Welcome to our update of the latest legal aid and access to justice news from June and July 2018.
Housing Possession Court Duty (HPCD) scheme judicial review: On 23 June, the High Court handed down the judgment in Law Centres Network v The Lord Chancellor, a challenge to the new scheme which dictates how legal aid providers tender for a housing duty scheme contract. The full judgment can be found here.
The Law Centres Network was concerned about the negative impact that the larger scheme areas and price competitive tendering would have on their ability to continue to deliver their local duty scheme and other related services; and about the subsequent impact on people who depend on representation in the duty scheme and the additional support provided by Law Centres to keep their homes.
The Law Centres Network argued that by deciding to proceed with the tender on the basis of larger scheme areas and price competitive tendering, the Lord Chancellor had acted irrationally. This was because the justification he gave for increasing the scheme areas was that they would improve sustainability, but he had insufficient evidence to show that sustainability was a problem. It was further argued that that the Lord Chancellor has proceeded to implement the changes without sufficient investigation into or due regard for the impact of the changes on Law Centres and the clients that they represent, many of whom have protected characteristics under the Equality Act 2010.
The High Court found in favour of the Law Centres Network. In finding that the Lord Chancellor had acted irrationally and breached his Tameside duty of inquiry, Mrs Justice Andrews DBE observed that:
“Whilst the conclusions that small schemes were not financially viable and larger schemes were likely to be more economically viable for providers are ones that might be reached by a rational decision-maker, following a proper evidence-based inquiry, they are not so obvious that they can be assumed to be right without making any investigation of the financial impact of the proposed changes…
I am therefore driven to the conclusion that this decision was one that no reasonable decision-maker could reach on the state of the evidence that the LAA had gathered and in the absence of further inquiry.”
Julie Bishop, Director of the Law Centres Network said: “This Judicial Review arose from our deep concern about the impact of changes, proposed for no good reason, on people about to lose their home. With early legal advice almost entirely cut, duty desks are key to reaching people who could not find or access prior help.”
The Law Centres Network was represented by Public Law Project, whose press release can be found here.
Access to justice in the family courts: In an interview with the Guardian on his final day in office, Sir James Munby, the outgoing head of the family division, raised concerns about access to the family courts in England and Wales and said help for litigants who had to represent themselves due to cuts to legal aid was “woefully inadequate”. Of the justice system, he said “Anybody who thinks that we currently have a network of courts which enables proper access to justice is deluding themselves.”
He also explained the impact of legal aid cuts on the number litigants in person appearing before the Courts, he said “The consequence is very large numbers of people come to court without representation. Our present court processes, our rules, our forms, our guidance, is woefully inadequate to enable litigants in person – even educated, highly articulate intelligent litigants in person – to understand the system. That’s a shocking reproach to us. That’s a current reality.” He also suggested ways in which the court system could assist litigants in person in the future, for example, by using Skype or mobile courts.
Commons Justice Select Committee’s report on criminal legal aid: On 26 July 2018, the Justice Select Committee published a report on the changes to criminal legal aid introduced by the Litigators’ Graduated Fee Scheme (LGFS) and the Advocates’ Graduated Fee Scheme (AGFS), expenditure on criminal legal aid generally and declining expenditure on the criminal justice system as a whole. As regards the criminal justice system as a whole, the report found that “the under-funding of the criminal justice system in England and Wales threatens its effectiveness, so undermining the rule of law and tarnishing the reputation of our justice system as a whole, which is widely admired.”
In respect of legal aid, the report found that the fragility of the Criminal Bar and criminal defence solicitors’ firms is putting the right to legal representation under Article 6 ECHR at risk, and that this risk can no longer be ignored. The Committee recommend that the output from the criminal legal aid workstream within the post-implementation review of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) be used to underpin a review of criminal legal aid.
The Committee also expressed their regret that the Law Society has had to resort to judicial review proceedings to challenge the LGFS and the action by the Criminal Bar in respect of the AGFS.
Conservative Home article on legal aid: On 9 June, Alex Chalk MP spoke to the Conservative Home about cuts to legal aid. On the issue of access of justice, he warned, “if ‘fair play’ is to mean anything, then it is vital that legal redress is available to all – regardless of income or background. That’s not some esoteric, highfalutin’ ideal. If we don’t want people taking the law into their own hands and settling their disputes in the streets, people must feel able to access the justice which sustains our global reputation abroad. If they don’t, that reputation will start to fray. That’s because if British citizens cannot assert their rights, those rights become nothing but empty words. They have no power.”
He goes on to suggest 2 proportionate and cost effective measures that would improve access to justice: (1) to restore legal aid for early legal advice, and, (2) to update the strict financial eligibility requirement for civil legal aid.