Guidance after Gudanaviciene
On 9 June 2015 the Lord Chancellor published Exceptional Funding Guidance (Non-Inquests) (the Guidance) redrafted in the light of R (ota Gudanaviciene & Ors) v The Director of Legal Aid Casework & Ors  EWCA Civ 1622. The Court of Appeal found that aspects of the former guidance (undated) were ‘not compatible with article 6(1) of the Convention’. The Guidance, said the court, ‘impermissibly sends a clear signal to caseworkers and the Director that the refusal of legal aid will amount to a breach only in rare and extreme cases’ (), especially in the then paras 9, 10, 12 and 18. The threshold for compliance by a Legal Aid Agency (‘LAA’) caseworker with s 10(3) was set too high (for further discussions see http://www.familylaw.co.uk/news_and_comment/gudanaviciene-legal-aid-guidance-not-compatible-with-a-right-to-a-fair-trial#.VXg2kM-qqko).
This article will review the new Guidance, and – in a second part – will ask whether its approach to grant of funding is compliant with Human Rights Act 1998 (HRA 1998) s 6(1) (public bodies must not act in ways which are incompatible with Convention rights).
Exceptional case determination: LASPOA s 10(3)
Legal Aid Sentencing and Punishment of Offenders Act 2012 (LASPOA) s 10(3) provides for an ‘exceptional case determination’ (ECD) for exceptional case funding (ECF) as follows:
(a) that it is necessary to make [civil legal aid] 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.
Thus s 10(3) explains when an ECD should be made. It is ‘exceptional’, not because of some rarity of grant, but because of the factors – Convention compliance – which makes s 10(3) applicable. As the Court of Appeal bluntly assert: ‘Exceptionality is not a test’ (para ), it is merely a descriptor. And of s 10(3)(a) the court went on:
 … Section 10(3)(a) speaks of the situation where a failure to make civil legal services available would be a breach, not where there would be a real risk of a breach….
 In short, therefore, if the Director concludes that a denial of ECF would be a breach of an individual’s Convention or EU rights, he must make an exceptional funding determination. But as we shall see, the application of the ECtHR and CJEU case-law is not hard-edged. It requires an assessment of the likely shape of the proposed litigation and the individual’s ability to have effective access to justice in relation to it….
If the ‘Director’ – that is, the LAA case worker or decision-maker – cannot decide if there would be a breach of Convention or EU rights s/he goes on to consider the application under s 10(3)(b):
 …. In making [a decision under s 10(3)(b) the decision-maker] should have regard to any risk that failure to make a determination would be a breach. These words mean exactly what they say. The greater he assesses the risk to be, the more likely it is that he will consider it to be appropriate to make a determination. That is because, if the risk eventuates, there will be a breach….
The court’s conclusion on whether the Guidance properly guided case workers when it came to compatibility with Art 6(1) was to look at Strasbourg jurisprudence and to ask whether lack of representation created ‘obvious unfairness’ (). In a passage which should surely have found its way into the Guidance the court summarised the ‘obvious unfairness’ case-law (at ) as follows:
- The Convention guarantees rights that are practical and effective, not theoretical and illusory in relation to the right of access to the courts (Airey v Ireland (1979) 2 EHHR 533 at ; Steel and Morris (2005) 41 EHRR 22 at );
- The question is whether the applicant’s appearance before the court or tribunal in question without the assistance of a lawyer was effective, in the sense of whether he or she was able to present the case properly and satisfactorily (Airey (above) at ; McVicar v UK (2002) 35 EHRR 22 at ; and Steel and Morris (above) at );
- It is relevant whether the proceedings taken as a whole were fair (McVicar (above) at , P,C and S v UK (2002) at );
- The importance of the appearance of fairness is also relevant: simply because an applicant can struggle through ‘in the teeth of all the difficulties’ does not necessarily mean that the procedure was fair (P,C and S (above) at ); and
- Equality of arms must be guaranteed to the extent that each side is afforded a reasonable opportunity to present his or her case under conditions that do not place them at a substantial disadvantage vis-à-vis their opponent (Steel and Morris (2005) at ).
Case presentation by a party: ‘effectively and without obvious unfairness’
In the final analysis the ‘critical question’ said the court is ‘whether an unrepresented litigant is able to present his case effectively and without obvious unfairness’ (para ). Crucial factors include that the greater the procedural complexity or ‘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 (subject always to any reasonable merits and means test).
