Legal aid news – May 2016

Exceptional Case Funding: on 20 May, the Court of Appeal overturned the judgment by the Administrative Court that the Exceptional Case Funding (ECF) scheme for civil legal aid is unlawful. The case was brought by Public Law Project on behalf of IS, a protected party by his litigation friend the Official Solicitor. Last year, the Administrative Court held that the ECF scheme is unlawful as it gives rise to an unacceptable risk that people will not be able to obtain legal aid where required by the European Convention on Human Rights or under EU law. The court also declared that aspects of the Civil Legal Aid (Merits Criteria) Regulations 2013 and the Exceptional Case Funding Guidance (Non-Inquest) were unlawful in certain respects.

However, the judgment of the Administrative Court was overturned by Lord Justices Laws, Briggs and Burnett in the Court of Appeal, with the majority (Laws LJ and Burnett LJ) holding that while there have plainly been difficulties, “the state of the evidence does not justify an across-the-board conclusion that the scheme is of itself so unfair as to lie outside the range of lawful choices open to the Lord Chancellor and the LAA” in the administration of exceptional funding under section 10 of LASPO. The court unanimously held that the Merits Regulations and the Exceptional Case Funding Guidance were lawful.

Lord Justice Briggs agreed with the other two judges in relation to the Regulations and Guidance, but found that “the defects in the procedures for applying for ECF at the time of the hearing [in the Administrative Court] were systematic and inherent, to the extent that rendered the scheme inherently unfair”. Briggs LJ would therefore have dismissed the appeal by the government under this ground.

The Court of Appeal judgment is available here and was reported by the Law Society Gazette here. We are waiting to hear whether the case will be appealed to the Supreme Court.

Legal aid for inquests: the mother of five year old Alexia Walenkaki, who died while playing in an East London park, was denied legal aid for representation at her daughter’s inquest, as reported by the BBC here. The parents of Zane Gbangbola, a seven year old boy whose death may have been caused by hydrogen cyanide poisoning, were also refused legal aid for representation at the inquest into their son’s death, as reported by the Guardian, the Daily Mail and others.

Proof Magazine: Justice Alliance has teamed up with The Justice Gap to crowdfund for a one-off publication to tell the definitive story of legal aid. The magazine, titled ‘Justice in a Time of Austerity’, will be aimed at the public and launched at a series of events across the country. If you would like to contribute towards the funding of the magazine, visit CrowdJustice.

Labour legal aid review: YLAL submitted its response to the Bach Commission, set up by the Labour Party to review its legal aid policy. We set out the three most important practical steps, in our view, which could be taken to ensure that access to justice for all is a reality:

· Repeal LASPO, bring the areas of law which were removed from scope back into scope and return to a presumption that a case which satisfies the means and merits criteria is within the scope of legal aid except in limited categories which are specifically excluded;

· Increase the thresholds and simplify the financial means tests for civil and criminal legal aid to ensure that legal aid is not reserved for only the poorest and most vulnerable in society, but rather is available to anyone who is unable to afford to pay for legal advice and representation; and

· Conduct an independent and comprehensive review of the impact of court and tribunal fees on access to the courts and recognise that the cost of justice should be primarily borne by society as a whole, rather than by people using the courts to defend or protect their rights.

We would like to thank the many members who volunteered to help prepare our submission to the Bach Commission. We will keep in contact with the Commission, which includes YLAL founder Laura Janes, and update members on all future developments with the Labour legal aid review.

Awards: Former YLAL co-chair Katie Brown won the Rising Star award at the inaugural Solicitors Journal Awards this month. Congratulations Katie! After accepting the award, Katie paid tribute to YLAL: “The group has been going for over ten years and continues to grow from strength to strength campaigning tirelessly on access to justice issues and social mobility in the legal aid profession. Social mobility in particular is such an important issue as young people trying to qualify face enormous hurdles including student debt, unpaid or low income work experience placements, and fewer legal aid firms offering training contracts.”

Katie continued: “If we want to continue to provide a good publicly-funded legal advice system then it’s important young people are encouraged to pursue a career in those areas of law traditionally funded by legal aid to ensure there’s a next generation of legal aid lawyers able to provide that crucial advice and representation.” The award for Legal Aid Team of the Year went to Bindmans for its work litigating to save legal aid in cases concerning inquest funding, the ‘two tier’ criminal legal aid contracts and the residence test. You can read about all of the winners here.

In further awards news, the Legal Aid Lawyer of the Year Awards 2016 (LALYs) will take place on 7 July 2016 – you can buy tickets at a special discounted rate of £15 for YLAL members here. The LALYs shortlist was announced this month and features new Liberty director Martha Spurrier as a finalist in the Legal Aid Barrister category.

Other news: YLAL committee member Emmeli Sundqvist wrote for Solicitors Journal about recent developments in legal aid and the fight to reinstate a minimum salary for trainee solicitors. It was reported that the justice system is failing witnesses and victims of crime, according to the Public Accounts Committee, which found that courts and prisons are “bedevilled by long standing poor performance including delays and inefficiencies, and costs are being shunted from one part of the system to another”. Meg Hillier MP, chair of the committee, said the criminal justice system is “overstretched and disjointed. Victims of crime are entitled to justice yet they are at the mercy of a postcod
e lottery for access to that justice”.
The full report is available here.