No breach of UNISON duty by Lord Chancellor in immigration legal aid challenge

13/01/22

The High Court has this morning delivered its judgment in R (Detention Action) v Lord Chancellor, in which it accepted that the Lord Chancellor had not acted unlawfully in his operation of the Detained Duty Advice Scheme (“DDAS”), a publicly funded legal service provided to those in immigration detention centres.

The DDAS provides 30 minutes of free, initial, legal advice, without means or merits testing. Advice is provided by independent law firms and immigration advisers, pursuant to contracts with the Lord Chancellor. Those contracts require providers to offer initial advice and, where appropriate, take the individual on as a client if further assistance is needed (and the criteria for public funding are met). Those legal providers are then paid by the Legal Aid Agency (“LAA”), which manages the day to day operations of the DDAS in co-operation with the Home Office.

The Claimant, Detention Action, challenged the Lord Chancellor’s operation of the DDAS as being unlawful on the basis that the LAA had taken insufficient steps to monitor the operation of the scheme and the quality of advice being given to detainees, for example in relation to bail. The Claimant relied on statistical and qualitative evidence, as well as challenging the use of contractual oversight mechanisms by the LAA. The Lord Chancellor’s evidence was that there was adequate oversight and enforcement, particularly in light of the various difficulties experienced by legal aid providers in the Covid-19 pandemic.

The Claimant’s grounds of review alleged that the operation of the scheme was in breach of the Lord Chancellor’s statutory duties and his duties as to access to justice as set out in R (Unison) v Lord Chancellor [2017] UKSC 51 and recently clarified in R (A) v SSHD [2021] UKSC 37. The Claimant also contended that the decision to renew the contracts of legal services providers on the DDAS was Tameside irrational (under Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014).

The challenge to the DDAS was dismissed on all grounds by the High Court (Mr Justice Calver). In relation to the Unison duty, Calver J held that there was a difference between: (i) the present case which involved the allegedly inadequate monitoring of a legal aid scheme, and (ii) cases where a particular measure directly impedes access to the court (such as the imposition of fees in Unison). Calver J also found that, even if inadequate monitoring could be an impediment to access to justice, in the present case that threshold was not met. The Claimant’s statistical and other evidence did not demonstrate that there was a “real risk” of an impediment to access to justice in practice. Rather, the level of competence and capability of providers was adequately monitored in accordance with the system that had been set up, and the advisers were already subject to regulation by the Solicitors Regulation Authority or the Office of the Immigration Services Commissioner.

The claim was accordingly dismissed.

The Judgment is here