Archive for September 2014
It is accepted that the courts have power to declare a statutory instrument invalid where it has been made outside the powers (ultra vires) provided in the Act of Parliament. In practice this happens rarely – not least because officials usually ensure that they do not act beyond their powers.
However, in July 2014, in The Queen on the Application of the Public Law Project -v- The Secretary of State for Justice and The Office of the Children’s Commissioner  EWHC 2365 (Admin), the Administrative Court did find that a regulation had been made ultra vires.
The issue arose from the desire of the present Government to cut public expenditure on legal aid. Arguing that what money was available should go to those most in need, the Government proposed that there should be a ‘residence’ test for civil legal aid. This would mean that, with some exceptions, 12 months continuous residence in the UK would be required before someone could be eligible for public legal aid funding. The rule was set out in a Draft Regulation, that was due to come into force in August 2014.
The problem arose because the Legal Aid, Sentencing and Punishment of Offenders Act 2012, in Part 1 of Schedule 1, list types of case that remained potentially covered by the civil legal aid scheme. Funding remains in place because the listed cases are regarded as having the greatest need for legal aid. In short, the Act limited entitlement according to criteria based on need and not on any other basis.
It was argued that, by seeking to prevent those coming new to the UK from getting legal aid, their needs might be just as urgent as those affecting people already here, but they would be denied legal aid because they did not meet the residence test. It was argued that the attempt to introduce this test by regulation was outside the scope of the Act. It was also argued that the effect of the regulation would, if upheld, be to discriminate unlawfully against those recently come from abroad. The Division Court agreed with these arguments and declared the Draft Regulation of no effect.
The Government announced that it would appeal the decision, but in the meantime, they would not go ahead with implementation of the draft Regulation.
The text of the decision is at http://www.judiciary.gov.uk/judgments/the-queen-on-the-application-of-the-public-law-project-v-the-secretary-of-state-for-justice-and-the-office-of-the-childrens-commissioner/
The Government response is at https://www.justice.gov.uk/legal-aid/newslatest-updates/civil-news/update-on-civil-legal-aid-residence-test
The Public Defender Service (PDS) was established in 2001 to offer an alternative to solicitors in private criminal legal aid practice. The service now operates out of 4 centres: Cheltenham Darlington, Pontypridd and Swansea. These offices operate as solicitors but the staff are employed by the Legal Aid Agency, rather than paid fees by the Agency.
In 2014, the scope of the PDS was expanded by the creation of PDS Advocates, described as “a team of 25 barristers and higher courts advocates including seven Queens Counsel with experience at every level of the criminal justice system [providing]… independent, high quality, professional advice and representation to accused persons throughout England and Wales.
“Amongst [the] team, [are] advocates who specialise in murder, fraud, historic and serious sexual offences, terrorism and Very High Cost Criminal Cases.
[The team] can be instructed to carry out work by any solicitors looking for representation for their clients in the Higher Courts of England and Wales [and] are able to operate nationally.”
This development occurred at a time when barristers were in significant conflict with the Ministry of Justice over rates of pay for criminal legal aid work and appears to have been a response to barristers refusing to take on some serious criminal trials.
For further details of the PDS go to http://publicdefenderservice.org.uk/
One feature of this blog are the podcasts I have made with a variety of leading legal actors. I will continue to add to these from time to time.
But, given the rapidly changing environment within which legal services are being provided, I thought it would be interesting to hear from more recently qualified lawyers about what type of work they are doing, how they are doing it, how it is being paid for.
I would be especially interested in talking with people offering legal services in innovative ways, who may be able to share ideas about the development of legal services in ways that will interest current law students and those coming new into the legal world.
If you would like to volunteer please contact me through the ‘leave a comment’ button just below the heading to this blog item. Your comment will not be published unless you want this to happen.