The Graham Turnbull Essay Competition 2013 In view of the scope and extent of civil legal aid cuts,

is the UK in breach of its obligations under the European Convention on Human Rights?

Human Rights Committee of The Law Society of England and Wales

The Graham Turnbull Essay Competition 2013

In view of the scope and extent of civil legal aid cuts, is the UK in breach of its obligations under the European Convention on Human Rights?

Published by the Law Society of England and Wales 113 Chancery Lane, London, WC2A April 2013

Contents
The Graham Turnbull Essay Competition 2013 ..................................................................... 5 Winning Essay: Niall Coghlan ............................................................................................... 9 Runner-Up Essay: Jennifer Blair ......................................................................................... 19 Special Award for Creativity: Petras Borisovas.................................................................... 25 Essay summaries of the shortlisted candidates ................................................................... 37 Summary of essay by Ruth Atkinson-Wilks ..................................................................... 37 Summary of essay by Eirwen-Jane Pierrot ...................................................................... 39 Summary of essay by Angelique Pouponneau ................................................................ 41 Summary of essay by Rosie Eleanor Scott ...................................................................... 43 Notes .................................................................................................................................. 45

The Graham Turnbull Essay Competition 2013

In view of the scope and extent of civil legal aid cuts, is the UK in breach of its obligations under the European Convention on Human Rights?

The Human Rights Committee of the Law Society has traditionally run an annual human rights essay competition for law students across England and Wales. The competition is named after Graham Turnbull, an English solicitor, who did much to promote respect for human rights. Graham was killed in February 1997, aged 37, while working as a human rights monitor on the United Nations Human Rights Mission in Rwanda. The Human Rights Committee founded the competition in 1998 to honour Grahams commitment to human rights. It aims to encourage awareness and knowledge of international human rights issues and remedies among young lawyers. The topic for the competition in 2012 was In view of the scope and extent of civil legal aid cuts, is the UK in breach of its obligations under the European Convention on Human Rights?

The essay competition was open to all students from around the world who were less than three years qualified at the closing date. Six essays were shortlisted from the entries by a panel from the Human Rights Committee. The winner and runner-up was chosen from the shortlist by this years judge, Roger Smith OBE, former Director of JUSTICE.

This short booklet reproduces the winning essay, the runners-up essay and summaries of the remaining four shortlisted essays. The summaries were written by the shortlisted authors and are published in alphabetical order.

The author of the winning essay was Niall Coghlan who will be awarded a prize of 500, funded from the Graham Turnbull Memorial Fund.

The runner-up was Jennifer Blair who will be awarded book tokens to the value of 250 kindly donated by LexisNexis Butterworths.

This year a new award of 100, sponsored kindly by the Human Rights & Equality Consultancy, was introduced to award creativity. The winner of this award was Petras Borisovas.

The Graham Turnbull Essay Competition 2013

In view of the scope and extent of civil legal aid cuts, is the UK in breach of its obligations under the European Convention on Human Rights? By

Niall Coghlan

Winning Essay: Niall Coghlan

Socrates: These cuts to civil legal aid seem rather immoral, do you not think, my friend?

Lawyer: Their morality is irrelevant. Both in theory and in practice, these cuts are contrary to the European Convention of Human Rights. S: I doubt law can stop them. Show me why Im wrong. L: Numerous legal organisations have declared as much.1 There are minor points on Article 8 and Article 2 Protocol 1, but the main thrust is that these cuts breach Article 6: the right to a fair trial.

S: Does Article 6 gives a right to legal aid?

L: Yes. Well, it does, but only in criminal cases (63(c)). S: And how much of the legal aids budget goes on criminal cases?

L: 1.2bn of the 2.1bn pre-cuts. 385m is to be cut. The previous government felt civil aid was too low, so sought to cut criminal aid to boost civil.

S: But these Coalition cuts almost exclusively target civil aid. The fact criminal aid has not been cut, despite being the bigger amount, suggests the government feels bound by 63, so international law is doing something.

L: I suppose. But the cuts to civil aid are still a breach of 61.

S: Why?

L: Because the Court held in Airey that 61 would be meaningless if court access were merely theoretical; practical and effective access is required, and, in that case, it was held
1

http://www.bihr.org.uk/sites/default/files/BIHR%20Legal%20Aid%20Response_SENT.pdf; http://www.parliament.uk/documents/joint-committees/human-rights/BILLS%20(10-12)%20161%20%20Letter%20from%20the%20Law%20Society%20on%20LASPO%20bill.pdf; http://www.barcouncil.org.uk/media/53749/bar_council_response_-_green_paper_legal_aid_reform__final_14_02_2011.pdf, p46

legal representation was necessary. As the applicant could not afford this, legal aid was required. Clearly, these cuts breach that. S: So the court held there was a general right to legal aid? Why is the country not in breach already for defamation cases being given no funding? L: Fine, it is a little more complicated than that. First, not all civil actions come within 61 only ones affecting civil rights and obligations.

S: And what constitute civil rights? L: Well, now you mention it, this is not a straightforward question. Within 61, rights are defined objectively by the Court, not countries; however, the starting point for determining this is what rights are conferred under national law.
2

This is a question of substance, not

labelling. Only the procedure, not the substance, of those rights is then protected.3 Finally, it applies only to private rights, not public ones, although private rights have been construed very widely by the Court.4

S: But there is a consistent, though complex, set of rules as to what is a civil right?

