Question to the Ministry of Justice:

To ask the Secretary of State for Justice, what the policy is of (a) her Department and (b) HM Courts and Tribunal Service on granting legal aid to travellers for enforcement cases against unauthorised (i) development and (ii) encampments.

Determinations about whether an individual qualifies for legal aid are made by the Director of Legal Aid Casework or Legal Aid Agency staff authorised by the Director to make determinations. The statutory role of Director of Legal Aid Casework was created under section 4 of the Legal Aid Sentencing and Punishment of Offenders Act 2012 (LASPO). In making individual determinations, the Director must act independently of Ministers, applying the relevant statutory framework. The Lord Chancellor may not issue directions or guidance in relation to an individual case.

There is no specific policy relating to granting legal aid to travellers regarding any form of enforcement activity. All applications for legal aid are considered on a case-by-case basis against the statutory framework and any applicable general guidance issued by the Lord Chancellor. Legal aid will be granted in all cases where the appropriate eligibility criteria are met.

The relevant eligibility criteria will depend on the nature of the case and in particular if it is a civil or criminal case and whether it is in scope of civil services as described under Schedule 1, Part 1 of the Legal Aid Sentencing and Punishment of Offenders Act 2012 or outside of scope in which case it would be considered against the criteria for exceptional case funding (ECF). Although the specific criteria will differ depending on the type of applications, the individual will need to demonstrate that they are financially eligible for the legal aid services sought and that their case meets the applicable merits criteria. Additionally, for ECF the individual will need to demonstrate that failure to grant legal aid would breach, or risk breaching, the individual's Convention rights (within the meaning of the Human Rights Act 1998), or any rights of the individual to the provision of legal services that are assimilated enforceable rights. Full details of the eligibility criteria for legal aid including links to the relevant legislation can be accessed via the LAA’s website here for civil legal aid, criminal legal aid and ECF.

HM Courts and Tribunal Service does not have powers to grant legal aid save for in very narrow circumstances as set out in the Criminal Legal Aid (Determinations by a Court and Choice of Representatives) Regulations 2013, none of which apply to enforcement cases against unauthorised development and encampments.