Last aid: lawyers unite to fight cuts proposed in the latest UK justice system reform
10 June 2013 | By Hannah Gannagé-Stewart
The Lawyer reports from the front line of legal aid cuts as law centres and charities fear for the future of the UK justice system
The Government’s proposed reforms to legal aid have attracted widespread condemnation from lawyers. Around 13,000 responses were submitted to the Ministry of Justice’s (MoJ) Transforming Legal Aid consultation, which closed on 4 June. Among these, the Law Society, the Bar Council, the Bar Standards Board, the Treasury Counsel and even the Church of England waded into the debate.
If it was not clear to justice secretary Chris Grayling before the consultation, he is faced with a weight of evidence after it to show momentum is building in the legal sector against the proposals.
The major concerns are cuts to legal aid for judicial review applicants, the knock-on effect on the market for international litigation - which the MoJ is supposed to be pushing - and the introduction of price-competitive tendering for criminal legal aid contracts, which has been designed primarily to cut costs and includes no quality control system.
The Bar Council issued a statement confirming it had refused to facilitate proposals for price competitive tendering (PCT) for criminal legal aid. The Law Society also hit out at the plans which it said were “unworkable”.
Chairman of the Bar Council Maura McGowan QC said: “Preserving competition between service providers is simply not compatible with price-competitive tendering. Real quality requires clients to be able to choose their lawyer, not to be allocated one by the same government which is charging them with a criminal offence.
“The bar has no plans to develop a scheme which will wreck the criminal justice system and drive over a thousand solicitors’ firms out of business.” (6 June 2013).
It’s not just legal aid lawyers fearful of the demise of their publicly funded practices whose voices are being heard in this consultation. At the end of May, 90 QCs specialising in judicial review wrote to the Telegraph to communicate the “grave concerns” they had over the limitation of legal aid for review, saying the proposals “will seriously undermine the rule of law”. (Telegraph 29 May 2013).
Meanwhile, leading solicitors wrote an open letter in The Times denouncing the reforms, and the twittersphere was as vociferous as ever.
The Bar Standards Board (BSB) slammed the plans to overhaul how legal aid lawyers are paid, claiming it could lead to a miscarriage of justice. (4 June 2013) Then the Government’s litigation advisers, the Treasury Counsel, joined the row, warning that changes to the judicial review (JR) system will leave public bodies unaccountable to the public. (6 June 2013).
The more that stakeholders’ voices are heard, the more this debate comes into focus. The message from the sector is clear: this is not about lawyers afraid of losing income or disconcerted by a change in systems; this is a fight to defend UK justice - to prevent a world-respected judicial system being irreparably damaged, leaving the most vulnerable unable to access fair legal representation, government unaccountable and an exemplary judicial system in tatters.
Cases from the Islington Law Centre
Housing: Tom was in his late 30s when he approached Islington Law Centre (ILC) in a distressed state. He explained he was homeless, having fled his secure accommodation due to homophobic violence.
Tom had been subjected to severe sexual and emotional abuse during time in care. He had tried to get on with his life and cope with his physical disabilities, mental health issues and psychological problems. He had been sectioned in the past and had a history of trying to take his own life. He applied to the local authority as a homeless person and was told verbally he was not vulnerable and temporary accommodation was denied.
In despair, he tried to commit suicide and was hospitalised. On his release from hospital Tom again approached the local authority homelessness department and was handed a letter confirming he was not vulnerable and therefore not in priority need. He asked for assistance and was told ILC might be able to help. By the time he reached ILC it was mid-afternoon and he was very distressed, and said he felt like killing himself. Urgent contact was made with the local authority and a request for urgent interim accommodation was made.
Psychiatric evidence was provided to the authority together with a request to review its decision under s.202 of the Housing Act 1996 (Part VII). The authority declined to provide interim accommodation pending the outcome of the review request. ILC had no option but to issue JR proceedings and seek urgent injunctive relief. That evening the High Court ordered the authority to provide interim accommodation. While proceedings were issued the matter did not go to permission or a full trial as the local authority conceded its position, and Tom was spared the trauma of lengthy litigation in the High Court. Tom was clearly vulnerable and had the local authority fulfilled its statutory duty and made enquiries into his circumstances while placing him in temporary accommodation, a JR would have been avoided.
