In a famous advert from the 80s, Maureen Lipman picked up the phone to caution her distraught grandson that he could never be a failure if he had an “ology”. It was perhaps in memory of that fine advice that the Lord Chancellor appeared before the House of Commons Justice Select Committee on Wednesday morning. For the first time, the language of ideology was openly placed at the heart of the Government’s approach to the reform of legal aid.
Most of the legal profession is familiar with the controversy of the Government’s latest raft of suggestions for reform of legal aid, in the Transforming Legal Aid consultation paper. JUSTICE and many others have raised substantial concerns about the Government’s approach. The changes proposed to the provision of criminal legal aid will drastically limit the ability of people accused of crimes by the State to access quality legal advice that they can trust. This will increase the likelihood of miscarriages of justice and may make the criminal justice system as a whole more expensive, and less fair, as more people attempt to represent themselves.
Tan & Anor v Law & Anor (2013) – Currently available on Lawtel 25/6/2013 and Westlaw, BAILII link to follow
The absence of legal representation for defendants to an action for debt who contended they could not speak English resulted in the High Court granting an application that the trial be adjourned for a second time. The judgment is a good example of the interaction of Article 6 ECHR (right to a fair trial) with the Civil Procedure Rules (CPR).
The decision by Judge Burrell QC obviously turns on its own facts. But the absence of legal aid, the rise in litigants in person, and the increasing number of persons in this country for whom English is not their first language (or indeed their language at all) mean that this is not likely to be the last such case.
According to the President of the Supreme Court, the judiciary not only has a right but an obligation “to speak out on matters concerning the rule of law.” In recent months, it is a duty from which Lord Neuberger has not shirked, and last night’s lecture to the Institute of Government was no exception. Its focus was the importance of legal aid, which Neuberger described through the prism of the UK’s constitutional set-up and the respective roles of the legislature, executive and judiciary within it.
This is not the first time that the UK’s most senior judge has intervened in the debate surrounding the Transforming Legal Aid consultation, which closed on 4 June. Back in March, he warned that proposals intended to save £350 million a year by 2015 could end up costing the Government more, with greater numbers of litigants appearing in court without legal assistance, and longer hearings.
145 barristers on the Attorney General’s Panel of Counsel have signed a letter seeking that the Government to rethink its plans for reform of Legal Aid. I was one of the signatories. The letter is reproduced on the Legal Aid Changes blog.
The letter relates specifically to Judicial Review, which is an area in which Panel counsel practise regularly. Here is a taster:
We consider that the proposals in the Consultation Paper will undermine the accountability of public bodies to the detriment of society as a whole and the vulnerable in particular. Those who are reliant on legal aid are most likely to be at the sharp end of the exercise of government power and are least likely to be able to fund judicial review for themselves, or effectively act in person.
One of the most contentious proposals in the Consultation Paper on the transforming legal aid is the removal of client choice in criminal cases. Under the proposals contracts for the provision of legal aid will be awarded to a limited number of firms in an area. The areas are similar to the existing CPS areas. The Green Paper anticipates that there will be four or five such providers in each area. Thus the county of Kent, for example, will have four or five providers in an area currently served by fifty or so legal aid firms. Each area will have a limited number providers that will offer it is argued economies of scale.
In order to ensure that this arrangement is viable the providers will be effectively guaranteed work by stripping the citizen of the right to choose a legal aid lawyer in criminal cases. Under the new scheme every time a person needs advice they will be allocated mechanically by the Legal Aid Agency to one of the new providers. It may not be the same firm the person has used before. The citizen will therefore not be able to build up a relationship with a solicitor. From a human rights perspective this, of course, begs the question would the removal of choice be compatible with the ECHR?
N.K.M v. Hungary, ECtHR, 14 May 2013, read judgment
Those of a certain age will remember when top tax rates in the UK were 98%. This was the marginal rate of tax in this successful claim that such taxation offended Article 1 of the 1st Protocol (A1P1) – the peaceful enjoyment of possessions. But the very wealthy seeking to safeguard their bankers bonuses may not obtain too much comfort from the Strasbourg ruling, as the facts were fairly extraordinary.
