Pro bono and moral hazard: first, do no harm

plasters (section)National pro bono week is again upon us (3-7 November 2014); the Ministry of Justice (MoJ) announces new funding to help litigants in person and PILnet’s European Pro Bono Forum is coming to London for the first time. A spotlight is focusing on England and Wales and on the sometimes troubled relationship between our legal aid system and our pro bono work for individuals.

As we all know and recite, pro bono should never be – or be seen to be – any kind of substitute for a properly funded legal aid system. It is vital we do not set a moral hazard for government in creating the misleading impression that pro bono can fill a meaningful part of the access-to-justice gap caused by legal aid cuts. And, as I have written here previously, the pro bono sector should gather data to strengthen the case for future investment in legal aid.

These points are now not just relevant to political and policy debate. They are also live issues in front of our courts as the legal ramifications of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) and its implementation play out. Unless we proceed carefully, our efforts to help individuals affected by legal aids cuts – however well-intentioned – may lead to a tragic access-to-justice own goal.

As our European and US colleagues descend on London for the PILnet conference, now is the time to highlight these risks, and to show how they can be managed, to ensure pro bono does not inadvertently contribute to the policy case for new or further cuts to civil legal aid, in the UK or across the continent, and equally to ensure we do not undermine the defence of legal aid in our courts.

Consider, for example, Exceptional Case Funding (ECF), the ambit of which is this week before our Court of Appeal in four linked cases (Gudaniviciene & Ors v Director of Legal Aid Casework & Anor [2014] EWHC 1840 (Admin)). ECF is a mechanism established by s.10 LASPO to ensure that, even in areas generally removed from scope, legal aid will remain available for those in most need. In addition to passing merits and financial eligibility tests, to qualify for ECF you have to show that failure to grant legal aid would (or might) lead to a breach of your EU or ECHR rights – s.10(3) LASPO. Such rights include, notably, those under article 47 of the EU Charter of Fundamental Freedoms, which states that ‘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’.

This is a complex area. Article 47 is generally considered to broadly mirror the requirements of article 6 ECHR; it may be relevant whether the relevant underlying legal problem is within the ambit of EU law, or whether ‘civil rights or obligations’ as understood by the Strasbourg court are engaged; and the complexity of the legal and factual case in hand will in any event be highly relevant. But it is immediately clear that whether or not legal aid can be considered “necessary” to ensure effective access to justice is central.

It is easy to see how this equation can be altered if it can be asserted that legal aid in a particular case is not necessary because pro bono help might be available instead. This is not fanciful scaremongering; this argument was made by the Legal Aid Agency in one of the cases before the Court of Appeal this week as a justification for the refusal of legal aid.

In addition to the public law challenges to the ECF mechanism, it is also worth noting parallel developments in the family courts.

In one recent case, Sir James Mumby noted that, where legal aid has been refused yet the court considers attendance of an expert and the provision of legal representation to be “necessary” for a fair trial, it would be within the court’s own power (indeed may be the court’s duty) to order Her Majesty’s Courts and Tribunal Service (“HMCTS” – another part of the MoJ) to pay for it to be provided (Q v Q 2014 EWFC 31 at 56-57 and 78-79).

Contrast another recent case in which Judge Hallam was asked to deal with the welfare of four children, the father being legally represented but the mother having been refused ECF. The firm acting for the mother, instead of challenging the ECF refusal, sent a paralegal along to help her in court – on a pro bono basis. In the end, a settlement was reached, so the case was resolved without the need for a full hearing. But Judge Hallam issued a judgment nonetheless, to register his concern about the legal aid position and to note that, had the case gone to a fully contested hearing without the help of the paralegal, the court ‘would have been put in an impossible position’ (Re H [2014] EWFC B127).

These two lines of cases each show, in a different context: first, that arguments over the ambit of publicly funded legal assistance are live in our courts; and, secondly, that these arguments can be directly affected by the provision of pro bono help, which risks creating the misleading impression that publicly funded expert legal help is not ‘necessary to ensure’ effective access to justice or a fair trial.

Faced with a case which at first glance falls outside the scope of legal aid, but could arguably be eligible for ECF, the temptation to give pro bono help is great. The ECF application process is complex and time-consuming. For a legal aid practitioner, no public funding is available to pay for time spent on the application (although it can be claimed in retrospect if the application is successful). Commercial law firms, often operating in these areas through a pro bono clinic, may not even be aware of the possibility of ECF.

It is worth noting here that while the MoJ predicted about 3,500 cases would be granted ECF each year, in the first year of operation the actual figure was 15. In light of these odds, the spirit of any lawyer (who will naturally be seeking a solution for his or her vulnerable client) would surely be sapped at the prospect of grappling with the ECF process. After a negative ECF decision, and unsuccessful internal Legal Aid Agency appeals, the idea of starting judicial review proceedings over the refusal to grant legal aid may seem absurd (although such challenges do themselves qualify for legal aid and the Public Law Project stands ready to help with applications, appeals and even judicial review challenges). But each time pro bono help is provided in such cases instead we inadvertently tip the scales slightly by making it that bit harder for courts to find that legal aid is ‘necessary’ to provide effective access to justice to others in that same situation.

This is not an argument to do nothing in the face of the current access to justice crisis in England and Wales. It is an argument that where new pro bono projects are developed to help individuals we must ensure that:

  1. they are set up in close consultation with people who understand in detail the potential interactions with legal aid;
  2. external evaluation is built in from the outset, to ensure wherever possible that data are collected to support the case for future investment in legal aid; and
  3. training and processes are established to make sure pro bono lawyers can and do identify cases which could potentially be eligible for ECF – and then refer them on to appropriate legal aid practitioners, with an offer of help with the application process.

In National pro bono week, perhaps we should borrow a Latin mantra from colleagues in another profession: primum non nocere (first, do no harm).




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