Civil legal services:
duties of the Lord Chancellor
The duties of the Lord Chancellor to provide legal aid
‘civil legal services’ are set out in LASPO s 1(1) and (2):
- The Lord Chancellor must secure that legal aid is
made available in accordance with this Part.
- In this Part 'legal aid' means—
(a) civil legal services required to be made available
under section 9 or 10 or paragraph 3 of Schedule 3 (civil legal aid),…
Such general provision as subsists for civil legal aid is
provided for at s 9 (and in extensive schedules to LASPO), and at s 10 for
special legal aid (ie ECF determinations) where European Convention 1950 may be
breached, or thought to be at risk of being breached.
the Court of Appeal drew attention to the need for LAA case-workers fully to consider
European Court jurisprudence (and the court provided a summary of this at paras 
to ). The duties of a state (ie the Lord
Chancellor) to which the Court of Appeal drew attention in Gudanaviciene
the context of Art 6(1), are:
Duties in 2015 Guidance
- A consideration of ‘whether an unrepresented
litigant is able to present his case effectively and without obvious
unfairness’ (Gudanaviciene at ).
- There is no obligation under the
Convention to make legal aid available for all disputes in civil proceedings (Steel and Morris v UK(2005) 41 EHRR 22 at ; JG
at ). That said the Convention was ‘intended to guarantee not rights that
are theoretical or illusory but rights that are practical and effective’ (Airey v Ireland (1979) 2 EHHR 533 at ; Muscat
v Malta (2012) Application no. 24197/10 at 
quoted in JG).
- ‘The State must display diligence so as to secure to
those persons the genuine and effective enjoyment of the rights guaranteed
under Art 6’ (European Court in Muscat
- Consideration of these principles requires a
consideration of all the circumstances of the case, of the underlying law in
the case and of the relevant European Court jurisprudence (Gudanaviciene especially at ).
translates the Gudanaviciene
requirements (with the emboldened rubric above), to give two examples, as
' In considering whether it is necessary to make civil legal services available, caseworkers
should ask themselves whether a failure to do so would be a breach of
Convention rights or enforceable EU rights by reference to the principles
identified in this Guidance and in any relevant case law (emphasis supplied in
the text) [citation of Gudanaviciene
at  here].'
' … 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” [citation of Gudanaviciene
at ], 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.'
The threshold for consideration of grant (assuming an
applicant is financially eligible) is
‘that it is necessary to make [civil legal aid] available to’ the applicant,
because failure to do so would be a breach of his/her Convention rights; or the
case worker fears there might be such a breach (LASPO s 10(3)). Do the above
paragraphs of the Guidance
the s 10(3) necessity into a ‘diligent’ approach to grant of legal aid (see Steel & Morris
(above))? Is the new Guidance
by which case-workers assess ECF
applications compliant with HRA 1998?
Human Rights Act 1998
Human Rights Act 1998 s 6(1) provides that: ‘It is unlawful
for a public authority to act in a way which is incompatible with a Convention
European Convention 1950 Art 6(1), so far as relevant,
Right to a
(1) In the determination of his civil rights and
obligations…, everyone is entitled to a fair and public hearing within a
reasonable time by an independent and impartial tribunal established by law.
In Airey v Ireland
(1979) 2 EHHR 533 the European Court recognised that where the nature of the
proceedings demanded it, a denial of legal aid might, in itself, be a denial of
a fair trial contrary to Art 6(1) (Airey
and the following case law is considered in Gudanaviciene
at  to ). The complexity of law or procedure may not guarantee that a
fair trial will be denied, but it is a factor legal aid authorities must have
in mind, as explained by the European Court in Steel and Morris v UK
(2005) 41 EHRR 22:
' The question
whether the provision of legal aid is necessary for a fair hearing must be
determined on the basis of the particular facts and circumstances of each case
and will depend, inter alia, upon the importance of what is at stake for the
applicant in the proceedings, the complexity of the relevant law and procedure
and the applicant's capacity to represent him or herself effectively.'
However once a state
has determined that a person’s means justify legal aid, that their civil rights
are in issue and that their right to a trial risks real and obvious unfairness
by a lack of legal advice and representation then, said the European Court in Muscat v Malta
State must display diligence so as to secure to those persons the genuine and
effective enjoyment of the rights guaranteed under Art 6’ (at )).
