Q v Q ; Re B (a child) ; Re C (a child)  EWFC 31 – 6 August 2014 – read judgment
Public funding is not generally available for litigants in private-law children cases, and no expert can now be instructed in such a case unless the court is satisfied, in accordance with section 13(6) of the Children and Families Act 2014, that the expert is “necessary” to assist the court to resolve the proceedings “justly”. As the President of the Family Division observed, restrictions on legal aid in certain circumstances has led to a “drastic” reduction in the number of legally represented litigants:
The number of cases where both parties are represented has fallen very significantly, the number of cases where one party is represented has also fallen significantly and, correspondingly, the number of cases where neither party is represented has risen very significantly.
All this has led to increased calls on the Bar Pro Bono Unit, which is generally not able to meet the demand.
Sir James Munby P has therefore suggested that the cost of certain activities, such as bringing an expert to court and providing advice to parents accused of sexual offending within the family, should be borne by the Courts and Tribunals Service. Continue reading
Mousa and others, R (on the application of) v Secretary of State for Defence  EWHC 2941 (Admin) – read judgment
A postscript to Rosalind English’s post of today. In the substantive judgment (see Adam Wagner’s post on the order), the Divisional Court decided two main issues, one relating to the independence of the Iraq Historic Allegations Team, and one relating to the extent to which an inquiry conducted through IHAT complied with Article 2 of the ECHR. The Secretary of State succeeded on the first issue, whereas the claimant succeeded substantially on the second issue relating to the need for a different form of inquiry. Hence there was no overall winner; the Secretary of State won on the first issue and the claimant succeeded substantially on the second issue. But more time was spent on the first issue.
What then to do about costs? And why is that interesting – promise you, it is important.
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.
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.
Two quick things.
The first is that yesterday was the final day for responses to the Government’s latest Legal Aid reforms consultation. As I have done in the past, I will be collating some of the key organisational responses. If you want yours included in the roundup, please email me if you haven’t already. Just as a taster, why not dip into the relatively short and sweet Bingham Centre response, which is excellent, as well as the very long but solid-looking Bar Council response.
If you couldn’t make the protest yesterday, why not listen to three speeches by leading barristers Dinah Rose QC, Michael Fordham QC (pictured*) and Geoffrey Robertson QC. Fordham’s rabble rousing avocado metaphor (yes, avocado) is particularly worth devoting five minutes to. Well done to Carl Gardner along with his up and coming sound engineer Joshua Rosenberg for recording and publishing.
R (on the application of T) v Legal Aid Agency (formerly Legal Services Commission)  EWHC 960 (Admin) Collins J, 26 April 2013 read judgment This successful challenge to a decision by the Legal Aid Agency (LAA) arose from an expert assessor in family proceedings – not unnaturally – refusing to begin work unless funding was in place. If the LAA are asked to fund an assessment on behalf of a party with legal aid, then it is common for lawyers to obtain prior authority from the LAA to ensure that the expert will be paid for their work. If not, then the lawyers themselves can be liable for an expert’s costs. In this case, prior authority to pay for the expert assessment had been refused by the LAA thus resulting in further court hearings and delay in the resolution of the case for the children.
The application for judicial review of the LAA came before Collins J. He concluded that:
For the reasons given the decision of the defendant was wrong in law. Reasons have not been given. This might not have led to any relief beyond a declaration if I were persuaded that the only result could be that the decision was confirmed. Not only am I not so persuaded but I find it difficult to see that it would be reasonable, at least without engaging with the judge whether in writing or orally, to fail to comply with what she has decided is necessary. Continue reading