The applicant had been a Hungarian civil servant for 30 years until her dismissal (with many others) in July 2011. Long-standing rules gave her 8 months severance pay. The 98% tax rate was introduced in 2010; it was then successfully challenged in the Hungarian Constitutional Court. On the day of the Court’s adverse judgment, the tax was re-enacted, but this time the 98% rate was applied to pay exceeding 3.5m forints – c. £10,000 – and, further, only where the earnings came out of specified categories of public sector employees.
A fresh challenge in the Constitutional Court annulled the retrospective effect of this law, but could not as a matter of jurisdiction review the substantive aspects of the tax. So the applicant went to Strasbourg to challenge the tax when deducted from her pay.
Child Poverty Action Group, R (on the application of) v Secretary of State for Work and Pensions  EWHC 2579 (Admin) (17 July 2012) – read judgment
The High Court has ruled that the government acted unlawfully by removing the Child Poverty Commission, an advisory body set up under the Child Poverty Act 2010 . They had also acted beyond their powers by preparing a child poverty strategy without having requested and having regard to the advice of that Commission. But government is free to formulate new policy and as such there was nothing irrational about the strategy itself.
There is of necessity a great deal of statutory construction in this judgment which makes for dry reading. But the ruling is an important reassessment of the principles of judicial review that have taken root since the power of the courts to intervene in government decision making was reinforced in Anisminic Ltd v Foreign Compensation Commission  2 A.C. 147. This ruling, as every law student knows, established that a public body acts unlawfully, both in the narrow sense of acting outside its jurisdiction, and where such jurisdiction was wrongly exercised. This means that courts may intervene not just where a governmental act is unlawful under an express provision of the statute but also where the decision or policy, although authorised by statute, has been made in breach of a rule of public law. Continue reading
Last week, a number of media commentators, politicians and others sought to subvert the second consultation of the Bill of Rights Commission. This consultation invites views on a number of key issues that form part of the Commission’s mandate. In the Daily Mail’s correspondent’s view, the Commission has committed an appalling transgression by asking potential respondents whether the UK Bill of Rights should include additional rights, referring amongst other things to socio-economic rights. This is echoed by the Sun which argues that the Commission has ‘suggested’ (which it clearly has not) that ‘all Brits be given handouts as a birth right’, and the Daily Express which suggests “Spongers can Sue to Claim Benefits”.
Socio-economic rights are rights that relate to human survival and development. Like the majority of European and other countries, the UK has volunteered to be bound by a range of such rights as a result of ratifying a number of international human rights treaties, including the International Covenant on Economic, Social and Cultural Rights (ratified by the UK in 1976); the Convention on the Rights of the Child (ratified in 1992) and the European Social Charter (ratified by the UK in 1962). While these treaties haven’t been made part of our domestic law in the way the European Convention on Human Rights has been as a result of the Human Rights Act, they impose a range of human rights obligations on the UK. The government reports back periodically to the UN expert committees that monitor the implementation of these treaties.
Burnip v. Birmingham City Council, Trengrove v. Walsall Metropolitan Council, Gorry v. Wiltshire Council  EWCA Civ 629 – read judgment
In the same week that the Secretary of State for Work and Pensions, Iain Duncan-Smith, announced his intention to implement sweeping reforms of the current system of disability benefits, the Court of Appeal has ruled that housing benefit rules were discriminatory against disabled people, in breach of Article 14 read with Article 1 Protocol 1 of the European Convention.
Mr Duncan-Smith has already faced opposition to his reform proposals but has made it clear that he is willing to tackle this controversial issue. However, this week’s ruling is a timely reminder that social security law is extremely complex and that the Government will have to tread very carefully to avoid unwittingly causing further instances of unlawful discrimination.
“Yes, come to the library! Browse and borrow, and help make sure it’ll still be here tomorrow…” Thus concludes “Library poem”, penned by Children’s Laureate and Gruffalo creator Julia Donaldson, the latest high profile recruit to the campaign against planned library closures.