L: This is the other problem. The Court has progressively widened 61, but there is little principle as to what constitutes a right: welfare is; taxation is not.5

S: Yet you are sure the cuts affect rights? L: They must do. The vast majority of the cuts for legal representation fall on family cases.6 Not only do these inherently engage Article 8, the right to family life, but the Court has consistently held they form rights under 61.7 Employment, which is to be cut by 94%, does too.8 Same goes for clinical negligence.9

S: What about, say, immigration? After family, this is the largest category of cases.
2 3

Konig v Germany 1978 at 88-89; Roche v UK 2005 at 120 Roche 4 e.g. Eskelinen v Finland 2007 5 Salsei v Italy 1993; Ferrazzini v Italy, 2010 6 http://www.publications.parliament.uk/pa/cm201011/cmselect/cmjust/681/681i.pdf, p30 7 W v UK 1987, McMichael v UK 1995 8 http://www.publications.parliament.uk/pa/cm201011/cmselect/cmjust/681/681i.pdf, p30; Pellegrin v France 9 Hrobova v Slovakia 2006

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L: No, immigration cases do not fall under 61. In fact, the Court recently declared even asylum cases do not engage it.10

S: Why are asylum cases not cut, then? L: Checking LASPO, immigration cases are only protected when they engage other rights like domestic violence.11 And asylum itself is protected because of obligations under the Refugee Convention and ECHR 2-3, not 61.12

S: Again, then, international law is successfully dictating certain minimums. Is housing a right?

L: This is the fourth-biggest category of cuts. And no, the Act excludes all housing cases except those involving the loss of a home, which is all the Court requires.13

S: So in fact, some of these cuts do not even engage Article 6 in the first place, meaning legal aid is irrelevant?

L: Well, they might. The BIHR argues that immigration cases often involve Article 8 points, because of which they might be held to affect civil rights.14 S: Does the Courts case-law support this? L: Admittedly, Pellegrin noted The fact that the exclusion order incidentally had major repercussions on the applicants private and family life or on his prospects of employment cannot suffice to bring these proceedings within the scope of civil rights protected by [61].15 So perhaps not. S: Nevertheless, the bulk of the cuts on family and employment, at least do affect civil rights. And under Airey, these rights will give rise to a right to legal aid?

10 11

Maaouia v France 2000 LASPO, Sch 1 Part 1 (24-31) 12 Ibid., 30(1) 13 Ibid., (33-5); Sporrong v Sweden 1983 14 See note 1 15 at 38. Farran, UK before the ECHR 1996, claims an article 8 point can create a right, citing 2991/66. But this case was settled without judgment.

11

L: This is the second complexity. The answer is: not always. It depends on the facts of the case.

S: How so?

L: Anxious to dispel accusations that it was creating an unlimited legal aid liability, Airey warned against generalising its conclusions. Everything depended on a cases particular circumstances. It also noted that legal aid was not the only way to guarantee access to the court: simplification of procedure and other schemes could be used. S: Hence the governments proposal of using conditional fees for clinical negligence cases?

L: Yes. S: And what particular circumstances are required to breach 61?

L: This was laid out fully in a later case, Steel. A pair of hippies handed out pamphlets criticising McDonalds. The subsequent libel trial was found to breach 61 by the Court. It gave three criteria: a) what is at stake, b) the legal and procedural complexity and c) the applicants capacity (61).

S: Now, taking Airey and Steel together, just how complicated and grave does a case have to be to be to reach this threshold?

L: Admittedly, these cases set a high bar. In Airey, the applicant was seeking divorce from an abusive husband. This could not be obtained in the District Court, where the procedure is relatively simple, but only in the High Court. (24) The legal fees would be more than her yearly income.

S: And Steel? L: Here, the bar was still higher. McDonalds spent 10m on the case; the defendants were penniless. The trial lasted a year and involved 130 oral witnesses. The case was held to be so exceptionally demanding that, given the extreme disparity in legal arms, unfairness was found.

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S: And, if I remember, it was reported at the time that the Court had held on six previous occasions that the lack of legal aid for defamation cases did not breach 61(54). L: Yes, this is true. The Court does seem to find only truly exceptional cases in breach.16

S: So, returning to the cuts: will they reach the Steel standard of unfairness, as you argue? L: Procedurally, the vast majority of family cases are held at the County Court or below.17 And few employment cases surpass the Employment Appeal Tribunal, which is supposedly simple enough for most claimants to self-represent.18 Nevertheless, there will be many cases that are too complicated for self-representation, so I think there is still a breach. S: Lets pause and look at these exceptional cases properly. Is there any way an exceptional case can be funded under the Act?

L: Of course: the Director of Legal Aid can allow funding in exceptional circumstances, specifically defined as cases in which a lack of funding would breach the ECHR or EU law.19

S: I see. So where is the breach of 61? L: ItI may have misspoken before. It seems the Act has been drafted precisely to provide the minimum level of funding compatible with 61. So yes, in theory, there is no breach.

S: If this is how it was drafted, this is unsurprising. At the start of our conversation, though, you mentioned the Act would also be in breach in practice. Perhaps you will find more luck, if you tread more modestly, on these grounds.

