A ‘merits criteria’ regulation that would have denied thousands of people legal aid for judicial review, homelessness and habeas corpus cases is to be amended, following debate in the House of Lords, writes Elizabeth Davidson.
Peers passed the Civil Legal Aid (Merits Criteria) Regulations 2012 on Monday, 3 December – by convention, the House of Lords can only reject or pass, not amend, secondary legislation. However, Justice minister, Lord McNally gave a promise to the House that the cause of concern – Regulation 53(b) – would be addressed by an amendment to be made by April 2013.
Regulation 53(b) states that the director of legal aid casework must be satisfied that the applicant has ‘exhausted all administrative appeals and other alternative procedures’ for challenge before bringing a public law claim’ – crucially removing any discretion from the director.
According to the Legal Aid Practitioners Group (LAPG), this would have forced people in urgent need of access to a judge to go through complex complaints procedures first and would delay their case for ‘months, if not years’.
Proposing a ‘Regret’ Motion, Lord Pannick, said ‘the unhappy effect of Regulation 53(b) will be that legal aid will become unavailable in practice for judicial review and other public law cases where there are other less effective and slower procedures available’. However, he withdrew this proposal following Lord McNally’s promise to amend.
A ‘Regret’ Motion allows the Regulation to pass, but with the Lords’ ‘regret’, which can be useful if the Regulation is subsequently judicially reviewed.
Lord McNally told the House that the government would bring forward amendments to ‘introduce discretion into Regulation 53(b) so that the director of legal aid casework will have the express power to grant legal aid for public law claims, even if the alternative routes have not been exhausted, if he none the less considers that such an appeal or procedure would not be effective in providing the remedy that the individual requires.
‘This would clearly address the situations that are causing noble Lords concern. It would, for example, put beyond doubt that legal aid for judicial review would be available where the claimant required urgent interim relief and this could not be provided in any other way.’
Carol Storer, director, Legal Aid Practitioners Group (LAPG) said: ‘We are very pleased as we put a lot of work into contacting Parliamentarians, writing briefing notes and talking to people, and there was a high quality of discussion.
‘We thought that, on the wording as it was, it would be virtually impossible for someone to obtain legal aid and to bring a judicial review.’
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