudanaviciene and JG, in the context of a fair trial (European Convention 1950 Art 6(1)), were:
- A consideration of ‘whether an unrepresented litigant is able to present his case effectively and without obvious unfairness’ (Gudanaviciene at ).
- There is no obligation under the Convention to make legal aid available for all disputes in civil proceedings (Steel and Morris v UK(2005) 41 EHRR 22 at ; JG at ). That said the Convention was ‘intended to guarantee not rights that are theoretical or illusory but rights that are practical and effective’ (Airey v Ireland (1979) 2 EHHR 533 at ; Muscat v Malta (2012) Application no. 24197/10 at  quoted in JG).
- ‘The State must display diligence so as to secure to those persons the genuine and effective enjoyment of the rights guaranteed under Art 6’ (European Court in Muscat at )).
- Consideration of these principles requires a consideration of all the circumstances of the case, of the underlying law in the case and of the relevant European Court jurisprudence (Gudanaviciene especially at ).
Duties in 2015 Guidance
The Guidance in passages which are new and incorporated into it after Gudanaviciene, translates the Gudanaviciene requirements into guidance for case-workers as follows:
 In considering whether it is necessary to make civil legal services available, caseworkers should ask themselves whether a failure to do so would be a breach of Convention rights or enforceable EU rights by reference to the principles identified in this Guidance and in any relevant case law (emphasis supplied in the text) [citation of Gudanaviciene at  here].
 [The italicised passage was in the original guidance at para 12, and is preserved in the new para 13] Article 6(1) guarantees the right to a fair hearing and the right of access to the court for the purposes of the determination of a person’s civil rights and obligations. [Deleted from the original para 12] In certain very limited circumstances, legal aid may be required in order to guarantee the effective right of access to a court in civil proceedings. [New para 13 continues:] In certain circumstances, legal aid may be required in order to guarantee the effective right of access to a court in civil proceedings, or to prevent obvious unfairness. The Court of Appeal has confirmed that Article 6(1) does not require that funding be granted in “most or even many cases” [citation of Gudanaviciene at ], but caseworkers should not approach the applications for ECF with any preconception about the proportion of applications that are likely to succeed. Whether the Convention requires funding in any given case depends on a holistic assessment in each case.
 …. the factors [in the Guidance] must be carefully weighed – for example, the greater the complexity of the procedural rules and/or the substantive legal issues, the more important what is at stake and the less able the applicant may be to cope with the stress, demands and complexity of the proceedings, the more likely it is that Article 6(1) will require the provision of legal services
The Guidance in an emboldened rubric between paras 19 and 20 adds:
The overarching question to consider is whether the withholding of legal aid would mean that the applicant is unable to present his case effectively and without obvious unfairness.
The threshold for consideration of grant (assuming an applicant is financially eligible) is ‘that it is necessary to make [civil legal aid] available to’ the applicant, because failure to do so would be a breach of his/her Convention rights; or the case worker fears there might be such a breach (LASPOA s 10(3)). Do these and other requirements of the Guidance translate this into a ‘diligent’ approach to grant of legal aid (see cases of Steel & Morris and Muscat (above) and Kerr (below))? In particular does the new Guidance by which case-workers are intended to assess applications, that it is ‘necessary’ to grant ECF legal aid, compliant with HRA 1998?
Human Rights Act 1998
Human Rights Act 1998 s 6(1) provides that: ‘It is unlawful for a public authority to act in a way which is incompatible with a Convention right.’
European Convention 1950 Art 6(1), so far as relevant, provides:
Right to a fair trial
(1) 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.
In Airey v Ireland (1979) 2 EHHR 533 the European Court recognised that where the nature of the proceedings demanded it, a denial of legal aid might, in itself, be a denial of a fair trial contrary to Art 6(1) (Airey and the following case law is considered in Gudanaviciene at  to ). Complexity of law or procedure does not guarantee that a fair trial will be denied to a party without legal aid. This was explained by the European Court in Steel and Morris v UK (2005) 41 EHRR 22:
 The question whether the provision of legal aid is necessary for a fair hearing must be determined on the basis of the particular facts and circumstances of each case and will depend, inter alia, upon the importance of what is at stake for the applicant in the proceedings, the complexity of the relevant law and procedure and the applicant’s capacity to represent him or herself effectively.
 The right of access to a court is not, however, absolute and may be subject to restrictions, provided that these pursue a legitimate aim and are proportionate. It may therefore be acceptable to impose conditions on the grant of legal aid based, inter alia, on the financial situation of the litigant or his or her prospects of success in the proceedings. Moreover, it is not incumbent on the State to seek through the use of public funds to ensure total equality of arms between the assisted person and the opposing party, as long as each side is afforded a reasonable opportunity to present his or her case under conditions that do not place him or her at a substantial disadvantage vis-à-vis the adversary.
However once a state has determined that a person’s means justify legal aid, that their civil rights are in issue and that their right to a trial risks real and obvious unfairness by a lack of legal advice and representation then, said the European Court in Muscat v Malta (above): ‘The State must display diligence so as to secure to those persons the genuine and effective enjoyment of the rights guaranteed under Art 6’ (at )).