L: There are three ways in which it could still be found in breach. The first is that the Act does not require an independent review of the Directors decisions on funding exceptional cases. This could prove arbitrary and thus contrary to 61.20

16 17

See X v UK 1978, p136: Only in exceptional circumstances http://www.justice.gov.uk/downloads/statistics/courts-and-sentencing/judicial-court-stats.pdf, p40 18 Ibid., p153 19 LASPO s10 20 http://www.publications.parliament.uk/pa/jt201012/jtselect/jtrights/237/23704.htm at 1.27; LASPO s12(5-6); and MAK v UK at 45.

13

S: Yes, though this could be quickly remedied by setting up such an independent review system.21 The second?

L: The second possibility is that the Court might step beyond the current case law on legal aid. The Court does emphasise the evolving, living document nature of the Convention. However, this would be surprising. As we saw in Airey, the Court is very wary about creating unlimited liability; in Steel, they noted the limited financial resources of most civil legal aid schemes, meaning states may establish priorities which may exclude whole categories from aid.22

S: That said, Steel was about defamation law, a particularly high-risk type of case. They concluded in another case that this high-risk nature meant their wholesale exclusion had not been shown to be arbitrary.23 Might the Court be willing to hold that excluding vast swathes of low-risk family cases is arbitrary? L: Perhaps. But the Courts logic on civil aid that even criminal legal aid is only protected when justice requires it (63), so civil legal aid must have a lower standard of protection is seductive.24 Further, the Court is likely, for political reasons, to be unwilling to deepen obligations presently.25 This is so particularly in light of the current rift over prisoners franchise.

S: And what is the third?

L: During the inevitable flood of test-cases, a national court may make a declaration of incompatibility under s4 of the Human Rights Act. This would be unprecedented in the field of legal aid. In Perotti v Collyer-Bristow 2003, the Court of Appeal set out its view. Reciting the ECtHRs case-law, and noting national courts power to order aid in criminal, but not civil, cases, Chadwick LJ held It is not for this court, or any other court, to direc t the [Legal Services] Commission to exercise its discretion to provide funding.(26)

S: Did Chadwick say he would ever intervene?

21 22

As provided for: LASPO s12(6) S and M v UK 1994 23 10781/84, unreported, cited in Munro at 518 24 Munro at 1 25 http://ukhumanrightsblog.com/2012/04/17/an-appeasement-approach-in-the-european-court-ofhuman-rights-professor-helen-fenwick/

14

L: Yes: where the national court really cannot do justice in the case because it has no confidence in its ability to grasp the facts and principles of the matter.(32) However, like Airey, this sets a very high bar, and applies only to the individual case. Rather than declaring the relevant law incompatible, the natural course would be a petition to the Director for exceptional funding under s10.

S: This is all very contingent. The courts have to be sympathetic, or daring; many poor litigants with complex cases have to have the time to fight through their cases; and, most incredible of all, the Director has to be miserly with exceptional cases a surely unheard of characteristic amongst civil servants. If this happens often enough, the UK may indeed be in systematic breach of its obligations.

L: Yes, Socrates. In theory, there is no breach; in practice, there may be, but only if Fortune is kind. What is to be done? S: Old friend law has played its part, it seems, in limiting the scope and extent of the cuts. As I began by saying let us now see if we can make a moral case against them.

15

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The Graham Turnbull Essay Competition 2013

In view of the scope and extent of civil legal aid cuts, is the UK in breach of its obligations under the European Convention on Human Rights? By

Jennifer Blair

17

18

Runner-Up Essay: Jennifer Blair

Introduction We will not deny or defer to any man either justice or right. The Magna Carta, 1215 Article 6.1 of the European Convention of Human Rights (ECHR) states that: in the determination of his civil rights and obligationseveryone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. With the advent of the welfare state, the Legal Aid and Advice Act 1949 created a funding scheme to facilitate access to our legal system; the original means test offered eligibility to 80% of the population, but over time legal aid has become the ill-favoured sibling of other branches of the welfare state and eligibility dropped to only 29% by 2007.26 In 2013 the vast cuts set out in the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) will cause an unmatched diminution to the public funding available for access to legal help, advice and representation. In my view LASPO is broadly compliant with Article 6.1 ECHR, which affords a wide margin of appreciation to how states ensure access to the courts. However, I believe aspects of the changes are extremely problematic and there are likely to be specific cases which, on the right facts, will show that the provisions of LASPO provide inadequate protection for our obligations under the Convention. Below I will explore the approach taken by the courts to legal aid in civil cases under Article 6.1, how this relates to LASPO and impact of the changes on other articles of the Convention. No right to legal aid in civil cases Article 6.3(c) ECHR includes provision for legal aid for defendants in criminal proceedings; no equivalent provision is made in 6.1 and so there is no general ECHR right to legal aid in civil proceedings. However, the European Court of Human Rights (ECtHR) has been prepared to find that the absence of legal aid can cause a trial to be unfair on the facts of

