R Ian Stewart Brady v The Lord Chancellor and Another Merseyside NHS Foundation Trust and Another (Interested Parties)

In this case, Ian Stewart Brady ("the Claimant") applies for permission to bring a claim for judicial review of two decisions relating to his legal representation in proceedings ("the Proceedings") before the First-Tier Tribunal (Health, Education and Social Care Chamber) Mental Health ("the Tribunal"). The Claimant wishes to be represented at those proceedings by a solicitor, Mr Robin Makin, and is seeking public funding for that representation.

The decisions challenged are:

(1) The decision of the Lord Chancellor dated 3 November 2016, the First Defendant, effectively not to make available or facilitate the public funding of Mr Makin as the Claimant's solicitor in the Proceedings.

(2) The decision of the Tribunal, the Second Defendant, dated 4 October 2016 declining to appoint Mr Makin as the Claimant's legal representative under Rule 11(7)(a) of the Tribunal Procedure (First-Tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008 ("the Rules").

On 25 January 2017, on consideration on the papers, Ouseley J refused permission for the claim against the Tribunal. That application has subsequently been renewed. As regards the claim against the Lord Chancellor, he adjourned the application for permission to an oral hearing.

I have now heard oral argument in respect of the application for permission against both defendants and this is the Court's decision on permission.

The relevant legal framework

To set the facts in their context, I refer to the relevant legal framework at the outset.

Mental Health Act 1983

Under section 71(2) of the Mental Health Act 1983, the Secretary of State must refer to the appropriate tribunal the case of any restricted patient detained in a hospital whose case has not been considered by such a tribunal within the last three years.

Legal Aid Sentencing and Punishment of Offenders Act 2012 ("LASPO")

The statutory framework for the provision of legal aid is at the heart of this application and its provisions are of central importance.

Part 1 of LASPO is entitled "Legal Aid". Section 1 is headed "The Lord Chancellor's functions" and set outs both those functions and the definition of "legal aid". It provides:

i. "(1) The Lord Chancellor must secure that legal aid is made available in accordance with this Part.

(2) In this Part 'legal aid' means—

(a) civil legal services required to be made available under section 9 or 10 or paragraph 3 of Schedule 3 (civil legal aid), and

(b) services consisting of advice, assistance and representation required to be made available under section 13, 15 or 16 or paragraph 4 or 5 of Schedule 3 (criminal legal aid).

(3) The Lord Chancellor may secure the provision of—

(a) general information about the law and the legal system, and

(b) information about the availability of advice about, and assistance in connection with, the law and the legal system.

(4) The Lord Chancellor may do anything which is calculated to facilitate, or is incidental or conducive to, the carrying out of the Lord Chancellor's functions under this Part."

Section 2 is headed "Arrangements" and provides as follows:

i. "(1) The Lord Chancellor may make such arrangements as the Lord Chancellor considers appropriate for the purposes of carrying out the Lord Chancellor's functions under this Part.

(2) The Lord Chancellor may, in particular, make arrangements by—

(a) making grants or loans to enable persons to provide services or facilitate the provision of services,

(b) making grants or loans to individuals to enable them to obtain services, and

(c) establishing and maintaining a body to provide services or facilitate the provision of services.

ii. …

iii. (5) The Lord Chancellor may make different arrangements, in particular, in relation to—

(a) different areas in England and Wales,

(b) different descriptions of case, and

(c) different classes of person."

Arrangements entered into by the Lord Chancellor under section 2(1) have taken the form of contracts for the provision of legal aid services between the Lord Chancellor and approved providers.

Section 4 is headed "Director of Legal Aid Casework" ("the Director"). It provides as follows:

i. "(1) The Lord Chancellor must designate a civil servant as the Director of Legal Aid Casework ('the Director').

ii. […]

(2) The Director must—

(a) comply with directions given by the Lord Chancellor about the carrying out of the Director's functions under this Part, and

(b) have regard to guidance given by the Lord Chancellor about the carrying out of those functions.

(3) But the Lord Chancellor—

(a) must not give a direction or guidance about the carrying out of those functions in relation to an individual case, and

(b) must ensure that the Director acts independently of the Lord Chancellor when applying a direction or guidance under subsection (3) in relation to an individual case."

Section 5 deals with "Delegation". Section 5(5) provides as follows:

i. "(5) A direction given by the Lord Chancellor under section 4 about the carrying out of the Director's functions may, in particular, require the Director—

(a) to authorise, or not to authorise, a person to carry out a function specified in the direction, or

(b) to authorise, or not to authorise, a person specified, or of a description specified, in the direction to carry out such a function."

Section 6 deals with authorisations given pursuant to delegation made under section 5.

Sections 8 to 12 deal with civil legal aid. Civil legal services are defined in section 8. Section 9, which is important in this case, provides as follows:

i. "(1) Civil legal services are to be available to an individual under this Part if—

(a) they are civil legal services described in Part 1 of Schedule 1, and

(b) the Director has determined that the individual qualifies for the services in accordance with this Part (and has not withdrawn the determination)."

Section 12 makes further provision in relation to determinations by the Director, under section 9(1)(b) (and also under section 10). Section 12 provides as follows:

i. "(1) A determination by the Director that an individual qualifies under this Part for civil legal services must specify—

(a) the type of services, and

(b) the matters in relation to which the services are to be available.

(2) Regulations may make provision about the making and withdrawal of determinations under sections 9 and 10.

(3) Regulations under subsection (2) may, in particular, include—

i. […]

ii. (e) provision about conditions which must be satisfied by an applicant before a determination is made, […]"

Pursuant to section 12(2) to (6), the Lord Chancellor has made the Civil Legal Aid (Procedure) Regulations 2012 ("the Procedure Regulations") which make detailed provision for the making and withdrawal of determinations that an individual qualifies for civil legal services under sections 9 and 10. Amongst other things, those regulations make provision for what are known as "individual case contracts" — namely contracts for the provision of legal aid services in respect of an individual case. Whilst such contracts are concluded between the Lord Chancellor and the provider under section 2(1), the decision as to whether such an individual contract should be entered into is for the Director to make. Under the Procedure Regulations, the Director has this power in respect of certain kinds of legal services, but not in respect of others. In particular, there is no power to direct such an individual case contract in the case of legal representation for proceedings before the Tribunal under the Mental Health Act 1983: see, in this regard, Regulations 2, 21(2)(e)(i), 23(1) and (1A) and 31(5).

The Tribunal Procedure (First Tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008

Rule 11 of the Rules provides as follows:

i. "(1) A party may appoint a representative (whether a legal representative or not) to represent that party in the proceedings.

ii. […]

iii. (7) In a mental health case, if the patient has not appointed a representative, the Tribunal may appoint a legal representative for the patient where—

(a) the patient has stated that they do not wish to conduct their own case or that they wish to be represented; or

(b) the patient lacks the capacity to appoint a representative but the Tribunal believes that it is in the patient's best interests for the patient to be represented."

ECHRArticles 5(4), 6 and 8

Article 5(4)ECHR provides that everyone who is deprived of liberty by arrest or detention is entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.

Article 6ECHR provides for the...