Clarity: legal aid law and access to rights
The legal aid scheme has a central irony. Lord Bingham’s first rule of his Rule of Law was that ‘The law must be accessible and so far as possible intelligible, clear and predictable’ (The Rule of Law Tom Bingham, 2010 at 37). Why? One reason Bingham gives is simple: ‘If we are to claim the rights which … the law gives us, or to perform the duties it imposes on us, it is important to know what our rights and duties are.’ Bingham assumed that legal advice would normally be available for this. Originally written as a speech in 2006, Rule of Law was six years before Legal Aid Sentencing and Punishment of Offenders Act 2012 (LASPO).
‘Legal help’ – a basic form of diagnostic advice – went with LASPO. Often for the less well-off basic legal advice will not be available. Yet, to understand whether you are entitled to legal aid under LASPOA and its subsidiary regulations you need a relatively sophisticated lawyer to advise you. And that lawyer – or you – must read the primary material, namely the Act (i.e. LASPO: 154 sections, 27 Schedules and 314 pages of pdf text), and a number of sets of regulations. And it is no use relying on Legal Aid Agency (LAA) or Ministry of Justice secondary material. They are often wrong as Court of Appeal case law shows.
Emaciated schemes fatten the legislation
What is more worrying is the sheer complexity of a scheme which is designed – even in its emaciated form under the Tories – to help ordinary people. The more its financial reach is cut back – another irony – the more complex the legal aid scheme becomes. As the benefits it provides are cut away the more cumbersome becomes the legislation. The source legal aid Act (now LASPOA) and its supporting regulations and guidance just get longer and longer.
To get help – or to know you are entitled to help – a prospective applicant (say, Mary who has suffered domestic abuse) has to wade through a morass of legislation. First is the delegated legislation: (1) are Mary’s means below the level for her to get help (Civil Legal Aid (Financial Resources and Payment for Services) Regulations 2013? (2) Has Mary’s claim got ‘merit’ (Civil Legal Aid (Merits Criteria) Regulations 2013)? And (3) what does Mary need to produce as evidence with her application form (Civil Legal Aid (Procedure) Regulations 2012?) These are hideous documents. But first of all are Mary’s proceedings even covered by the scheme?
To answer that last question Mary finds her way through LASPOA, and to its Sch 1. There at para 11 she finds ‘non-molestation’ injunctions (she had been looking for domestic abuse; but she won’t find that in LASPOA either; though ‘domestic violence’ is in para 12). If she wants an injunction she must find her way to Family Law Act 1996 Pt 4. She must work out if she is excluded from legal aid by the exclusions in Parts 2 and 3 of Sch 1. Part 2 defines types of service not included (eg assault – does that mean her? – she was assaulted (well, no it doesn’t, but is that clear?)); and Part 3 says she cannot have ‘advocacy services’ unless in particular courts (does this include or exclude her?). The negatives and double negatives in the scheme pile on.
Human rights, a fair trial and legal aid
English common law and European Convention 1950 Art 6.1 entitles everyone to a fair trial – if they (or lawyers instructed by them) can get their claim off the ground. It says that in appropriate cases people should have legal aid when their means are sufficiently low. There is European Court of Justice case law to say that where procedure is complex legal aid should be granted. And where the legal aid law itself in so complex that average individuals without legal assistance cannot apply – because they cannot understand the law and cannot pay for legal advice to do so, surely that compounds the issue posed by Bingham’s rights question?
You may be entitled to medical help; but if you do not know the combination of the lock on the doctor’s door, your right is worthless. You may – like Mary – be entitled to legal aid (assuming she was eligible on means: her income and any capital she has). If you cannot understand the law which provides that rights and if you cannot get help – because you cannot pay for it or you live miles from a legal aid lawyer – then, like the patient without the combination number, the right is worthless. You are deprived of the right.
Feature pic : Pic courtesy of Bilal Kamoon (flickr) – thanks