26

3.1, p.68; Review of Civil Litigation Costs; 2009

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specific cases on the basis that the Convention is intended to guarantee not rights that are theoretical or illusory but rights that are practical and effective.27 These factors were recently summarized in the European Court of Justice case Deb Deutsche Energiehandels und Beratungsgesellschaft MBH v Bundesrepublik Deutschland [2011]2CMLR21. Here the Court concluded that states have a wide margin of appreciation in how they ensure fair access to courts and so it is possible for a state to impose conditions on grants of legal aid and have a legitimate assessment process (such as the means/merits tests that has been employed in the UK), which should not undermine the essence of a Convention right, should pursue a legitimate aim, should be proportionate and must not be arbitrary. When a court is examining the fairness of a case it will need to consider among other things the subject-matter of the litigation (e.g. does it include another Convention right), prospects of success, importance of what is at stake for the party, complexity of the law and procedure and a partys capacity to represent themself effectively (e.g. perhaps due to level of education, the emotional impact of the case or challenges due to disability). LASPO and Fair Trial The principles identified above mean the UK is entitled to set qualifying criteria for access to legal aid (as through s.9 LASPO) and in general is even permitted to restrict legal aid from certain legal practice areas (Schedule 1 LASPO).28 However, even where a blanket ban for a type of case would generally be justifiable, in an exceptional case the ECtHR can require access to legal aid to be available to meet obligations under Article 6.1.29 LASPO takes on board the emphasis on exceptional cases in ECHR case law in s.10 of the Act by giving the Director the power to make an exceptional case determination to grant legal aid to prevent a breach of ECHR or enforceable EU treaty rights. Schedule 1 Part 2 of LASPO outlines cases that will be excluded from legal aid, including nearly all tort cases. Generally in these areas it seems likely that either alternative routes to access the courts may be available30 in the form of conditional fee agreements (looked at in

27 28

Airey v Ireland Series A, No.32,(1979-80) 2EHRR305; para24 Munro v UK (App.No.10594/83)(1988)10EHRRCD516 29 Steel and Morris v UK [2005]EMLR15 30 Airey v Ireland, para26.

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Part 2 of LASPO) and/or the government would seek to justify this restriction on the basis of the margin of appreciation, with separate provision made for exceptional cases by s.10.31 Legal aid to pay for representation is excluded under LASPO except for in the courts set out Schedule 1 Part 3, which are in the main only courts where it may be expected that clients will face complex procedure and law (e.g. primarily the High Court and above and in some circumstances the Upper Tribunal). While this may make it more difficult for clients who will have to represent themselves in the first instance and may lead to some harsh results, Article 6.1 does not provide for a total equality of arms, particularly in cases which revolve primarily round questions of fact, and so again, in general, this restriction seems unlikely to breach the ECHR.32 Even so, it should be borne in mind that the ECtHR does not consider cases in general, but on the particular facts of individual cases and it is possible to foresee problematic cases excluded from legal aid where a client would not be able to effectively present their case. Many such cases will relate to significant civil rights and responsibilities, to property, livelihood or education, and are likely to be far from rare, for example: LASPO retains legal aid for alleged victims of abuse/domestic violence, but not for alleged perpetrators creating a serious risk of inappropriate cross examination of a victim, including a child victim, by a perpetrator, which could render a trial unfair due to the intimidation of a witness or unfair emotional pressure unlikely to produce best evidence.33 LASPO retains barely any legal aid for family cases and so there would be no support for the enforcement of a consent order even though such an order might have a major impact on legal and family rights. There will be no legal aid for personal injury cases, which can include extremely complex expert evidence, and it can be very difficult for defendants in such cases to obtain a CFA.

31 32

X v United Kingdom (App.No.9444/81)(1984) 6EHRR136 Pine v Law Society (2001)WL1171930 33 Schedule 1 Part 1 paras3 and 12; c.f. P, C and S v United Kingdom (App.No.56547/00)(2002) 35EHRR31

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There will usually be no funding for employment cases, even at the appeal stage, no matter how complex the case or severe the impact on the individual; this may have a chilling impact on employment discrimination cases.34

On this basis, litigation around Article 6.1 is likely to focus on the efficacy of the s.10 provision for exceptional case determinations. This power will need to be exercised sensitively, promptly (very promptly in urgent cases, such as housing cases experiencing severe nuisance) and proportionally. It must also be possible for individuals to actually access s.10 and without any legal aid for the application for an exceptional determination this final safeguard may fail many. It remains to be seen if the implementation of s.10 will be up to the challenge of providing a practical and effective safeguard of the ECHR.

An Arbitrary System? For a legal aid system to be accepted by the ECtHR its selection process must be procedurally fair.35 The Joint Committee on Human Rights has raised concerns that suggest the new system will not be sufficiently robust to claims of arbitrary interference with Article 6.1. The Committee has highlighted that the lack of independence of the Director from the Lord Chancellor may lead to conflicts of interest in public law cases.36 Of more concern, however, is the Committees unease regarding the lack of any right of appeal against a determination from the Director on whether a person qualifies for legal aid.37 While a challenge by way of judicial review would be available, this would be a review not appeal and it may be that the ECtHR would not see this as a sufficient safeguard to Convention rights.38 LASPO and Other Human Rights Legal aid is a bulwark for fundamental rights; our courts are bound to uphold the ECHR and so it is through litigation that Convention rights find some degree of even horizontal protection. While LASPO makes provision for litigation explicitly against a public authority for breach of a Convention right,39 no similar provision is made for other civil litigation. When a
34 35

C.f. EHRC Consultation Response, 2011 Santambriogio V Italy (App.No.61945/00)(2005) 41EHRR48 and Martin v LSC [2007]EWHC1786(Admin) 36 Legislative Scrutiny: LASPO, 2011; Para1.22 37 Ibid, Para1.28 38 C.f. R (KA) v Essex County Council [2013]EWHC43(Admin), from para28. 39 Schedule1, Part1, para22.

