There is an interesting and ingenious article entitled Legal aid cuts? What legal aid cuts? in this month’s edition of Family Law journal.
Written by Peter Graham Harris of the Oxford Centre for Family Law and Policy and Exeter College, University of Oxford, it asks where there may yet be a chink of light for legal aid within the UK. It follows on from a 2011 article written by academic Jo Miles and is based on discussions with both her and Oxford academic Dr Rob George. They claim that there is an intriguing loophole in section 10 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012.
This loophole relates to Article 6 of the European Convention on Human Rights, which governs access to court and rights to a fair trial. A case heard in 1979 at the European Court of Human Rights established a precedent for viewing lack of access to legal aid as a breach of rights under Article 6. Rights under the Convention would be breached, according to this judgement, when absence of legal representation would deny the party involved “practical and effective access to the court”.
Mr Harris says this decision remains open to the courts to develop and elaborate. In such circumstances, he argues, section 10 provides for legal aid to be granted in exceptional cases, and “creates new machinery for giving effect to judicially determined policy on the scope of legal aid.” In other words, section provides explicit provision for the Director of Public Prosecutions to grant legal aid in circumstances that would otherwise fall outside section 10, if withholding such aid would amount to a breach of their rights under the 1998 Act. It therefore provides a specific mechanism for granting legal aid where it is required under the Convention.
So litigants currently entitled to legal aid who will lose that access after April 2013 should invoke their Article 6 rights, citing this case and ask for funding to be awarded on an exceptional basis! Mr Harris argues that there are very good reasons to believe the judges will go with this line of reasoning, not least to reduce the costs to the judicial budget put on them by having to deal with litigants in person.
The Government apparently only expect about five per cent of otherwise excluded cases to receive exceptional funding but the author of this thought-provoking article thinks this may prove to an underestimate, provided a test case challenge is made and followed through.
Very neat and persuasive – I look forward to seeing this put into practice!