The proposals:
Criticism of the proposed reforms to legal aid ranges from articles in the Guardian and the ‘Public Law for Everyone’ blog, to rigorous responses to the consultation from the likes of The Public Law Project, the Immigration Lawyers Practitioners’ Association and the British Institute of Human Rights, to name but a few. Over 80 QC’s recently wrote to The Daily Telegraph to register their concerns over the impact the proposals will make on access to justice and equality before the law. The following, draws on these resources to summarise two of the proposals; the residence test and changes to judicial review, and highlight some of their problems.
1. The Residence Test:
The proposed residence test for civil legal aid eligibility will be in two parts. The first is simply that the claimant must be resident in the UK (including British Overseas Territories and Crown Dependencies) at the time that the claim is made. The second is that the claimant must have been legally resident for a continuous period of 12 months at some point prior to the claim and evidence will need to be provided for both parts of the test. The Ministry of Justice justifies these proposals by claiming that they prevent people with a “tenuous” link to the UK claiming public funding for civil cases. An exception does exist for civil claims made by those seeking Asylum in the UK since “this group tends to be among the most vulnerable in society” (see 3.56 in MoJ’s ‘Transforming Legal Aid’ proposal document).
The proposal overlooks a simple fact; if there is cause to bring a claim of mistreatment against a British organisation or individual, this immediately demonstrates the existence of a greater than tenuous link to the UK. However, under this proposal, there would be no legal aid for refused asylum seekers, those illegally present in the UK, trafficked people yet to declare their status or who haven’t yet been in the UK for 12 months, age-disputed children (such as those in the recent Croydon Borough Council Case) who do not fall within the Asylum exception, immigrants detained indefinitely by the UK, every infant born in the UK who is under 12 months old and many other, often marginalised, groups.
The exception included for asylum seekers is inadequate; whilst recognising asylum seekers as needing extra consideration, the MoJ fails to acknowledge many other equally vulnerable groups. Illegal residents are still susceptible to inhumane treatment, refugees are not immediately safe once granted leave to remain and trafficked individuals who are yet to claim asylum should still have access to legal recourse. Furthermore, the proposals do not account for the logistical problems of proving residence, especially for those without a permanent address or who cannot afford to own documents such as a passport. Instituting the residence test for civil legal aid claims seriously threatens many marginalised and vulnerable groups’ access to justice and, therefore, the central democratic principle of equality before the law, regardless of creed, colour, class or wealth.
2. Judicial Review reform
The proposed changes to legal aid for judicial review – the process by which governmental and other public bodies are held to account for potentially unlawful actions or inactions – would only pay a lawyer if permission was granted by the High Court. Currently, a judicial review application is submitted to the High Court for a decision on whether an oral hearing is justifiable and a lawyer is paid for the costs of submitting that application, regardless of the High Court’s decision. The changes are an effort, according to the MoJ, to limit the number of spurious and unnecessary claims.
Restricting the payment for the permission phase of judicial review will likely have the government’s desired effect; the number of review cases submitted will fall. However, the cases that will no longer be brought to the High Court will undoubtedly include those of public importance. If a lawyer has to risk not being paid for her work, she will likely only take on cases she is sure will be accepted, regardless of their individual merits. Judicial review is used by members of the public to hold public bodies to account for their actions and one recent case (R (on the application of Evans) v The Lord Chancellor and the Secretary of State for Justice [2011] EWHC 1146 (Admin)) uncovered how the Ministry of Defence had tried to influence the Ministry of Justice to limit legal aid in an effort to prevent the UK’s complicity in torture in Afghanistan coming to light. This example demonstrates, in unequivocal fashion, the need for judicial review in a legislative system. It is central to the separation of powers, allowing the courts to hold the government to account for any unlawful actions. Judicial review can help those who have been failed by the state. For instance, a destitute asylum seeker could call for judicial review of the decision of the National Asylum Support Service to withdraw support. Such cases are in the public interest, and any reforms that limit them are an unjustifiable attack on governmental accountability and equality before the law.
Why should I pay attention?
The proposed reforms are, like much of the legal system, complicated and convoluted. They are changes to processes that many of us have never, fortunately, had any experience of. This, however, highlights exactly why the reforms should be resisted; a complex system needs good legal representation to help guide the public through it, thereby facilitating justice. Without public funding for this representation, ‘justice’ becomes dependent upon personal wealth.
Under the proposed changes, the right to a fair hearing is removed for the poorest among us. Asylum seekers, refugees and illegal residents are subject to the same public organisations as any other resident; the police still have the power to arrest and detain them, public organisations still have guidelines to follow when dealing with them and, importantly, the potential for mistreatment at the hands of others is very real. The idea that a “tenuous” connection with the UK removes the right to challenge any such mistreatment is farcical; no such limitation exists for privately funded cases.
According to the MoJ, this attack on the right to fair trial and equality before the law is justifiable as savings must be made. The official prediction is that these reforms will save the public purse £220 million by the year 2018/2019 (consultation paper 1.3) . The consultation paper says that those planning to respond are “advised to keep the overall fiscal context firmly in mind” (consultation paper, 1.4). A £220 million saving is the equivalent to 0.7% of HMRC’s most recent estimate for the amount of tax avoided and unpaid (£32 billion, see here). The ‘overall fiscal context’ the Ministry of Justice refers to exposes the relative value this government places on the right to legal representation for the poorest and most vulnerable in society.
So what can I do?
There are a series of things that you can do to help:
- Respond to the consultation by 4th June 2013. Many templates are available, such as the Young Legal Aid Lawyers' and Detention Action’s.
- Write to your MP and ask him to write to Chris Grayling, the Minister for Justice, to urge him to abandon the unjust and unworkable proposals. Find your MP’s contact details here.
- Sign Save UK Justice’s online petition here – if it reaches 100,000 signatures, the issue will be debated in parliament.
- If you are a service user/organisation, forge links with the workers in the legal profession and civil service who are expected to implement the cuts.
- If you are one such worker, work within your workplace organisation/trade union (i.e. PCS) to develop resistance – and be creative about involving the ‘service user’.
This situation will not improve unless public pressure forces it to. The MoJ must be made to scrap the proposals that make a mockery of our supposed commitment to equality before the law.
Notes
Other reforms are proposed, including a change to the civil merits test to remove legal aid for cases deemed to be ‘borderline’, changes to the prison law eligibility and a wholesale change in the way in which legal aid cases are offered to solicitors firms. For more in-depth description of all the proposals see the consultation paper. For criticisms see the following commentaries and draft responses.
All information is drawn from the linked sources, and is, to the best of RAPAR’s knowledge, accurate. Any discrepancies, misinterpretations or omissions are entirely accidental. Please contact us if any of these exist.
Garden Court North Save UK Justice
PLP Draft Response bullet points
Save UK Justice
PLP: Unjust and Unworkable