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trial includes examination of Convention rights, the margin of appreciation on access to the law can be much narrower, for example in relation to care proceedings or other pressing Article 8 issues.40 People unable to put their case properly in earlier proceedings will be in the ridiculous position of having to wait until a Convention right has been breached to seek justice. If another forum (such as criminal law) is available to protect rights, there may not be a breach of obligations under the Convention,41 but in many situations no other remedy will be available or the most appropriate remedy will be civil. Arguably restricting the protection of cases that involve Convention rights breaches Article 13 ECHR the right to an effective remedy and Article 14, since economically disadvantaged clients would be discriminated against. Below are some key examples of areas where LASPO does not offer sufficient initial protection for the UKs obligations under the ECHR: The definition of domestic violence in LASPO is narrower than the Home Office definition which means many victims of domestic violence may be effectively barred from litigation, including for emergency injunctions. This is likely to breach positive obligations under Articles 2 (right to life) and 3 (prohibition against inhuman and degrading treatment).42 The removal of asylum support cases from the scope of legal aid may result in forced destitution amounting to inhuman and degrading treatment in breach of Article 3.43 No legal aid for strong welfare benefits claims relating to a persons sole source of income could breach Article 3, particularly alongside Article 14 if a disabled person faced additional barriers. Relevant cases concerning foreign national prisoners, deportation and family reunion may not be safeguarded against unlawful interference with Article 8, when many migrants have strong ties to the UK, but may face additional barriers to legal access, such as language barriers. The high number of education/SEN cases where clients will fall above the income threshold for legal aid, but still not be able to afford legal advice could breach Article 8, particularly alongside Article 14 since so many cases involve disabled children.
40 41

P, C and S and Ciubotary v Moldova (27138/04)(2010) 29BHRC326 Munro v UK and Del Sol v France (2002)35EHRR38 42 Opuz v Turkey (App.No.33401/02)(2009) 43 R (ex p Limbuela) v SSHD [2005]UKHL66

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Conclusion In conclusion, LASPO shows an awareness of international human rights jurisprudence, but it lacks sufficient rigour and disregards the infinite complexity that can arise in practice. It is also important to bear in mind that the ECHR merely provides us with a bottom line of fundamental rights; we need not stop there. The UK has a robust legal system and that the protection of the rule of law provided for internationally is mirrored at the heart of the British Constitution. It is something we must fight to maintain at its highest. As A.V. Dicey wrote in 1885, the rule of law means that everyone is equal before the law regardless of social, economic or political status.44

44

Introduction to the Study of the Law of the Constitution , e.g. ISBN-10:0865970033

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Special Award for Creativity: Petras Borisovas

THE CASE OF TWIST AND MINISTRY OF JUSTICE A Comedy of Two Parts * CAST: OLIVER TWIST, litigant-in-person GREASLY, a barrister SMITH J CLERK PART I Wherein Sir Oliver Pleads His Case * *

Scene: Courtroom (with the audience as the public gallery.) A soft murmur from backstage. OLIVER and GREASLY at their desks. Enter the CLERK. CLERK: All rise! The Honourable Mr. Justice Smith Will enter. Order in the Court. Enter SMITH J. The Court is now in session. The case of Twist and Ministry of Justice May now commence.

OLIVER:

My Lord, before you stands a simple man A layman, but no layabout; Who, through misfortune, but not fault Must now resort to legal aid to fight his legal bout.

GREASLY: SMITH:

An oft-heard story! Good sir! Let him speak. Fair Lady Justice in this land does not discern

25

OLIVER:

Whether Her patron is all-powerful or meek. Your words encourage me, My Lord, but they ring false For Justice has become a lady of the purse.

SMITH: OLIVER:

And on what grounds do you propose this slur? My Lord, it is the common access to the courts By both gentility and guttersnipe That crowns our Lex as Rex, not otherwise.

GREASLY:

It might surprise you that we have a Queen. And Parliament - and its decrees - still reign supreme!

OLIVER:

Perhaps, but three score years ago this land Itself saw fit to fashion, dress and guide a compact To guard the rights of man.

SMITH: OLIVER:

I know of this Convention. Then I shall spare the hors d'oeuvres And serve the meat and mash that make my case. My Lord, I may appear to speak alone, but this Is naught but echo of a choir half-million strong That has no coin to raise its voice above the common throng.

SMITH: OLIVER:

I see no other names on either brief. It's all too easy to discard the forest for the trees But they are there: the destitute, the maimed And those in flight.

GREASLY: SMITH:

Hark! Beggar, cripple, vagabond. If I hear one more sound from you before your hour comes I'll have you out by horn and hoof and tail.

