RECENT AND PROPOSED CHANGES
In April 2013 the Government announced far reaching proposals to changes to legal aid. The proposals will have a dramatic impact on access to justice in both criminal and civil issues. You can read the full Ministry of Justice “Transforming Legal Aid” proposals here and here and a summary of them is here..
We believe that the changes to criminal legal aid will severely undermine the quality of legal representation received by people accused of criminal offences, thereby creating a real risk of miscarriage of justice.
The changes to civil legal aid will deny many of the poorest and most vulnerable people in society the means of enforcing their rights, and will mean that in many cases the Government cannot be held accountable in court for its actions.
A key concern is that the Government plans to make many of these changes through secondary legislation. This means that there will not be detailed debate in Parliament.
Judicial Review is a legal process in which the court is asked to decide whether a decision by a public body is lawful or not. It is an important tool to hold the state accountable and to ensure that decisions are not made arbitrarily or in disregard of the law. Judicial Review can be brought against any public body, including local councils, social services, the Home Office, the police, and prisons and has been used to promote better decision making in all of these institutions.
The government has sought to limit our ability to challenge its decisions by Judicial Review in a variety of ways:
- Since 22 April 2014, legal aid lawyers who carry out judicial reviews risk not being paid for significant aspects of their work if the Court does not think the case has enough merit to be granted ‘permission’ to proceed to a full hearing. As it is very difficult to be sure in advance whether permission will be granted, this reform is likely to have a chilling effect on access to justice as lawyers refuse cases where they are unable to bear the risk of non-payment.
- Since 27 January 2014, legal aid has been refused for cases where the chances of success are assessed as borderline. This means those cases whose prospects are borderline precisely because they break new legal ground, cannot be legally aided.
- In the Criminal Justice and Courts Bill, the Government have proposed that there should be costs penalties to third party interveners in judicial reviews: there will be a new presumption that anyone intervening in a case must be liable for costs if any party asks the Court to order them to pay. This seems designed to discourage charities and other organisations that intervene in cases in the public interest to assist the court.
- The Government have also proposed changes to orders protecting costs in public interest cases: the Bill raises the bar for the cases that can attract costs protection in the public interest and removes the possibility of any costs protection before the permission stage.
Some examples of recent Judicial Review challenges which will soon no longer be able to be brought are:
- the London Borough of Lewisham’s successful challenge to the government’s decision to reduce maternity and A&E wards at Lewisham Hospital in 2013;
- a challenge in 2012 to cuts in payment for an elderly care home in Devon which could have resulted in the home’s closure without adequate consideration for its residents, many of whom were frail and suffered from dementia;
- on ongoing challenge to the proposed HS2 rail line, criticised for proceeding without adequate consultation with local residents and consideration of the environmental impact;
- the Countryside Alliance’s attempt to prevent a ban on fox-hunting in 2004.
The government is proposing a ‘residence test’ for all non-criminal legal aid. To qualify for legal aid, with some exceptions, people will have to prove that they live lawfully in the UK and that they have done so for at least a year. The residence test is due to come into force on 4 August 2014.
The residence test will mean:
- A huge burden for everyone, including British citizens, in terms of providing evidence that they have been resident in the UK for the required period. This is particularly the case with vulnerable individuals such as those who are homeless or those with serious mental health problems.
- A risk that legal aid providers may discriminate against certain ethnic or cultural groups where there is some uncertainty as to the strength of the evidence. This is because under current plans, legal aid providers will bear a risk of not being paid for any work if at a later date the Legal Aid Agency decide that they are unhappy with the level of evidence.
- Increasing inequality in society: where two learning disabled children are in the same class, but one has parents who have not been resident in the UK for long enough, those parents who pass the residency test and find themselves eligible for legal aid will be significantly more likely to obtain a certificate of Special Educational Needs for their child.
- Victims of trafficking who are not properly recognised as such will not be able to access legal aid to ensure they receive the support they need and deserve.
- Anyone held unlawfully in immigration detention and anyone abused or denied adequate medical treatment while detained will be prevented from seeking damages if they cannot afford to pay privately.
- Those killed, harmed or detained by the British government abroad will not be able to rely on legal aid to hold the government to account for its actions.
The residence test is currently the subject of a legal challenge in the High Court due to the serious unfairness it is likely to cause. The case has been brought by the Public Law Project and a judgement is expected soon.
The residence test is not about saving money; the government hasn’t suggested that any of the legal aid budget will be saved in this way. Instead, it is likely that the proposals will cost more money , as every individual who wants legal aid for non-criminal matters will need to be checked carefully to show that they are eligible.
Read more about the residence test and how it will affect individual groups here
Prison law has historically protected the rights of some of the most vulnerable individuals ,
Much like the residence test, the Government have indicated that key reasons for cutting legal aid for prisoners are ideological rather than on the basis of projected cost savings. A number of changes have now been made:
- Since 20 March 2014, fees have been reduced by 8.75%. As prison lawyers are typically paid a low fixed fee for all work done on a case regardless of the outcome, there is a real danger that fee reductions are putting increasing pressure on lawyers to take on more cases than can properly dealt with, in order to remain sustainable.
- Since 2 December 2013, large swathes of prison law which have been instrumental in helping offenders progress through their sentence and resettle into the community are no longer legally aided.
- Legal aid for sentence planning work has been cut, which previously helped ensure offenders get access to offending behaviour work while they were in prison.
- Resettlement work, where lawyers were paid to write to councils and ensure that prisoners – particularly young offenders – who were released from prison would have appropriate housing or support from social services on release has been scrapped.
- Perversely, although prison lawyers are now no longer paid for liaising with a council or a prison in order to explain their legal duties, they will be paid for taking steps to take a council or prison to court. This discourages the informal resolution of legal problems and encourages unnecessary and expensive litigation.
- Although treatment cases were already seriously restricted as a result of earlier reforms, they are now definitively out of scope: cases such as those where a mother of a young baby seeks to defend a decision that her baby should be able to stay in prison with her, will no longer receive legal aid.
There is a fear that these reforms will mean those held in prison will become still less visible members of society and completely powerless to challenge abuses which occur within prison walls. The Howard League, a leading prison reform charity, have expressed considerable concerns as to how this will affect the most vulnerable prisoners, and particularly children – see here.
The effects of recent cuts to criminal legal aid are already being felt. The key proposed and recent changes are:
- Since 2 December 2013, solicitors and barristers have seen their fees cut by up to 30% in complex ‘Very High Cost Criminal Cases’. This almost resulted in a high cost fraud case, known as ‘Operation Cotton’ being thrown out, after the Prime Minister’s brother – Alexander Cameron QC, successfully argued that legal aid cuts had left the defendant without a suitably qualified advocate willing to take on his case.
- On 20 March 2014 a 8.75% cut was introduced to criminal solicitors fees for all other cases, across the board
- The Government plan to drastically reduce the number of solicitor firms allowed to undertake duty work. This is anticipated of having the effect of reducing the number of firms and the level of diversity within the legal aid sector.
- The Government plan to make further fee cuts.
Legal aid firms specialising in criminal legal aid are already barely making any profit; many will simply be unable to survive further reduction in fees. A combination of fee cuts, and a lower number of firms allowed to undertake duty work, will mean an increase in the number of firms forced to close. This could mean the loss of specialist lawyers who have years of expertise in specialist or niche areas. This will result in an increased risk of miscarriages of justice.
Committee Room 8
Meeting started on Tuesday 26 November at 2.15pm. Ended at 4pm
The implications for access to justice of the Government’s proposals to reform Legal Aid
Rt Hon Chris Grayling MP, Lord Chancellor and Secretary of State for Justice