Is there then a point at which the s 10(3) necessity threshold is achieved; and that from that threshold point – just as a doctor confronted by an injured patient must seek to help him or her – the LAA must switch to a supportive role? From then they must comply with their duty to provide support for the litigant in question within statutory limits. If this is so, how is this supportive role to be defined and to be translated into practice? And finally does the Guidance as now drafted achieve this?
Services to be provided: a s 10(3) threshold
A starting point for grant of funding is at para 36 of the Guidance under the heading ‘Extent of services to be provided’:
36 Where caseworkers conclude that legal aid is required to be provided under section 10, this should be limited to the minimum services required to meet the obligation under ECHR or EU law. For example, it could be through providing assistance in the form of specific levels of service, or through limitations placed on funding certificates.
Under the capability of the applicant to present their case effectively paras 23 and 24 state:
23 Caseworkers should consider whether the applicant would be incapable of presenting their case without the assistance of a lawyer. When considering this factor, caseworkers will need to bear in mind their assessment of case complexity, as this may affect the weight that needs to be given to some of the matters listed below.
24 In doing so, caseworkers should bear in mind that:
- there is no requirement to provide legal aid to ensure total equality of arms between an applicant and opponent, so long as each side is afforded a reasonable opportunity to present their case under conditions that do not place them at a substantial disadvantage compared to the opponent;
- most courts… are well used to assisting unrepresented parties in presenting or defending their cases against an opponent who has legal representation.
These three paragraphs do not paint the LAA in the light of a supportive department over-imbued with ‘diligence…to secure’ that services are provided. Para 36 does not present them in a forgiving light (bad losers, perhaps?) once they have accepted that funding should be provided.
Can a case be presented by an applicant ‘without obvious unfairness’?
In particular the assertion in para 23 that case-workers should ‘consider whether the applicant would be incapable of presenting their case without’ legal assistance presents only a partial picture and is unlikely to represent the law. This is surely the central feature of a s 10(3) assessment? It involves a positive approach, not negative assessment which much of the Guidance demands. This would include a purposive assessment of the following (often presented by the applicant in person):
- Given the facts of the case and the issues at large what is the law which may reasonably be said to be involved in dealing with the case?
- What is the procedure by which the case is to be dealt with and are there any particular procedural issues which may arise which an unrepresented litigant might be expected not to anticipate or to deal with?
- Can an unrepresented litigant be expected, without obvious unfairness, to deal with these features of law and procedure, and thereby secure a fair trial?
- If not what level of assistance should the LAA provide to applicants (see Kerr below)?
If the LAA can show they have assessed and fully considered each of these features of an individual case (with the attitude suggested for welfare benefits claimants by Lady Hale in Kerr) and the threshold has been reached, then the LAA’s role changes. The Agency ‘must display diligence so as to secure to those persons the genuine and effective enjoyment of the rights guaranteed under Art 6’ (European Court in Muscat at ).
Level of service to be expected by ECF applicants
It may not feel like it to applicants for legal aid and their lawyers; but legal aid is intended to be a co-operative venture between applicant, lawyer and the LAA – the ‘stakeholders’ as they used to be called. The scheme, introduced on 30 July 1949 under Legal Aid Act 1949, was part of the Beveridgeian welfare state introduced by the 1945 Labour government. It is part of a citizen’s right: alongside health, education and the variety of other services developed in 1945-50.
In Kerr v Department for Social Development (Northern Ireland)  UKHL 23,  1 WLR 1372 (a case concerning a claim for benefits for burial of a dead claimant) Lady Hale stated of the welfare benefits system:
 What emerges from all this is a co-operative process of investigation in which both the claimant and the department play their part. The department is the one which knows what questions it needs to ask and what information it needs to have in order to determine whether the conditions of entitlement have been met. The claimant is the one who generally speaking can and must supply that information. But where the information is available to the department rather than the claimant, then the department must take the necessary steps to enable it to be traced.
There is no reason why the scheme which leads to grant of legal aid funding, especially ECF, should be any different. At present even the application forms require a heavy level of legal input. This is not how Lady Hale expects a benefits scheme to operate. Of claims for benefit – and the same should be able to be said of legal aid – she said in Kerr:
 The benefits system is necessarily enormously complex. This was true even in the early days, when it was mainly based on flat rate contributory benefits, and means tested benefits were seen as a safety net but not the norm. It has become even more so with increasing attempts to target benefits upon the most needy…The general public cannot be expected to understand these complexities. Claimants should not be denied their entitlements simply because they do not understand them. It has been a consistent objective of social security administration over the years to devise user-friendly forms and procedures to enable the benefits agencies to discover whether or not a claimant is entitled to benefit.
These are surely the standards by which the Guidance for ECF should be judged? On present drafting of the Guidance, it seems likely that the present ECF scheme is not compliant with HRA 1998 s 6(1). By contrast, if the Lord Chancellor can show that the LAA has complied with the list of assessment factors set out above, in a positive way and in each individual case, he can probably show he has complied with his duties under LASPOA ss 1 and 10 and HRA 1998 s 6(1). If he cannot show this – and the Guidance is not evidence of ‘diligence’ in securing legal aid provision or of the type of approach described by Kerr – then perhaps the Lord Chancellor’s operation of the legal aid scheme in not Convention compliant.