This time last year I wrote about moral hazard at the troubled interface between pro bono and legal aid: the risk that in providing more and better pro bono services to individuals we undermine the case for something far more essential to ‘access to justice’ (namely, a properly funded system of civil legal aid). In the policy sphere, this tension is insoluble and global: I have written about some practical steps to manage this risk. The same trap is also set in our domestic law, through the structure of the Exceptional Case Funding provision in the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO). This year I’d like to propose a way to disable the ECF trap, to remove a small but significant obstacle to the development of domestic pro bono for individuals.
Within the Council of Europe and the EU, because of Article 6 of the European Convention on Human Rights and Article 47 of the EU Charter of Fundamental Rights respectively, there is in principle a legally defensible core minimum when it comes to state-funded legal aid. This contrasts with the position in jurisdictions such as the US and Australia where – with a few exceptions – receiving civil legal aid is a privilege and not a legal right in itself. However, the extent of this right to civil legal aid is not clearly defined and is influenced not just by other factors within the justice system (such as the complexity of the relevant substantive law and procedure) but also arguably by the availability of pro bono help itself.
The third paragraph of Article 47 of the EU Charter reads: ‘Legal aid shall be made available to those who lack sufficient resources in so far as such aid is necessary to ensure effective access to justice’ (my emphasis). This broadly reflects the approach the Strasbourg Court has taken on Article 6 cases. Whether legal aid is ‘necessary’ in any particular case therefore turns on the facts – a range of factors will be taken into account. In the words of the Strasbourg Court:
‘The question whether or not the provision of legal aid is necessary for a fair hearing must be determined on the basis of the particular facts and circumstances of each case and will depend on a variety of factors, including, for example, the importance of what is at stake for the applicant in the proceedings, the complexity of the relevant law and procedure and the applicant’s capacity to represent him- or herself effectively.’
Steel and Morris v UK (2005) 41 EHRR 22, at 61
An additional potential factor should be at the forefront of the mind of anyone contemplating pro bono or charitable contribution to the access-to-justice cause: the provision or even perceived availability of pro bono help (whether from a charity or a firm) could on the face of it be relied on by a state to argue that legal aid is not ‘necessary’ for the purposes of Article 47 of the Charter and Article 6 of the Convention, since effective access to justice could be assured through other means. Such were the arguments put by the Government in the case of ‘B’, where the potential availability of free legal help, given on a voluntary basis, in this case by Islington Law Centre, was used as one of the reasons for refusing legal aid (see R (Gudanaviciene and others)  EWCA Civ 1622, at 166).
Whether or not that argument would have traction in the Strasbourg or Luxembourg courts is debatable. But the perceived risk of scoring an access-to-justice ‘own goal’ is meanwhile having a chilling effect on the establishment of new pro bono projects in areas now removed from the general scope of legal aid.
This type of trap will be familiar to those with experience of giving charitable help to the destitute. Such safety nets as the state provides (such as, for example, the current asylum support system), usually require an applicant to prove his or her destitution to qualify for state-funded help. The rationale for this is obvious and hard to argue with: to target scarce resources at only those who need it. But it has the unfortunate unintended consequence of placing charities, religious groups and well-meaning individuals – who actually want to use their limited resources to give ad hoc help to someone presenting as destitute or street homeless – in the unenviable position of having to consider whether to stay their humanitarian instinct or risk undermining the case for more reliable publicly funded support for the very person they are trying to help.
In the case of R (Adam, Limbuela & Tesema) v Secretary of State for the Home Department  UKHL 66, for example, the Government argued that the basic safety net provisions contained in section 55(5)(a) of the Nationality, Immigration and Asylum Act 2002 should not be available to people who might instead be able to rely on voluntary support from a friend or a charity (see Lord Hope’s judgment, at paragraphs 35-36). And, indeed, in asylum support cases it is now routinely the case that a burden of proof is in practice placed on an applicant to show that he or she is not able to rely on such voluntary support – for example, applicants in proving their destitution are routinely asked to provide evidence that they had unsuccessfully approached friends and local charities for support. So anyone moved to offer such support on an ad hoc basis should in turn be considering whether in voluntarily offering to help someone they are in fact jeopardising that vulnerable person’s chance of more reliable ongoing state-funded support.
A system more corrosive of the natural impulse to help a fellow human in need is hard to imagine.
Part of a possible solution to this problem of ‘moral hazard’ was introduced in Germany in 2014. There, the Beratungshilfegesetz (literally, ‘advice help law’) provides for publicly funded legal advice. One of the conditions to be satisfied under this law is that ‘nicht andere Möglichkeiten für eine Hilfe zur Verfügung stehen, deren Inanspruchnahme dem Rechtsuchenden zuzumuten ist’ (‘no alternative options for assistance are available which it would be reasonable to expect the litigant to use’) – section 1(1)(ii). This provision was amended in January 2014 specifically to clarify that ‘Die Möglichkeit, sich durch einen Rechtsanwalt unentgeltlich oder gegen Vereinbarung eines Erfolgshonorars beraten oder vertreten zu lassen, ist keine andere Möglichkeit der Hilfe im Sinne des Absatzes 1 Nummer 2’ (‘the ability to consult a lawyer for free or on a CFA cannot be an “alternative option for assistance” under section 1(1)(ii)).
The perverse disincentive for would-be providers of charitable or pro bono assistance in the UK could be removed (at least in law) by the introduction of an equivalent provision within LASPO, clarifying that the availability or potential availability of free legal services on a voluntary basis will be disregarded when considering whether the provision of services is ‘necessary’ or ‘appropriate’ under section 10(3) LASPO.
This would not dilute the importance of trying to refer eligible cases for exceptional case funding, but it would remove some of the risk of doing unintentional harm at the systemic level. It could be achieved through the proposed new subsection (7), which could be introduced through a suitable Bill (see below). This would put into statute the principle that pro bono is not a substitute for legal aid, and remove a perverse (and surely unintended) disincentive which is acting as an obstacle for those looking to do more and better pro bono for individuals. In the absence of such a clarification, any well-meaning voluntary effort to improve access to justice – from private practice or in-house pro bono, or from a charity – must consider the risk that in helping an individual, inadvertent damage be done to the very cause we are all trying to promote: access to justice.
Proposed new subsection (7):
10 Exceptional cases
(7) For the purposes of subsection (3) the availability or possible availability of voluntary free legal assistance, whether from a charity or from a private practice or in-house lawyer, shall not be a relevant consideration.
Some of this article is taken from my forthcoming chapter in ‘Access to Justice: beyond the policies and politics of austerity’ ed. Palmer et al (Hart, 2016)
- Disabling the trap: pro bono and exceptional case funding - 29th October 2015
- Pro bono and moral hazard: first, do no harm - 29th October 2014
- Pro bono – filling the gap? - 19th November 2013