A European Right to Legal Aid? Part One
A key aspect of the Government’s reform agenda regarding civil legal aid is the restriction, set out in Schedule 1 to the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (‘LASPO’), of legal aid to certain categories of claim.
In particular, nearly all areas of immigration law work were removed from the eligibility for legal aid. However, since areas such as deportation and extradition clearly involve the potential application of human rights claims, the Act had to provide some means of catering for the limited right to legal aid itself implicit in the European Convention on Human Rights, which would apply wherever the Convention rights came into play. To take an example, where the Home Office makes a decision to deport a foreign national who has committed an offence within the United Kingdom, there will be a hearing before an immigration judge to determine if that decision can be successfully set aside by the individual concerned.
Three questions arise to that extent. The first is whether there is any right to legal aid in respect of that hearing. This would depend on whether Article 6 of the Convention itself applied. However, Article 6 is qualified by its terms which state it only applies in respect of the “determination of civil rights and obligations” or for criminal proceedings. Awkwardly, many areas of public law fit neither into the private law or criminal law paradigms (although the latter is itself a kind of public law). Whether it can be really said that the framers of the Convention intended whole swathes of domestic law to fall outside the scope of Article 6 is moot, at the very least, but the European Court followed that legalist reasoning to its logical end, and held, in Maaouia v France, that inter alia immigration law did not involve the determination of “civil rights and obligations”. Any procedural right to legal aid under Article 6 was therefore itself moot, since the Article could never substantively apply to the hearing at all.
This, it was soon noted, could be conveniently sidestepped by a clever expedient. Provided the claim fell within the bounds of European Union law a more extensive protection might lie. Under the EU Charter of Fundamental Rights a ‘legal aid article’ exists in the form of Article 47(3). Importantly, that article does not include the restrictive terms that Article 6 does, so that all character of law falls within its protection. Also fundamental is that the European Court of Justice had stated in its decision in DEB that this would be interpreted in line with Article 6 so that no inconsistency lay between their applications. So, the European citizen awaiting deportation could rely on EU law instead. The American, the Australian, or the Nigerian, could not.
The final question which arose was whether other Articles included a procedural aspect which required legal aid to be granted. Most notably, Article 8 would be engaged substantively to determine in many of these cases whether deportation, extradition or other state decisions were lawful as proportionate interferences with the individual’s family and/or private lives. Although Article 8 does not explicitly include a procedural aspect, it had been previously raised in other cases whether a right to legal aid might derive from Article 8. This would, for many cases, render the above discussion rather moot, and would be a boon for the non-EU foreign national.
LASPO is constitutionally a fascinating Act in the history of UK human rights jurisprudence. For the first time, in this author’s understanding, it purports to prospectively cater for the Court’s consideration of the primary legislation’s, and the Legal Aid Agency decisions’, compatibility with the Convention under sections 3 and 6 of the HRA respectively. For this purpose, it provides a scheme in section 10 called “Exceptional Case Funding” whereby applicants may apply to be eligible for legal aid where failure to provide it would breach their ECHR or EU law rights, as considered above. That very scheme is now open to challenge under administrative and human rights law angles. In tomorrow’s post we will see whether the Government policy guidance issued under the Act was held lawful in public law, and whether the recent refusals to provide aid were a breach of the HRA.