Today (3 March 2015) the Divisional Court gave judgment in Ben Hoare Bell Solicitors & Ors, R (On the Application Of) v The Lord Chancellor  EWHC 523 (Admin). Four firms of solicitors who provide legal services in public law areas and a charity providing advice, support and services to homeless and badly housed people in England challenged the regulations which introduced the requirement that if an applicant for permission to bring judicial review failed to gain it, the legal representative would not be paid for the work done in relation to that permission application. This was brought in from 22 April 2014 as a result of the Civil Legal Aid (Remuneration) (Amendment)(No 3) Regulations 2014 SI 2014 No 607. Under these if permission is refused the lawyer does not get paid, similarly there is no entitlement to payment where permission has neither been granted nor refused, for example where the claim has been settled or withdrawn although the Lord Chancellor may decide to pay the costs of making the application where he considers that it is reasonable to do so. Services in investigating the prospects of a claim are excluded and are remunerated.
The claimants argued that there was no power to make entitlement to payment for the provision of properly assessed qualifying legal services dependent on the outcome of a case because LASPO does not contemplate that where substantial legal services under the scheme established by it are properly provided they will be provided without payment.
They complained of the "chilling effect" on access to the High Court in the sense that providers who risk not being paid will apply criteria that are stricter than those in LASPO and the regulations made under it. Meritorious but complicated cases would be prevented in inception, and, they argued, the Lord Chancellor will be in breach the duty to secure that legal aid services are made available to persons who qualify.
The Lord Chancellor argued that the legislation allowed the risk of the costs of making an application where permission is not granted to be put on the providers. It would have the effect of incentivising them to focus more on the proper application of the criteria which determine whether a case qualifies for legal aid under the relevant regulations.
The LC argued that the natural meaning of section 2(3) (remuneration) of LASPO permitted regulations setting out the circumstances in which payment will not be made as well as those in which it will, and the rate of payment.
The Lord Chancellor denied that the evidence demonstrates that there would be a chilling effect or that the scheme is inherently unfair. It was said that this allegation was premature because there has been no proper opportunity in the approximately nine months since the amendment has been in force to see how the system will work in practice.
The Divisional Court rejected the Claimant’s challenge that the making of the regulations was beyond the powers of the Lord Chancellor in a strict sense. However it invoked the principle that the regulation went beyond the purpose of the powers conferred by the Act in making those regulations (and thus went beyond the Lord Chancellor’s powers).
The regulations were unlawful therefore because they put legal service providers "at risk" in situations which could not be said to be linked to the stated purpose of the regulation making power in LASPO. The Divisional Court said (see @  – ) that the Regulation was, in other words inconsistent, with the statutory purpose (see Padfield v Minister of Agriculture, Fisheries and Food  AC 997). If it had been necessary to reach a conclusion on whether there had been a chilling effect the court would have concluded that the high threshold required had not been met.
The judgment is the most recent in a series of cases in which the mechanisms adopted by the Lord Chancellor to cut the public funds being spent on legal assistance have been successfully challenged.
The mechanisms and their challenges can be summarised:
(i) statutory instruments going beyond the primary legislation’s purpose (Horne, above, and PLP, below);
(ii) skewing civil service guidance so that the discretionary decisions to be taken under the guidance are given a clear and restrictive steer (Gudanaviciene);
The softer the law used the more difficult it can feel to challenge a public body’s decision making. However it is plain from the recent cases that classic principles of administrative law serve to hold the Lord Chancellor to account. The difficulty is that such holding of the state to account is extremely risky and complex. The favoured mechanism of governments in recent years has been to try to effect change by non-legislative means and in particular means which seek to affected the way in which a decision maker reaches a decision on a discretionary matter. Such decisions are classically difficult to challenge. However where the government seeks to dictate the factors which the decision maker is to take into account in making the decision or the standard to which something must be proven, it is possible to challenge the way in which non-statutory guidance has been formulated, in particular where it rests on a misunderstanding of the law.
