The Howard League for Penal Reform & Anor, R (On the Application Of) v The Lord Chancellor

The removal of criminal legal aid for prison-law matters is unlawful only if it creates a proven and unacceptable risk of procedural unfairness inherent in the system, or unlawfully prevents access to a court. The court must consider the interests at stake, the benefits of additional safeguards and the administrative costs, while allowing proper weight to political and financial imperatives. The common-law right of access to a court does not carry a general right to publicly funded legal assistance. Article 6 ECHR does not ordinarily require legal aid for proceedings before bodies such as the Parole Board or prison disciplinary tribunals. Where alternative complaints mechanisms, inquisitorial procedures and judicial review remain available, removal of funding will not necessarily create an unlawful risk of unfairness.

The Howard League for Penal Reform and the Prisoners’ Advice Service sought permission to challenge amendments to the criminal legal aid scheme for prison law introduced by the Criminal Legal Aid (General) (Amendment) Regulations 2013. They argued that consultation had been inadequate and that removing funding for specified prison-law matters created unacceptable risks of unfair decision-making, interference with common-law and Article 6 access to justice, discrimination, irrationality and breach of the Lord Chancellor’s constitutional obligations. The applications concerned matters including Parole Board reviews, categorisation, segregation, mother and baby units, resettlement and disciplinary proceedings. The central issues were whether the consultation was legally deficient and whether the amended scheme was unlawful on any substantive public-law ground.

1. Permission refused. The claims were not arguable on the evidence and material before the court.
2. The consultation challenge failed. The April 2013 consultation, read as a whole, proposed restricting funding to matters engaging Article 5.4 ECHR, criminal charges for Article 6 purposes, or the R v Secretary of State for the Home Department, ex p Tarrant criteria. Pre-tariff reviews and return-to-open-condition cases did not concern ongoing detention in the relevant sense. Even if the later clarification constituted a change, it was limited and did not cross the threshold of a fundamentally different proposal. The claimants also had an opportunity to make representations before the regulations were made, and no useful remedy would have followed.
3. Applying the approach in R (Refugee Legal Centre) v Secretary of State for the Home Department, the relevant question was whether the scheme created a proven and unacceptable risk of procedural unfairness inherent in the system itself. The court considered the individual interests, the benefits of further safeguards and the administrative costs. Alternative safeguards included the strengthened internal complaints system, the inquisitorial procedure of the Parole Board, the Prisons and Probation Ombudsman and continuing civil legal aid for judicial review. The high threshold was not met.
4. The access-to-justice challenge also failed. The common-law right of access to a court does not imply a general right to legal aid, and Article 6 ECHR requires legal aid only in exceptional cases. The challenged matters principally concerned proceedings before bodies rather than access to the courts, while judicial review remained available.
5. The discrimination, irrationality and ultra vires grounds were unarguable. The regulations had been debated in Parliament, the Lord Chancellor enjoyed a substantial margin in allocating public resources, and the court could not substitute its assessment for political judgments about cost and public confidence. The constitutional argument concerning the rule of law did not establish unlawfulness.

First-instance applications for permission to apply for judicial review. No prior appellate decision is stated in the judgment.