Art 6(1) does not require civil legal aid in most, or even many, cases said the judges. It all depends on the circumstances. Although in the UK we have an adversarial system of litigation, judges can and do provide assistance to litigants in person. The balance is perhaps expressed by the court as:
 … It is not a requirement of article 6(1) that legal services be provided in all but the most straightforward of cases. On the other hand [it is not the law] that legal services are required only in such extreme cases.
The Guidance and Gudanaviciene
The Guidance has been only peripherally rewritten since Gudanaviciene (mostly by adding a sentence here or there to reflect specific points made in Gudanaviciene). For example, a sentence which referred to the threshold for grant to avoid breach of Art 6(1) as being ‘very high’ (old para 10) has merely been removed in what becomes a new para 11. In the old guidance para 12 (criticised, as was para 10, in Gudanaviciene (see above)) stated that Art 6(1) guaranteed the right to a fair hearing, but that grant of ECF should only be made ‘in certain very limited circumstances’. The same passage in the new Guidance reads (now 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. 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” [Gudanaviciene at  (set out above)], 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.
(It is not clear that the Court of Appeal said what is in the italicised passage, but perhaps that point can pass for the time being.) The succeeding passages go on, as did the old guidance, to stress the importance of limiting grant by reference to whether a ‘civil right’ is in issue as Art 6(1) (paras 14-18): a slightly sterile discussion in the context of most civil proceedings, since application to a court (legal aid for tribunal proceedings will be very rare) generally brings a civil right into contention.
Breach of an Article 6 right
The Guidance centres its discussion, as before, on avoidance of possible breaches of Art 6; though it must not be forgotten that the Gudanaviciene case itself and Re JG (above) involved also Art 8 (right to respect for family life). The impugned para 18 is represented by a new rubric boxed into the text of the Guidance (between paras 19 and 20, and replacing the former rubric) as follows:
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.
In Gudanaviciene the position on grant of ECF to avoid obvious unfairness is intended to be reflected in the new para 20 which states (the former para 19 is italicised below):
The following factors should be taken into account. No one of these factors is necessarily determinative and each case needs to be assessed on its particular facts and in the light of representations made by applicants. However, the factors 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 [Gudanaviciene  is cited here].
What the Court of Appeal actually said is as follows:
 It can therefore be seen that the critical question is whether an unrepresented litigant is able to present his case effectively and without obvious unfairness. The answer to this question requires a consideration of all the circumstances of the case, including the factors which are identified at paras 19 to 25 of the Guidance [now paras 20 to 26]. These factors must be carefully weighed. Thus 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 (subject always to any reasonable merits and means test). The cases demonstrate that article 6(1) does not require civil legal aid in most or even many cases.
The reference to ‘all the circumstances’ and other references in Gudanaviciene to European Court jurisprudence (see eg  summarised above) is omitted here and in other parts of the Guidance.
‘Rights… that are practical and effective’
Of the Gudanaviciene principle – grant of legal aid to enable a trial to be achieved ‘without obvious unfairness’ – Black LJ said in Re JG (above):
 [ECtHR jurisprudence] in relation to legal aid has quite recently been summarised in Muscat v Malta (2012) Application no. 24197/10. There is no obligation under the Convention to make legal aid available for all disputes in civil proceedings. However the Court recalled that the Convention was “intended to guarantee not rights that are theoretical or illusory but rights that are practical and effective”, that the institution of proceedings did not, of itself, satisfy all the requirements of Article 6(1), and that the right of access to court included also the right to obtain a “determination” of the dispute by a court (§45).
She went on to quote from Muscat:
 … In discharging its obligation to provide parties to civil proceedings with legal aid, when it is provided by domestic law, the State must display diligence so as to secure to those persons the genuine and effective enjoyment of the rights guaranteed under Article 6 (italics added).
As can be seen from the italicised passage above the duty on the state is a positive one; not, for example, a test which depends on whether an applicant is unable to present a case (perhaps Gudanaviciene was a little harsh on prospective applicants in this sense).
In reality the amendments and additions to the text of the 9 June 2015 Guidance are few (65 paras replace the former 63). It still reflects the essentially restrictive approach to grant under s 10(3) which was applied before (see eg the 19/20 rubric above and paras 6, 21, 23, 24 and 36). Is it ‘necessary’ to grant funding (see paras 6 and 11). This may be what politics demands; but is it what HRA 1998 requires? Is the approach of the new Guidance consistent with the duties of the Lord Chancellor under HRA 1998 s 6(1) and as perceived by the recent Court of Appeal decisions in Re JG and Gudanaviciene? These questions must be considered in the next article.
 The full title necessary, to distinguish the two forms of civil legal aid: for inquests and for other civil proceedings