In R (Gudanaviciene and Ors v DLAC and Lord Chancellor) appeals concerning decisions by the Director of Legal Aid Casework to refuse applications for civil legal aid made under the Legal Aid, Sentencing and Punishment of Offenders Act 2012 ("LASPO") were challenged in the Court of Appeal. The Lord Chancellor's Exceptional Funding Guidance (Non-Inquests) was also considered. Refusals of exceptional case funding under section 10 of LASPO were all challenged. That guidance was found to be incompatible with article 6(1) of the European Convention on Human Rights and article 47 of the European Charter. It impermissibly sent a clear signal to caseworkers and the Director that the refusal of legal aid will amount to a breach only in rare and extreme cases. Aside from the use of the Charter article 47, what is interesting about the case is that the device chosen by the Lord Chancellor to prevent claims for exceptional case funding was (a) discretionary and (b) to do with the standard to which an applicant for such funding had to prove their prospects of success. The standard was impermissibly set as being that ECF is required under section 10(3)(a) of LASPO only when the applicant can establish "to a high degree of probability" that without it there would be a breach of his procedural rights under the Convention or EU law. It was also impermissible to interpret the "risk" of a breach referred to in section 10(3)(b) LASPO is a "substantial risk that there will be a breach of the procedural requirements of" the Convention or EU law.
The Court accepted the following analysis of the state’s obligations under Article 6:
(i) the Convention guarantees rights that are practical and effective, not theoretical and illusory in relation to the right of access to the courts;
(ii) the question is whether the applicant's appearance before the court or tribunal in question without the assistance of a lawyer was effective, in the sense of whether he or she was able to present the case properly and satisfactorily;
(iii) it is relevant whether the proceedings taken as a whole were fair;
(iv) the importance of the appearance of fairness is also relevant: simply because an applicant can struggle through "in the teeth of all the difficulties" does not necessarily mean that the procedure was fair;
(v) equality of arms must be guaranteed to the extent that each side is afforded a reasonable opportunity to present his or her case under conditions that do not place them at a substantial disadvantage vis-à-vis their opponent.
The Lord Chancellor’s guidelines gave a very clear steer to case workers that something more extreme than this was required.
The Court concluded that the critical question is whether an unrepresented litigant is able to present his case effectively and without obvious unfairness. The answer to this question requires a consideration of all the circumstances of the case: the greater the complexity of the procedural rules and/or the substantive legal issues, the more important what is at stake and the less able the applicant may be to cope with the stress, demands and complexity of the proceedings, the more likely it is that article 6(1) will require the provision of legal services (subject always to any reasonable merits and means test).
In R (Letts) v Lord Chancellor the Legal Aid Agency ("LAA") was challenged over its decisions concerning whether relatives of a deceased should be granted legal aid for representation at an inquest into a death which has arisen in circumstances which might engage Article 2 of the European Convention of Human Rights ("ECHR") as brought into effect in the United Kingdom by virtue of the Human Rights Act 1998.
It was noted that the duty to hold an inquest in the Coroners and Justice Act 2009 overlapped but is not coextensive with the state’s obligations under Article 2 ECHR (“Everyone’s right to life shall be protected by law”) (see R(Smith) v Oxfordshire Assistant Deputy Coroner  UKSC 29 at paragraph ).
The state’s obligations include (i) a duty to set up systems of laws which are designed to protect life (the "systemic duty") and (ii) a duty in individual cases not to be complicit in the taking of life (the "operational duty"). There is also the duty to investigate a death which arises, or which might arise, as a consequence of the first two rights. For an effective investigation various conditions must be met (e.g. relating to timing of the investigation after death, the independence of the investigator vis a vis the state and, the right of the next-of-kin to be involved in the investigative process. In certain cases they may need legal representation at the inquest, so the state may need to grant legal aid.
