Brady, R (on the application of) v The Lord Chancellor & Anor

The Lord Chancellor’s powers under Part 1 of Legal Aid, Sentencing and Punishment of Offenders Act 2012 must be exercised within the statutory legal-aid scheme. Sections 2 and 4 do not permit exceptional funding, guidance or delegation which bypasses the scheme or transfers the Director’s statutory function to a tribunal. The Convention does not confer an automatic right, in civil or mental-health detention proceedings, to publicly funded representation by a lawyer of the patient’s choice. A tribunal’s power to appoint a representative under rule 11(7)(a) does not itself create a power or obligation to provide funding.

The claimant sought permission to judicially review decisions concerning his representation at a three-yearly mental-health detention review before the First-tier Tribunal. He wished to participate only if represented by his long-standing solicitor, Mr Makin, but the Legal Aid Agency had refused funding because he was not an approved provider.

The Lord Chancellor declined to provide funding, make a different arrangement, or give guidance facilitating it. The Tribunal declined formally to appoint Mr Makin under rule 11(7)(a), while indicating that it would recognise him under rule 11(1) if funding became available. The issues were whether the claims under Legal Aid, Sentencing and Punishment of Offenders Act 2012 or the ECHR were arguable, and whether the Tribunal’s decision was arguably unlawful.

Permission to apply for judicial review was refused against both the Lord Chancellor and the Tribunal. The claims had no realistic prospect of success.

1. LASPO sections 2 and 1. The powers in section 2, including grants, loans and different arrangements, are available only for carrying out the Lord Chancellor’s functions under Part 1. “Legal aid” is defined by section 1(2), and section 9 makes civil legal services available only where the Director has determined that the individual qualifies. Since the Director had refused funding and that decision and the Procedure Regulations were not challenged, the proposed funding was not “legal aid”. The Lord Chancellor therefore had no power under section 2, including section 1(4), to fund it outside the statutory scheme.
2. Sections 4 and 5. Directions or guidance under section 4 must concern the Director’s functions as defined by LASPO and the regulations. They cannot require a determination outside the detailed scheme, bypass the Procedure Regulations, or transfer the funding decision to the Tribunal. The related delegation power in section 5(5) could not be used for that purpose.
3. ECHR. Article 6 does not confer an absolute right to publicly funded representation in civil proceedings. Article 6(3)(c)’s qualified criminal-lawyer-of-choice protection could not be extended to these proceedings through Article 5(4). Megyeri v Germany (1993) 15 EHRR 584 recognised legal assistance in relevant detention proceedings but did not establish a right to publicly funded representation by a lawyer of choice.
4. Tribunal claim. The Tribunal had no power to grant funding. Its failure to appoint Mr Makin under rule 11(7)(a) could not advance the funding claim, and the asserted Convention right did not supply the missing legal basis.

Permission to appeal was also refused. The Tribunal was awarded its acknowledgement-of-service costs in principle, with the amount to be determined following written submissions.

First-instance application for permission to bring judicial review proceedings. Permission had previously been refused on the papers by Ouseley J as against the Tribunal; the renewed application was heard orally by Morris J. Permission was refused against both defendants.