This is the submission of the Campaign to the Joint Parliamentary Committee on Human Rights’ Inquiry into Defending Human Rights.
We recommend that the following steps are taken for the reasons set out in this briefing paper:
- The legal aid regulations relating to the payment for work done on judicial review claims pre-permission should be withdrawn and legal aid should be reinstated for judicial review subject to the usual merits criteria and eligibility provisions;
- Trespassers are brought back within the definition of ‘loss of home’ for the purposes of legal aid;
- As proposed by the Low Commission, Housing Law should be brought back within scope for legal aid;
- As the Low Commission also recommended, there should be an urgent radical overhaul of the provision of Exceptional Funding.
The issues mentioned below affect the human rights of Gypsies and Travellers especially due to the lack of authorised sites and problems on rented sites ( article 8) and the need for a fair hearing ( article 6).
During the consultation process on proposals to amend the situation with regard to legal aid and judicial review, the vast majority of respondents indicated that most judicial review applications were settled successfully prior to the permission application being determined. . Despite this, the Government has now brought into force provisions which mean that legal aid providers will not be paid on a judicial review application unless permission is granted, the court orders an oral hearing or, if the matter is settled prior to permission without costs being awarded to the claimant, at the discretion of the Legal Aid Agency. These changes will have a chilling effect as legal aid providers simply do not have the financial resources to take on work ‘at risk’ and, as indicated by the difficulties of obtaining Exceptional Funding (discussed below), the potential for the Legal Aid Agency to exercise its discretion in the provider’s favour offers little comfort.
Judicial review, obviously, provides a means by which people can hold public authorities to account with regard to unlawful actions and decisions. It leads to an improvement in public authority decision making processes. The changes to judicial review funding may mean that many providers will no longer take judicial review cases. The possibly disastrous effect on the rule of law of these reforms is obvious. Gypsies and Travellers are some of the most vulnerable members of our society and an inability to challenge an unlawful decision by a public body may put them at a particular disadvantage.
Loss of Home
‘Loss of home’ remains within scope for legal aid but ‘trespassers’ are excluded from the definition of ‘loss of home’. This means that Gypsies and Travellers on an unauthorised encampment facing county court eviction action by a local or other public authority where that authority are acting unlawfully (e.g. by flouting government guidance on welfare assessments) will be unable to get legal aid to defend that action in the county court.
The Low Commission on the Future of Advice and Legal Support was established to develop a strategy for access to advice and support on Social Welfare Law in England and Wales. The Low Commission was chaired by Lord Colin Low and was made up of eight other Commissioners with expertise in this area. The Low Commission was independent of Government, political parties and advice providers.
The Low Commission called for the return of legal aid in Housing Law cases (see Low Commission Tackling the Advice Deficit, January 2014). Importantly this would include cases under the Mobile Homes Act 1983.
Mobile Homes Act 1983
In 2011, six years after the European Court of Human Rights judgment in the case of Connors v UK (2005), the Government finally amended the law to give proper security of tenure to those Gypsies and Travellers living on local authority run caravan sites by amending the Mobile Homes Act (MHA) 1983 so that it covered those sites. However, that positive step was undermined when the Legal Aid, Sentencing and Punishment of Offenders Act (LASPOA) 2012 came into force. It stipulated that only possession actions and serious disrepair cases under MHA 1983 remain within scope for legal aid. It follows that many Gypsies and Travellers living on local authority sites will now find themselves unable to enforce the important rights they have been given under the MHA 1983 because most MHA 1983 disputes are now out of scope for legal aid.
During the passage of the LASPO Bill through Parliament, the Government placed great emphasis on Section 10 of the Bill, and the possibility of exceptional cases funding (ECF) being granted when circumstances required. The Government stated that ECF would act as a vital safety net and indicated that it was intended to ensure that the failure to provide advice and representation to someone does not result in a breach of Article 6 of the European Convention on Human Rights (the right to a fair hearing) and does not breach European Union Law.
The Court of Appeal found the Lord Chancellor’s Guidance on Exceptional Funding to be unlawful in the case of R (Gudanaviciene & ors) v The Director of Legal Aid Casework and The Lord Chancellor  EWCA Civ 1622, 15 December 2014.
The Government thereafter made amendments to the Guidance.
In The Director of Legal Aid Casework and the Lord Chancellor – v – IS  EWCA Civ 464, Court of Appeal, 20 May 2016, the Court of Appeal overturned, by two lord justices to one, the judgment of Collins J that, despite the amendments, the system was still systemically unfair and unlawful.
In his dissenting judgment, Briggs LJ would have upheld Collins J’s Judgment. He stated:
- It is in my view the combination of those two features, namely an application process which is in accessible to most LIPs [ litigants in person] and the absence of an economic business model sufficient to encourage lawyers to apply on their behalf, which makes the ECF scheme inherently defective and therefore unfair…..
- It is notorious that, despite their laudable and valiant endeavours, those lawyers who offer to work pro bono for deserving clients are insufficient to meet anything approaching the demand for their services, so that there must be (however difficult to quantify) a substantial class of deserving applicants who can neither obtain ECF on their own, nor obtain the legal assistance necessary for them to do so.
ECF ought to be available to cover matters involving: housing benefit; Gypsy and Traveller planning inquiries; disrepair issues on Gypsy and Traveller sites which need to go to tribunal; other claims under the MHA 1983. Many, many hours of solicitors’ and advisers’ time has been spent in attempting to get ECF. Increasingly solicitors and advisers are understandably unwilling to even try for ECF. It is absolutely clear to us that, in these cases, Article 6 is breached because clients are not able to deal with the relevant hearings and, thus, there is no equality of arms (the case of Airey v Ireland refers).
The reduction in scope of legal aid has led to situations where Gypsies and Travellers are being evicted unlawfully and are otherwise being denied access to justice. We believe that the predictions that this will lead to increased costs in the end are already being proved correct. At the same time, the purported safety net of ECF has proved to be illusory but, in the process, has led to barristers, solicitors and advisers wasting vast amounts of time in fruitless attempts to obtain ECF. This, in turn, is now leading to a situation where legal aid providers are no longer willing to even attempt to obtain ECF. We believe that the Government may well be very happy with this result and we also believe that ECF was never really intended to provide a proper safety net.
We fully support the Low Commission’s call for the return of legal aid in Housing Law cases. The Low Commission has also recommended that there be a radical overhaul of the provision of EF. That overhaul should take place without delay. We also support the recommendations contained in the report of the Bach Commission Access to Justice.
No Mad Laws Campaign – January 2018