Is there a point at
which the s 10(3) necessity threshold is achieved; and that from that threshold
point – just as a doctor confronted by an injured patient must seek to help him
or her – the LAA must switch to a supportive role? From then they must comply
with their duty to provide help for the litigant in question within statutory
limits. If this is so, how is this supportive role to be defined and to be
translated into practice? And finally does the Guidance
as now drafted achieve this?
Services to be provided: the s 10(3) necessity
A starting point for
grant of funding is at para 36 of the Guidance
under the heading ‘Extent of services to be provided’:
'Where caseworkers conclude that legal aid is
required to be provided under section 10, this should be limited to the minimum
services required to meet the obligation under ECHR or EU law. For example, it
could be through providing assistance in the form of specific levels of
service, or through limitations placed on funding certificates.'
Under the capability
of the applicant to present their case effectively paras 23 and 24 state:
'Caseworkers should consider whether the applicant
would be incapable of presenting their case without the assistance of a lawyer.
When considering this factor, caseworkers will need to bear in mind their
assessment of case complexity, as this may affect the weight that needs to be
given to some of the matters listed below.'
These two paragraphs (amongst a number) do not paint the LAA
as a supportive department over-imbued with ‘diligence…to secure’ that services
are provided. Para 36 does not present them in a forgiving light (bad losers,
perhaps?) once they have accepted that the necessity threshold has been
unfairness’: assessment factors
Whether the applicant ‘would
be incapable of presenting their case without’ legal assistance presents only a
partial view of Gudanaviciene
unlikely to represent the law. And yet it is surely the central feature of a s
10(3) assessment? It calls for a pro-active approach by case-workers (see Kerr
below), not the negative assessment
which the Guidance
would include a purposive to the following assessment factors:
- Given the facts of the case and the issues at
large what is the law which may reasonably be said to be involved in dealing
with the case?
- What is the procedure by which the case is to
be dealt with and are there any particular procedural issues which may arise
which an unrepresented litigant might be expected not to anticipate or to deal
- Can an unrepresented litigant be expected,
without obvious unfairness, to deal with these features of law and procedure,
and thereby secure a fair trial?
- If not what level of assistance should the
LAA provide to applicants (see Kerr
If the LAA can show they have assessed and fully considered
each of these assessment factors in an individual case and, thus, that the s
10(3) threshold has been reached, then the LAA’s role changes says the European
Court. The Agency ‘must display diligence so as to secure to those
persons the genuine and effective enjoyment of the rights guaranteed under Art
(above) at para ).
Level of service to
be expected by ECF applicants
Legal aid is intended to be a co-operative venture between
applicant, lawyer and the LAA – the ‘stakeholders’ as they used to be called.
The scheme under Legal Aid Act 1949 was part of the Beveridgeian welfare state
introduced by the 1945 Labour government. Legal aid is part of a citizen’s
right: alongside health, education and the variety of other services developed
In Kerr v Department for Social Development (Northern Ireland)
 UKHL 23,  1 WLR 1372 (a case concerning a
claim for benefits for burial of a dead claimant) Lady Hale said of the welfare
' What emerges from all this is a
co-operative process of investigation in which both the claimant and the
department play their part. The department is the one which knows what
questions it needs to ask and what information it needs to have in order to
determine whether the conditions of entitlement have been met. The claimant is
the one who generally speaking can and must supply that information. But where
the information is available to the department rather than the claimant, then
the department must take the necessary steps to enable it to be traced.'
There is no reason why the scheme for ECF grant should be
any different. Yet, on present drafting of the Guidance
, the ECF scheme seems still not HRA-compliant.
By contrast, if the Lord Chancellor’s
case-workers can show that the LAA has complied with the list of assessment
factors set out above, in a positive way and in each individual case, he can
probably show he has complied with his duties under LASPO ss 1 and 10 and HRA
1998, s 6(1). If he cannot show this – and the Guidance
is not compelling evidence of ‘diligence’ in securing
legal aid provision – then perhaps the Lord Chancellor’s operation of the legal
aid scheme is not Convention compliant.
The views expressed by contributing authors are not necessarily those of Family Law or Jordan Publishing and should not be considered as legal advice.