GREASLY: SMITH: OLIVER:

'Twas but a jest, My Lord. 'Tis not the time for japes. Continue. We live in desperate times, and oft resort to desperate measures 26

And though we may regret the passing of our pleasures It is when our rights as men GREASLY: SMITH: OLIVER: And women. Greasly! - are given price That thriftiness transforms from virtue into vice. SMITH: OLIVER: The courts don't run on air. That doesn't mean the system can't be fair. Justice is not luxury. Though folk may differ in what they afford Lawyers must come at the behest of both the peasant - and the Lord. SMITH: OLIVER: GREASLY: SMITH: OLIVER: GREASLY: SMITH: OLIVER: And what prevents a man from speaking for himself? The law. The law?! The law? Explain yourself. Certes. It need not bind the tongue by content... Hark! I yield! ...When such designs are easily achieved by volume and by form. Three and a half thousand - and no less Pieces of new legislation graced the press Only in year two thousand ten; I dare not think how much it's grown since then. They range in volume, that is true: Some are merely a page or two But some are hundreds. SMITH: But ignorance was never an excuse. 27

OLIVER: SMITH: OLIVER:

There's more, My Lord. Go on. Our courts are built on strife. Two sides Present two truths, and only one survives. I must remind you: those most in need of legal aid The meagre, migrant and the maimed For whom the language is a challenge, not a game Would go against the learnd and the wise.

GREASLY: SMITH:

They need not bother then, and compromise. For once I do agree. If courts are such a burden Why not entirely avoid the hurdle And settle matters, man to man?

OLIVER:

My Lord, how do you propose a spouse Who lived in misery for years And is now timid as a mouse Would quickly overcome her fears And look her partner in the eye Ignoring years of pain that have gone by? What people need is justice, not coercion That which is fair, and not convenience.

GREASLY: OLIVER:

You speak of one example. True. But in these turbulent times The bells that wed are just as common as divorcing chimes.

GREASLY:

Your masters and your betters pledged To make these laws as simple as your simple minds can grasp. They are not legion; give them time.

OLIVER:

You offer mercy, then, for masterminds behind this crime? 28

SMITH: OLIVER:

Sir Oliver! I would expect such words from your opponent, not from you! My Lord, I should have held my tongue on cue. And I apologize, for, in this country, libel Offers no alms to the impoverished, unlike the Bible.

GREASLY: SMITH: OLIVER:

How insensitive! Think of others - of a different creed! Sir Greasly, you may start by following his lead. My turn of phrase may turn some heads But I have always welcomed those in need; "My masters" and "my betters", though Now turn their backs, in word and deed.

What good are promises? They neither feed nor clothe; It is with law today that we must cope. Until the Parliament sees fit to make the court An avenue of last resort As it is meant to be; until the law is clear (And probably when Rapture's drawing near) There will be need of lawyers, their advice and aid And that their timely bills on time be paid. SMITH: OLIVER: You mention migrants. What of them? I argue, Lord, that only a Breach Would put such families out of reach Of each other - without recourse to legal help. GREASLY: You'd have the sire AND the whelps? More litter on the streets? More beggars? Thieves? OLIVER: Better litter on my street than blood On my conscience and my hands; Better their children here as urchins 29

Than corpses in some distant lands. My Lord, I urge you - hear my plight. Do not go gentle into that good night Declare: access to justice is a right Inalienable to the destiny of Man. To tinker, to tailor, Soldier and sailor, Rich man, poor man, Black man, white man, Beggar man, thief. I now have said my piece And made my peace. SMITH: Lights dim. Very well. Let us adjourn.

PART II Wherein Sir Greasly Argues for the State and a Verdict is Reached Scene: Same courtroom (with the audience as the public gallery.) GREASLY on his feet. SMITH: GREASLY: OLIVER: GREASLY: Sir Greasly, you may speak. My Lord, I shall endeavour to be brief. And to myself my views I'll try to keep. How droll! My Lord, Sir Oliver is neither "friend", nor "learned", But for tradition's sake that's how he will be heard. Justice is available to all, including horn and hoof; And as needs must - when devil drives 30

So I shall play the part of devil's advocate. My argument runs thus: in wisdom and direction The Parliament and Government in concert Have managed to achieve perfection An instrument for human rights protection That trims unnecessary fat OLIVER: GREASLY: OLIVER: GREASLY: Cuts to the bone. I thought you said you wouldn't moan? Sorry. As well you should be. My Lord, you have to understand My learned friend mis-sold this land. The situation - grim: the Treasury in dire straits With not a penny left to go to waste. The Convention is convenient enough To leave each state With a fair margin To act when times are tough. While leaving open courts to all requiring access The Government decided that it values taxes. The tax-payer must see his tithe bear fruit So to non-essential parts to legal aid - the axe, To excessive migrant woes - the boot. Echoing my learned friend, In desperate times we must resort to desperate measures When Treasury can ill-afford to shed its treasures. OLIVER: Your language, Greasly, leaves me ill at ease. 31

GREASLY: OLIVER:

The legalese?

