Thoughts on the
decision
(1) Complexity of legal aid legislation
The first point which is striking about this case is that
there is no judicial reflection on the extent to which the complexity of the
domestic violence legal aid scheme makes it unlawful. By definition it applies
to people who need to know – and
to
understand – whether they can obtain access to legal representation. They
must know if they are excluded from help. It applies to people who, through
circumstance (recent domestic violence) or educational background (most people
who are not administrative law lawyers) are not likely easily to understand
legal aid statutory provisions. Does the complexity which the case surely
exposes, make it unlawful?
In
R (ota Gudanaviciene & Ors) v The Director of Legal Aid Casework & Ors [2014] EWCA Civ 1622 the
Court of Appeal has recently reminded the Legal Aid Agency (in particular) that
procedure must make courts ‘effectively accessible’:
'[66] … InAirey
v Ireland [(1979) 2 EHHR 533],having decided that there was a breach of Art 6(1), the
ECtHR went on to hold that the applicant was denied an "effectively
accessible" legal procedure to enable her to petition for a judicial
separation and that this also constituted a breach of Art 8.'
Does the relative complexity of the statutory provisions
truly make courts accessible, for domestic violence victims, within
Airey terms; or is a breach of Art 8
implied here (breaches of Human Rights Act 1998, but not European Convention
1950, were refused permission by the court (para [5])?
(2) Could family lawyers have added
anything?
Did it make any difference that this case – essentially
about justice within the family law system – was argued out in the
Administrative Court
by administrative lawyers (there was evidence from one family lawyer). At least
one of the judges might have been drawn from the available pool of Family
Division judges in the Senior Courts (I have been told by Sir Nicholas Wall P
that this can be requested: was it requested here?). Could a couple of family
law advocates, or Law Society specialist family lawyers, have added anything?
(3) Court’s views substituted for those of
Parliament
For her assertion that the court must not ‘substitute its
views for those of Parliament’ – not questioned here – Lang J cited R
(Countryside Alliance & Ors) v Attorney General & Ors at para [45]
and Bank Mellat
v Her Majesty's Treasury (No 2) (Liberty intervening) [2013] UKSC 39 para [44].
In Countryside Alliance the issue before
the House of Lords was ‘whether the
prohibition of hunting wild mammals with dogs [etc] imposed by the Hunting Act
2004 is incompatible with the European Convention…’. In the passage cited, Lord Bingham had been considering
the Alliance’s appeal that ‘the prohibition of hunting is not
shown to reduce the overall level of suffering endured by foxes as compared
with the situation which pertained before the Act’ within the terms of
European Convention 1950 Arts 8 and 11. He said (of interference with these
Convention rights, as asserted by the appellants):
'[45] … the interference in
question is necessary in a democratic society, raising the familiar questions
whether there is a pressing social need for it and whether it is proportionate
to the legitimate aim pursued. There are of course many in England and Wales who do not consider that
there is a pressing (or any) social need for the ban imposed by the Act. But
after intense debate a majority of the country's democratically-elected
representatives decided otherwise. It is
of course true that the existence of duly enacted legislation does not conclude
the issue…. But the
present case seems to me pre-eminently one in which respect should be shown to
what the House of Commons decided. The democratic process is liable to be
subverted if, on a question of moral and political judgment, opponents of the
Act achieve through the courts what they could not achieve in Parliament.'
In the fox-hunting
ban case there was a free vote on the ban; whereas legal aid reform was driven
by party politics (ie not a free vote in sight). And, as Lord Bingham says
(italicised passage above) the fact of ‘duly enacted legislation’ does not
conclude the issue (as Lang J may be thought to suggest).
In Bank Mellat (No 2) Lord Sumption sets
out three examples of (at para [44]) of: ‘Where the courts have declined
to review the procedural fairness of statutory orders on the ground that they
have been subject to Parliamentary scrutiny’. He then points out that ‘Parliamentary
scrutiny excludes the duty of fairness in general’. Just because delegated
legislation has been considered by Parliament does not mean the courts are
excluded form considering its fairness, and the cited passage goes on to
explain this.
Did Lang J perhaps go too far in finding that, in law, the
court was being asked by the applicants, impermissibly, to substitute its own
views – whatever those might be – for those of Parliament?
(4) Merits of legal aid grant: not
considered by the court
Lang J dealt with the merits of grant of legal aid in one
line, by pointing out that the merits criteria for grant are ‘set out in’ Civil
Legal Aid (Merits Criteria) Regulations 2013 (para [23]); and then she moves
on. Maybe she was asked to do no more.
Grant of legal aid depends on the means of an applicant, the
type of proceedings and the merits of his/her case. Means was not in issue
here. Type of proceedings was very much in issue; but so too must have been the
merits of grant in an individual case. To a degree this takes us back to (1) in
this final part: ‘complexity’ of the scheme.
The definition of merits became far more complex (despite what Lang J
says) under after Access to Justice Act 1999 (with its ‘quasi-delegated’
legislation, as I once heard the Legal Services Commission representatives call
it) for defining various levels of merit (now reproduced in the Merits Criteria
Regulations). A simple Legal Aid Handbook
(a modest paper-back), became over-night a three-lever-arch file under the 1999
Act scheme.
The merits test and how it works is surely of relevance to
the case worker’s domestic violence decision-making process; to how Parliament
would view the scheme and its delegated legislation; and to an assessment of
its compliance with the policy under the 2012 Act scheme?
The views expressed by contributing authors are not necessarily those of Family Law or Jordan Publishing and should not be considered as legal advice.