The ECF guidance offensively sought to define the ambit of an Article 2 case and it does this by directing the LAA to investigate whether there has been an arguable breach by the state of the obligation in Article 2.
The Claimants argued that any caseworker following the Guidance would impose too high a hurdle upon an applicant for legal aid and so would be inclined to refuse legal aid where otherwise it would, and should, be granted. They submitted
(i) that there are categories of Article 2 case where for the investigative duty to arise there needs first to be an arguable breach by the state of the substantive obligations; but
(ii), that there is also a significant category of cases where if the basic facts of the case fit within a category of case to which Article 2 can in principle apply the investigative duty arises automatically and without there being a need to establish even a hint of culpability on the part of the state.
By failing to even identify this category of case the Guidance did not reflect the law and wrongly treated all Article 2 cases as requiring evidence of arguable breach by the state.
The Court has jurisdiction to grant relief to cure errors of law made in departmental advice and guidance (see Gillick v West Norfolk and Wisbech Area Health Authority  UKHL 7). Guidance which is "not clear and unambiguous" (ibid para ) or which was "materially unclear or misleading" can be regarded as “seriously misleading” (R(A) v Secretary of State for Health  EWCA Civ 225 and Letts @ paragraph 119).
The suicide of a voluntary psychiatric patient is capable of triggering the procedural, investigative, duty under Article 2 ECHR depending on the facts. The duty arises irrespective of whether the state, whether arguably or otherwise, is in breach of the substantive duties in Article 2 ECHR. The outer limits of this principle are hard to define and relevant factors focus on the circumstances when a mental health patient can be said to be, or remain, under the control or care of the State.
The Guidance indicated that there only one trigger for Article 2, namely evidence of arguable breach by the State but case law identifies a variety of circumstances and types of case of real public importance and significance where the duty arises independently of the existence of evidence of arguable breach. The Guidance was therefore erroneous for this reason.
It was also erroneous in insisting on the “arguable breach by the state” factor, but cases such as those involving deaths in custody include those where the law makes clear that the duty can arise automatically. Even at a broad level the Guidance failed to acknowledge the existence of cases where the test is other than arguability.
The policy point of both these cases is that the Lord Chancellor has tried to do by soft law (policy and guidance) what cannot be done by hard law such as regulations which come under more extensive scrutiny. If a government seeks to make law without troubling parliament, inevitably it will find itself called to account by the Courts instead.
A case which involves the government trying to use secondary legislation improperly is The Public Law Project, R (On the Application Of) v The Secretary of State for Justice the Office of the Children's Commissioner  EWHC 2365 (Admin). The Lord Chancellor proposed by statutory instrument (the LASPO Act 2012 (Amendment of Schedule 1) Order 2014) to introduce a residence test. All those who fail that test wold be removed from the right to ask for legal assistance. The effect of such an amendment would be to exclude those who have a better than fifty-fifty chance of establishing a claim, the subject-matter of which is judged as having the highest priority need for legal assistance, but without the means to pay for it, on the grounds that they lack a sufficiently close connection with the country to whose laws they are subject. PLP challenged that decision on the basis that it was in breach of Article 6 ECHR read with Article 14 which prohibits discrimination in the field of the rights protected by the Convention.
For any public law decision maker, or those framing the policy to be followed by decision makers, the temptation must be to try to frame decisions in discretionary terms as these will tend to be more robust under judicial review scrutiny. However as public authorities try to steer such discretionary decision making it is likely that the lawfulness of the underlying policy used by the policy framers will be challenged successfully. The Lord Chancellor’s foot should no more be a measure of policy fairness than it was of equitable consistency.
NB: The foot is a judicial concept which indicates randomness and unfairness. John Seldon in the 17th Century remarked that outcomes in Equity cases might depend on the size of the chancellor’s foot. However in modern times a Lord Chancellor is much more likely to have difficulty in extricating the foot from the Ministerial mouth.