No. Your eagerness to talk of value and of taxes Your readiness to think in terms of boots and axes These are financial terms. Tax-payer and citizen are not the same (Although in better times they are of equal fame) You cannot purchase rights as "bargains" But shop for wrongs wholesale. GREASLY: OLIVER: What do you mean? I speak of thousands languishing in jail Each worth a pretty penny. GREASLY: That's neither here nor there: That topic was discussed last year. OLIVER: GREASLY: I'm sorry. As well you should be. My Lord, I stress - there is no automatic due In the Sixth Article for States to pay For lowborn folk without a legal clue And migrants on a legal holiday. SMITH: GREASLY: What is your point? Out with it! It is the following that I submit: It is no crime for rulers of the State To sift the meritorious from legal bait; To the most worthy lend a helping hand And let the rest live off the land. To let simple matters lie outside the scope

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Of noble men, be dealt by simple folk. It is access to justice, not the courts That our State now wishes to support. OLIVER: GREASLY: Do not the courts still bear the scales of Themis? Yes; but at what cost? A single penny won at trial May lead to a pound lost. Let mediation reign; let law reform Until the Court is shunned, and not the norm. OLIVER: GREASLY: I spoke of this already. But my learned friend In his devout desire to defend Ignored the shield already on the table And chose to spin a pretty fable: Of meagre, migrant and the maimed As victims of some social blame. We deal in law, and law decrees: To each - the justice that accords his needs. OLIVER: And those unfortunate to fall outside The law - by silence or by rights denied? GREASLY: If you had bothered with the Act You'd find the object of that Treaty Largely intact: Those on the side may lay their fate Before Director General of Legal Aid; If in his wisdom he decrees Exceptions may be made.

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OLIVER:

You'd have us leave such large discretion Within the State's possession? There is no Treaty law or case forbidding this. Perhaps not in its text, but in its heart: For certainty in any system plays a part. How is a man to know whether his rightful claim Will not be subject to an autocratic game?

GREASLY: OLIVER:

GREASLY:

My Lord, let us dispense with farce: it is a simple matter. The law debated here is clear and to the letter. The State must, in this case, have prudently obtained Legal advice on drafting legal rules to govern legal aid. It breaks no Strasbourg judgment, nor the Treaty flesh, And where it shows an imperfection Director General is there to make correction. Dismiss this claim, My Lord.

SMITH:

I heard both sides, and listened to each plea And this is how the matter now I see: It seems to me this noble state Has found a novel crime to propagate: Violate the spirit, but leave the flesh intact And then use sloppy patchwork to conceal the act. The law from Strasbourg merely illustrates How the Convention is applied from case to case. It is effective means to access justice that we need Not one purporting to on paper, but not deed That makes the law accessible to all - and no discretion Is remedy enough for this oppression.

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I balanced all, brought all to mind: It's for the Claimant I must find. GREASLY: SMITH: Curtains. Justice is blind. Greasly! OUT!

- The End -

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Essay summaries of the shortlisted candidates

Summary of essay by Ruth Atkinson-Wilks

The key argument of my essay is that sentencing practice must be proportionate. There has always been agreement that the most violent offenders should face prison. But imprisonment is not a proportionate course of action for non-violent offenders, who should receive alternative sentences instead. As the UK prison population doubled over the past 30 years, this progressive idea has not held sway. Today, two thirds of the female and half of the male prison population are nonviolent. These offenders are typically from disadvantaged backgrounds and deprived of their liberty, privacy and family life in return for petty crimes such as shoplifting or minor drugrelated offences. Locking them up does not protect society, because the majority re-offends on release. Current sentencing practice is therefore disproportionate. International human rights law does not, unfortunately, offer sufficient remedies. Despite the prohibition of disproportionate sentences (e.g. Article 3 of the ECHR), courts around the world allow governments a wide margin of appreciation in determining what is proportionate and what is not. My essay therefore argues for law reform. Unnecessary criminal offences should be removed from the statute books and judges should be empowered to pay greater attention to offenders individual circumstances. In carrying out these reforms it is firstly not to be forgotten that much violent crime continues to go unpunished, for example, in the domestic context. Victims of domestic violence have rights too to equal protection under the law. Enforcing their rights more vigorously, as they ought to be, would increase the number of violent prisoners worldwide. Secondly, the actual alternatives to prison are not automatically proportionate. For example, electronic monitoring of offenders is psychologically wearing and, in the case of non-violent offenders, usually as disproportionate as a prison sentence. The move to a more proportionate sentencing regime no doubt requires a cross-societal effort to succeed. It requires all citizens to be critical of media and politicians who clamour for ever harsher sentences, and it requires policies to reduce social inequalities. Through their advocacy human rights lawyers like Graham Turnbull can fuel the debate. Change will not come about overnight, if at all it will. Nevertheless, every single case undertaken by a human rights lawyer to prevent or end a disproportionate sentence is a case worth fighting for.

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Summary of essay by Eirwen-Jane Pierrot

When the then Justice Secretary, Kenneth Clarke, unveiled his plans for 350 million of cuts to the annual legal aid budget, he did so proclaiming that legal aid would be preserved for claims involving fundamental rights where where peoples life or liberty is at stake. It was therefore the civil legal aid bill, rather than criminal legal aid bill, that felt the brunt of the cuts contained LASPO.

This essay, after examination of the relevant case law, concludes that the Justice Secretary was laboring under a false apprehension. Although most cases brought under the affected areas of law (which include swathes of family, welfare benefits, and immigration law) are unlikely to see parties to the proceedings locked up in Strangeways, it does not follow that they do not involve fundamental rights. Fundamental rights go beyond the rights to life and liberty to include all the rights contained within the ECHR.

The right to free legal assistance is central to effective access to justice, a right guaranteed by Article 6 and that extends to the civil as well as criminal sphere. Free legal advice is also a vital procedural right that makes other rights meaningful, including the rights to private and family life and the right to freedom from inhumane and degrading treatment. Those that may suffer most from lack of representation will surely include those that may have difficulties understanding the processes or making their voices heard, such as children, the elderly, and those with certain physical and mental disabilities. Article 14 will therefore undoubtedly come into play.

