The UK government is pushing forward with plans to (further) decimate the legal aid system. In the first of a series of blog posts on Legal Aid, NCADC volunteer Jacqueline gives an overview of the changes, proposals and debate.
In our “Where Is Justice” blog post on 21 May 2013, we illustrated some severe changes made to legal aid by the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO), and we highlighted further brutal proposals contained in the “Transforming Legal Aid” consultation.
The three proposals which will have the most disastrous impact on migrants are the proposal to take away an individual’s right to choose their solicitor (in criminal and immigration matters); drastic restrictions on legal aid granted for judicial review; and the residence test.
Thankfully, following uproar from the legal profession and various activist and human rights groups, Chris Grayling has announced that the proposal to remove choice of solicitor is to be axed. This is excellent news, however a cynic can not help but wonder if it has always been to plan to drop this proposal and so be seen to give way on something.
The proposals were the subject of a Parliamentary backbench debate on 27 June and there was some encouraging discourse from many MPs. The overall consensus seemed to be that the proposals are far too harsh. Immigration and asylum issues came up sporadically, as most of the commentary concerned people who had been accused or convicted of crimes, or the effects on small to medium high street law firms.
The consultation proposes to only allow legal aid for judicial review matters where there is at least a 50% chance of success. If a solicitor helps a client with an application for judicial review, they will only be eligible for a legal aid fee if permission is given, so a significant financial risk lies with the solicitors in cases where success is far from guaranteed. Bear in mind that a case with a 30-40% chance of success is far from a nuisance action, so there will be a great number of pressing applications which will not proceed for lack of funding. If this proposal comes into force then we will see a massive drop in the public’s ability to hold the government to account.
At the debate in parliament, Conservative MP David Davies said that “…the Government are in danger of getting themselves a reputation for wanting to act above the law. Irksome as it is, judicial reviews are what keeps British Governments honest”.
Labour MP Valerie Vaz expressed a similar scorn for the proposal, saying “No one can predict the outcome of a case, so having to make a judgment that there is a 50% chance of winning to receive legal aid, is absurd”.
The residence test is set out in the proposals and, fundamentally, removes legal aid from anyone who cannot prove they have been lawfully resident in the UK for 12 months. We touched on this in our “Where Is Justice” post, outlining the harsh consequences on asylum seekers with failed appeals as well as refugees with leave to remain and non-asylum seeking immigrants. At the debate, MPs were very damning of this test.
Karen Buck (Labour) spoke out against the proposals and expressed the concerns put to her by Just For Kids Law, who fear that the residency qualifications will hit trafficked children and the children and families of domestic violence.
Sarah Teather, former children’s Minister, also gave objection to the residence test. She pointed out that LASPO lists categories of groups which are protected from the cuts, recognised to have a vital need for legal representation. Many members of these groups, such as those in immigration detention and victims of domestic violence, for example, will fail the residence test and therefore not be able to obtain the help of a solicitor. Many asylum seekers who have finally been awarded refugee status, will not be able to get legal for a year afterwards. Refugees commonly need legal intervention to protect themselves from homelessness, so this change would be disastrous for them.
Parliamentary Under-Secretary of State for Justice, Mr Jeremy Wright, stood at the end to address the concerns of the MPs who spoke at the debate. His response was relatively brief and vague. He assured that the new Legal Aid Agency will enhance accountability, but otherwise he did not directly address any of the points made with regard to the residence test or judicial review changes.
Chris Grayling has now dropped the most objected-to proposal to remove a client’s choice of solicitor, but it is yet to be seen what his response is to the very significant arguments against the other proposals.