There have been a number of developments since we last blogged on this issue:
First, in R(Bailey And Others) V Brent London Borough Council & All Souls College (Interested Party) & Ehrc (Intervener)  Ewca Civ 1586, The appellants failed to overturn the dismissal of their application for judicial review of a local authority’s decision to close half its public libraries. See previous post here. The Court of Appeal dismissed the appeal on every ground, noting that the local authority’s decision to reduce its expenditure on public services was primarily one for it to make as a democratically elected body. Given the scale of the spending reductions required the decision was not unlawful.
Royal Brompton and Harefield NHS Foundation Trust, R (on the application of) v Joint Committee of Primary Care Trusts & Anor  EWCA Civ 472 – Read judgment.
Marina Wheeler of 1 Crown Office Row appeared for the successful Appellant in this case. She is not the author of this post
When is reorganisation of healthcare services unlawful? When can consultation, rather than a final decision, successfully be challenged? These were the questions dealt with by the Court of Appeal in relation to the reconfiguration of paediatric heart surgery services. The Bristol Royal Infirmary scandal had left these services in need of change; the Court of Appeal found that there was nothing unlawful in the consultation process resulting in the Royal Brompton failing to be chosen as one of the two specialist centres in London.
Following the failures in Bristol that were subject to a public inquiry in 1998, there have been a number of reports on paediatric heart surgical care. This is an extremely specialised area of medicine. The recent trend has been for such specialist areas (another example is major trauma care) to become concentrated in fewer hospitals: the principle being that when professionals come into contact with such work more regularly they become better at it; spreading such cases wide and thin results in poor outcomes.
Hurley and Moore v Secretary of State for Business, Innovation and Skills  EWHC 201- read judgment
This judgment, the latest in an expanding list of decisions on challenges to the Coalition government’s spending cuts, is an interesting example of judicial restraint and deference to the government on issues of macro-policy, at a time when the extent of judicial intervention into political decision-making is the subject of much debate in the legal profession and academia, thanks to Lord Sumption’s FA Mann Lecture on the subject late last year (see our post) and its recent rebuttal by Sir Stephen Sedley (discussed here).
The High Court (Elias LJ and King J) dismissed an application by two sixth form students for a quashing order against the regulations implementing the Government’s decision to raise the statutory cap on University tuition fees to £6,000 per year generally and £9,000 per year for qualifying courses. It did, however, grant a declaration that in reaching that decision, the Secretary of State for Business, Innovation and Skills had failed fully to comply with his public sector equality duties. Continue reading
R (Green and others) v GLOUCESTERSHIRE COUNTY COUNCIL & SOMERSET COUNTY COUNCIL  EWHC 2687 (Admin) – Read judgment
In the administrative court, the decisions of two local authorities to withdraw funding for library services were held to be unlawful.
The court held that the withdrawal of a local library might indirectly discriminate against people with physical disabilities, women and the elderly. Both councils had purported to carry out equality impact assessments but the mere fact that such an assessment had been conducted did not demonstrate that due regard had been given to the public sector equality duty.
Updated | Bailey & Others v London Borough of Brent Council  EWHC 2572 (Admin) – Read judgment
Every Wednesday my daughter looks forward to the arrival of the mobile library at her nursery. Two by two the children go into the little world of books and emerge holding a new story they have chosen for themselves.
Not for long. Despite the well-documented advantages of exposing children to the joys of reading at an early age – before the attractions of TV, video games and looting shops take hold – library services across the land are being targeted for cuts.
The duty to provide library services for children was one of the key arguments advanced by campaigners in Brent challenging the council’s decision to close 6 of its 12 libraries. Reliance was placed upon section 7 of the Public Libraries and Museums Act 1964. This requires local authorities to provide a comprehensive and efficient library service.
Child Poverty Action Group v Secretary of State for Work & Pensions  EWHC 2616 (Admin) – Read judgment
On 13 October 2011 Mr Justice Supperstone in the High Court held that changes to rules for calculating housing benefit were lawful and in particular did not breach equality legislation.
Two particular measures were under challenge. The first was the introduction of maximum weekly caps on the amount of local housing allowance (LHA). The second was the reduction of the maximum size in accommodation eligible for housing benefit from five bedrooms to four bedrooms.