Section 10 of LASPO is of course designed to ensure this does not happen. The section 10 safety net frees up some funding to make funding available to those at risk of Convention rights violations. However, the extent and scope of civil legal aid cuts will likely put the government in breach of its obligations under Articles 6, 3, 8, 13 and 14 ECHR, and it is doubtful whether section 10 will prove to be a strong enough safeguard. After all, a funding regime that focuses on exceptions and those able enough to pursue satellite litigation in respect of funding arrangements, aside from being time consuming and costly, will likely fail to reach those that need protection most.

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Summary of essay by Angelique Pouponneau

Writing this essay during the early months of the Bar Professional Training Course my essay takes the form of submissions by counsels. One speech is by counsel acting for the victims of the legal aid cuts and the other is by counsel representing the United Kingdom. I envisioned the speeches being made before the European Court of Human Rights.

Below is a summary of each speech: I appear on behalf of the 653, 659 victims of the legal aid cuts. The UK has obligations under the European Convention of Human Rights which is given effect in the national legal system by virtue of the Human Rights Act 1998. However in light of the cuts to legal aid there is a potential breach of article 6 as the lack of resources would prevent people from effectively bringing or defending a claim. In addition to that if people are prevented from bringing or defending a claim simply because of a lack of wealth there is a breach of article 14, discrimination on the grounds of property. I now focus specifically on legal aid cuts to divorce proceedings which would lead to individuals being deprived of their right to family life. Lastly, will the UK save by cutting legal aid or will it spend that savings on compensating the people who have had their rights violated as a result of the legal aid cuts? I appear on behalf of the United Kingdom and the situation is not as bleak as my learned friend paints it out to be. The model adopted by the UK is in conformity of its obligations under the Convention. It is means tested which ensures the people who are most vulnerable have access to legal aid. Funding continues for alternative dispute resolution mechanisms such as mediation so remedies are still available to individuals. In any event, article 6 is not an absolute right and the public purse is a legitimate restriction to that right. Legal aid funding continues for serious and complex cases and as such those who really need it will have access to it.

The court takes time for consideration.

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Summary of essay by Rosie Eleanor Scott

There is no explicit ECHR obligation on Contracting States to provide legal aid. My approach was to analyse Article 6(1) ECHR and its accompanying jurisprudence to identify situations in which the UK may be obliged to provide legal aid, and to match these situations with potential weak spots in the new system contained in the Legal Aid, Sentencing and Punishment of Offenders Act 2012.

My essay argues that, based on well-established ECtHR case law, there are three limited situations in which a State may be required to provide legal aid, derived from the twin elements of Article 6(1): the right of access to a court, and the right to a fair hearing. The first situation may be characterised as a right to legal aid to ensure effective access to the courts, although clearly not a Convention right sensu stricto; the second can be described as a right to legal aid to guarantee that access to the courts is effective; and the third as where legal aid is necessary to ensure a fair hearing.

The LASPO regime throws up numerous potential scenarios where not only the strict rules and numerous criteria may force the UK into breaching its obligations under Article 6(1) to provide legal aid, but also where the very complexity of the scheme itself may create problems, particularly with the first right ensuring effective access. One key area of challenge is likely to be the Exceptional Cases scheme in s.10 LASPO. This is designed to catch cases where legal aid is either necessary or appropriate, because failure to provide it would risk a breach of Convention rights, but where such cases would otherwise fall through the systems net. Since this scheme is a deliberate attempt to prevent breaches of Convention rights, clearly any failure in this system risks a prima facie breach of ECHR obligations. Since so many categories of cases are now excluded under LASPO, this scheme will be crucial as providing the only chance many litigants have to obtain legal aid.

Legal aid is not available for assisting applications for this Exceptional Case scheme, despite the fact that applying ECHR rights to factual scenarios is complex, and that many unassisted individuals will have serious difficulties in identifying and analysing their legal problems. It is therefore likely that many unaided litigants would fail to identify Convention

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rights breach, would never know that they were eligible for legal aid and fail to litigate. Such situations may well breach the first right to legal aid, to ensure effective access to courts.

Nearly all clinical negligence claims are excluded from LASPO, so these applications for legal aid will need to go through the Exceptional Case scheme. Such cases usually need extensive and expensive preliminary investigation into complex issues of causation, to establish whether there is the potential for a claim at all. Many applicants will therefore lack the means for determining whether they have a viable claim to even make an application for legal aid, thereby creating the risk that their right of effective access to a court is impaired.

Clinical negligence also provides an excellent example of potential for breaching the third legal aid right to a fair hearing. Even if a clinical negligence claimant manages to bring a claim in the first place, refusing legal aid may well entail a fundamental inequality of arms in situations where the doctor is legally represented and the claimant is not. Indeed a legally represented opponent will likely prove a significant disadvantage for many claimants who would previously have been eligible for legal aid and would now be excluded under LASPO.

There is clearly significant potential for the cuts to the legal aid budget enshrined in LASPO to breach Convention obligations to provide effective access to justice. Much will depend on how the key tests within the Act are applied and interpreted, and on the specific factual scenarios of each challenge. To know for certain whether the UK will breach its ECHR obligations, however, we must wait for the challenges that will surely come after 1st April 2013.

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