Something unusual happened in the House of Commons last month, it seems unprompted the government made an amendment to the regulations on legal aid which would benefit access to justice. 

 As the Minister, Sir Oliver Heald, explained to the Delegated Legislation Committee the regulations regarding the merits test for legal aid were subject to a judicial review in July last year. The High Court had found that the requirement for a case to have a 50% or better chance of success to qualify for legal aid was unlawful. This was overturned on appeal (Director of Legal Aid Casework and Lord Chancellor v IS [2016] EWCA Civ 464). In response to the original judgement, which concerned the operation of the exceptional case funding scheme, the Legal Aid Agency (LAA) had adjusted the rules, but the Appeal Court judgement turned the clock back and the LAA advised practitioners that they would only consider cases with a 50% chance of success for funding.

 Now here’s the surprising bit. In his appearance before the committee on 20th October, Heald said that while the government agreed with the judgement of the Court of Appeal, “there have always been certain exceptions to the 50% threshold” and for this reason the Secretary of State for Justice had decided to amend the regulations and “make legal aid funding available for cases where the prospects of success are borderline—that is, very hard to quantify—or less than 50%, but at least 45%, which we call marginal.”

 The government believes that for cases, such as those concerning domestic violence, the amendments to the regulations “will mean that legal aid is available in borderline and marginal cases without having to meet the additional criteria” (as well as for cases involving a breach of the European Convention on Human Rights). The usual merits test rule will apply to most other types of case i.e. the case must usually be of overwhelming importance to the individual or, have a significant public interest to be eligible for legal aid- criteria which will continue to rule out many cases.

Richard Miller, head of legal aid at the Law Society, has described the change in the rules as a "small but welcome development." It will be interesting to assess in a few months time what impact the rule change has had, as while the numbers of cases brought into scope will in all likelihood be very few, they could set important precedents on how the merits test is applied and more importantly assist people who would otherwise have been denied justice. The change in rules could also take some of the political and legal pressure off the government over the criticism that the exceptional case funding scheme is not working as the "safety net" for peoples rights which parliament had intended. 

Steve Hynes,

Director of LAG