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This important judicial review challenge deals with the question of whether you can get domestic legal aid for applications to the European Court of Human Rights.

The Claimant firm of solicitors sought judicial review of two decisions to refuse claims for legal work done to assist with applications to the European Court of Human Rights (the “ECtHR”).  These had been refused on the grounds that funding for such applications was excluded by s.19 of the Access to Justice Act 1999, and its successor provision, s.32 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012. The question before the Court was the correct interpretation of these sections, which state that funding cannot be provided for services “relating to any law other than that of England and Wales, unless any such law is relevant for determining any issue relating to the law of England and Wales”.

Mr Justice Kerr agreed with the Lord Chancellor that work done to prepare applications to the ECtHR related to a “law other than that of England and Wales”. Rather, such work related to the “autonomous law of the Convention applied by the ECtHR”. The Claimant had argued that the Human Rights Act 1998 ( the “HRA”) incorporated (parts of) the European Convention on Human Rights (the “Convention”) into domestic law, and that therefore applications to the ECtHR related to the law of England and Wales. The Court rejected this argument. References by senior judges to the HRA “incorporating” Convention rights into domestic law was “no more than a convenient shorthand” to describe the effect of the HRA, which was to enact provisions in identical terms to the Convention, but which may be differently interpreted. The HRA did not directly give force of law to the Convention in England and Wales.

The Court then considered whether work on applications to the ECtHR could be said nevertheless to be “relevant for determining any issue relating to the Law of England and Wales”. The Court considered that, on its face, the more natural reading of this “wide” statutory language was that it did encompass such work, given that “domestic human rights law is inspired, shaped and influenced by” the decisions of the ECtHR. However, the Lord Chancellor contended that the provision was ambiguous, and that the Parliamentary history of this part of the provision demonstrated that its intended purpose was to allow funding for issues of foreign law arising in domestic proceedings. The Court agreed that this was “one of those relatively rare cases where the statements of the minister responsible for promoting the legislation in Parliament conclusively resolve an ambiguity as to its true meaning”, such that the rule in Pepper v Hart was satisfied. The Court therefore agreed with the Lord Chancellor that work on applications to the ECtHR were excluded by the provision.

The claim was therefore dismissed.

David Lowe acted for the Lord Chancellor.

Clerks

Staff