Minton Morrill Solicitors, R (On the Application Of) v The Lord Chancellor

Legal aid under the Access to Justice Act 1999 and Legal Aid, Sentencing and Punishment of Offenders Act 2012 does not extend to solicitors’ work preparing applications to the European Court of Human Rights. Such work concerns the autonomous law of the Convention applied by that court, rather than the law of England and Wales. The Convention rights enacted domestically by the Human Rights Act 1998 are domestic statutory rights and are not the international rights applied at Strasbourg. The statutory exception for foreign law relevant to an issue concerning English or Welsh law is directed to foreign-law issues arising in domestic proceedings. It does not cover separate proceedings in Strasbourg after domestic remedies have been exhausted.

The claimant solicitors sought payment for work undertaken on applications to the European Court of Human Rights for two clients. The Legal Aid Agency refused the claims under section 19 of the Access to Justice Act 1999 and section 32 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012.

The claimant sought judicial review, arguing that Strasbourg applications concerned English and Welsh law or, alternatively, foreign law relevant to determining an issue of English or Welsh law. Permission was granted on those statutory-construction grounds. The court rejected both arguments.

1. The claim was dismissed. The Legal Aid Agency was entitled to refuse payment for work on the Strasbourg applications.
2. The Convention rights given domestic effect by the Human Rights Act 1998 are domestic statutory rights. The Act did not incorporate into domestic law the autonomous international law of the Convention. References by judges to the rights being incorporated into domestic law were treated as convenient shorthand for the enactment of domestic rights expressed in similar terms. The domestic rights need not have identical content to the rights applied by the Strasbourg court.
3. Solicitors preparing an application to the European Court of Human Rights provide services relating to the autonomous law of the Convention applied by that court, not services relating to the law of England and Wales. The distinct nature of Convention law was not altered by the different treatment of directly effective European Union law under the European Communities Act 1972.
4. The foreign-law exception in section 19 of the Access to Justice Act 1999 and section 32 of Legal Aid, Sentencing and Punishment of Offenders Act 2012 was sufficiently ambiguous to permit reference to Hansard under the Pepper v Hart principles. The ministerial statements showed that the provision was intended to cover foreign-law evidence relevant to proceedings in an English or Welsh forum.
5. Proceedings before the Strasbourg court are separate international proceedings arising after domestic remedies have ended. A Strasbourg decision cannot determine the outcome of the concluded domestic proceedings for which funding is sought. The Convention law applied at Strasbourg therefore is not relevant, within the statutory wording, for determining an issue relating to the law of England and Wales.

This was a first-instance judicial review. Andrews J granted permission on two grounds; Blake J had previously rejected an incompatibility ground at an oral hearing. The present court dismissed the claim.