YLAL South West minutes - 12.10.2017

Our latest event, Access to Justice Under Attack: Brexit, Charlie Gard and the Rule of Law was held on 12 October 2017 at Bristol Law Society. It took the form of a panel event and was chaired by Helen Law from Matrix Chambers, who did a fantastic job of tying together the key themes arising from the four talks, which all came at the issues from a different angle but demonstrated the inherent injustices in the current system.

Sian Pearce, Solicitor from Avon & Bristol Law Society, took us back to our roots with an introduction about Dicey and the Rule of Law, followed by a very interesting commentary on devolution and the government’s reluctance to relinquish control in certain areas such as social care, achieved through narrow definitions. She ended with a stark reminder that the British government is sovereign, by explaining how the Brexit Repeal Bill will effectively rewrite the devolution settlement overnight.

Mark Whitcombe, employment barrister from Oldsquare Chambers and junior Counsel in the landmark case of R (on the application of Unison) v Lord Chancellor [2017] UKSC 51, gave a first hand account of what is surely the most widely reported and constitutionally significant case of the year. Mark was instructed on behalf of the Equality and Human Rights Commission which intervened in respect of a judicial review by UNISON of employment tribunal fees that were acting as a barrier to tens of thousands of potentially meritous challenges each year.  He told of how, in framing the test as whether there was a “real risk” that the regime would prevent access to justice, the Supreme Court is potentially paving the way for challenges to similar unjust regimes in the future.

Next, we heard from our very own Lydia Andrews, family solicitor from WSP Solicitors who very kindly sponsored the event. Lydia recounted her own experience of two cases she was involved in, Re D [2015] EWFC 2 and GCC v A Mother & Ors [2017] EWFC B47, to demonstrate the harsh reality of the inequality of arms in cases where (often vulnerable) parents are facing losing their children to local authority care. In the two cases, the local authorities had a Care Order in place even though the children were living at home, and because of this, the local authorities were able to remove the children from their parents without making a further application to the Court. Tragically, there was no legal aid funding available to the parents because of a financial means test which denies funding to all but the poorest members of society, but fortunately for these parents, WSP Solicitors were prepared to take the cases on a Pro Bono Basis. The sad irony, that a father with significant disabilities had been denied funding to fight to keep his child because he had been determined to get a modestly paying job because he wanted to provide for his family, struck a chord with everyone in the room.

Emma Sutton, public law and Court of Protection barrister from No 5 Chambers, used the case of Charlie Gard to further illustrate the injustice caused when a financial means test denies parents the proper opportunity to fight to save their baby’s life. Sadly in this case, Charlie was beyond help, but who is to say that in another similar case, with parents who do not have the benefit of Pro Bono legal advice, a baby’s life that could have been saved wasn’t because the parents were not able to properly make their case due to lack of Legal Aid funding.

A thought provoking question and answer session followed, whereby the panel and audience discussed whether using language suggestive of making a value judgment on which types of cases “deserve” to be legally aided is unhelpful, and whether as lawyers and future lawyers we have a duty to refrain from acting Pro Bono and effectively “mopping up” some of these cases, in the interests of revealing the true extent of the issue.

We are grateful to our Chair and all of our speakers for their efforts inspiring a future generation of Young Legal Aid Lawyers to continue the fight for access to justice.