Michelle Waite

Hodgson Law Scholarships

Hodgson Law Scholarships 2018 © Copyright

Michelle Waite PhD

We are delighted to be able to announce that Michelle Waite has successfully completed her PhD on the effects of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 on access to justice.

The Legal Aid, Sentencing and Punishment of Offenders Act 2012 (‘LASPO’) radically scaled back the provision of civil legal aid in England and Wales from 1 April 2013 onwards. LASPO s.10 provides for an Exceptional Case Funding (‘ECF’) scheme so that where an absence of legal aid would lead, or risk leading, to a breach of human rights funding must be granted. The central question that Michelle’s research sought to answer is can the UK rely upon the ECF scheme in order to fulfil its obligations to provide legal aid arising from the European Convention on Human Rights and EU law?

Michelle’s timely and incisive analysis considers the scheme as it is drawn and how it is operated. She combined a black letter legal analysis and a qualitative empirical inquiry. The latter drew on data from a sample of ECF applications, semi-structured interviews with legal practitioners and ECF decision makers at the Legal Aid Agency, as well as evidence submitted in the case of IS  and to the Bach Commission on Access to Justice.

Her research reveals that the ECF scheme takes a disproportionately restrictive approach to the protection and realisation of human rights. Whilst in law the responsibility for ensuring that fundamental rights are protected rests with the state, the ECF scheme has substantially shifted the burden of doing so in practice on to the legal professions. In addition the Lord Chancellor’s Guidance on the scheme does not consider the full range of circumstances in which ECF should be made available and Michelle develops a novel argument that ECF should be granted on Article 3 ECHR grounds in some welfare benefits cases. In addition the evidence indicates that the available means of challenging refusals of ECF are not well used and there is very limited scope for independent oversight of the scheme. Michelle makes a number of recommendations for reform based on her findings.

The research will be of interest to parliamentarians, practitioners and academic lawyers so accordingly Michelle’s plans for publication include a series of policy briefings as well as articles for academic journals.