In this scenario, irrespective of the successful outcome obtained for Tom, under the new proposals ILC would not be paid by the Legal Aid Agency as the successful remedy was achieved prior to determination of the permission application. Furthermore, there are many young men in Tom’s situation who would not meet the residence test.
The Streetlegal Project: Streetlegal, based at Islington Law Centre but active across London, is a specialist legal advice service for children and young people facing destitution and street homelessness. Streetlegal works closely with the youth service and colleges providing a holistic service to meet the needs of this vulnerable client group. It also provides advocacy support for the young people it represents which includes ensuring someone is present when they attend interviews with housing or social services departments, as well as help with completing forms and applying for benefits.
As referrals come via the youth and Connexions services, there has already been extensive advocacy on behalf of the clients and therefore referrals for litigation are a last resort. It is a crisis intervention service and an emergency-based service.
Since 2004, 70 per cent of its cases with young people have involved breaches of the law by local authorities, and the threat of JR challenges by way of a pre-action protocol letter. 99 per cent of these cases result in the authority backing down, with positive outcomes for the vulnerable client group.
Streetlegal currently has only one case in the High Court.
Sarah is a 17- year-old who was referred for psychiatric services when she was rescued by a passer-by from attempting to throw herself off a bridge. She is the sole carer for her mother and younger siblings and has been finding it difficult to cope with her studies and responsibilities.
Sarah’s mother refuses to engage with support services and Sarah’s psychiatrist tried to refer Sarah to the local authority for a child in need assessment under the Children Act 1989, but was not having any success. Sarah’s mother told her that she could not return to the house and she was facing homelessness.
Streetlegal wrote a pre-action protocol letter challenging the local authority’s failure to carry out the assessment and provide s.20 accommodation. Following this the local authority accommodated Sarah while an assessment was being carried out by social services. The local authority then accepted a full duty to accommodate and look after Sarah. Sarah would have been unable to have her case heard without the expert help of legal aid lawyers.
Abdul is a 17-year-old whose mother has a history of mental health issues. He was in care from the age of 10 to 13 and then went to live with his father until a year and half ago, when he returned to his mother’s.
Abdul’s mother assaulted and threatened him with a knife and the police said it was not safe for him to return home. He approached the local authority for assistance and was advised that he should ‘sofa-surf’ until he went to university.
Streetlegal challenged the local authority’s refusal to carry out a child in need assessment and provide Abdul with accommodation by way of a pre-action protocol letter. Abdul was then provided with support and accommodation from social services. This sort of action against a public body meant to have the best interests of a young person in mind would not be possible without the help of free and independent specialist lawyers.
Mark was accommodated by the local authority under a Part VII homeless applica tion under the Housing Act at 17. When he turned 18 a s.184 decision was taken that he was not in priority need of accommodation.
Mark was receiving psychiatric treatment, had been diagnosed with borderline personality disorder and had attempted suicide on two occasions while in temporary accommodation. When Mark received the letter saying he had been found not to be in priority need and cancelling his housing he attempted suicide and was hospitalised.
Streetlegal obtained a psychiatric report confirming he would be vulnerable if he were homeless as a result of his mental health issues and relied on case law that it was unlawful for the local authority to have delayed the decision on his housing case until he turned 18. Streetlegal then requested a s.202 review and made representations for interim accommodation with a threat of JR if the authority did not provide it.
The local authority provided interim accommodation and withdrew its s.184 decision following full representation.
Education: CM is a 19-year-old Nigerian national. She entered the UK when she was around 7 under the control of her mother. Her mother had limited leave to enter the UK as a student and overstayed in the country, as did the children, including CM.
CM grew up in ignorance of her mother’s immigration issues and it was not until she was 17 the issues came to bear when she applied for student loan finance to go to university and was refused. By this time CM knew she had “discretionary leave to remain” (DL) in the UK, but she did not understand this would cause more prejudice than someone who is settled here. With DL, a person is not eligible for domestic student loan finance so CM cannot currently go to university, even though her DL was conferred on the basis that she, her mother and siblings cannot be lawfully expected to leave the UK on the basis of their strong ties to their local community here and the UK as a whole.
ILC is helping CM with liaising with the student loans company as part of a pre-action procedure.
A young person like CM with zero to limited resources, complex legal matters concerning her education and immigration affairs and no means to consider her legal case herself deserves good representation and the correct remedy in law.
Immigration: VC is an elderly lady who originates from Jamaica and has lived in the UK since around 1965. She was brought to the UK to join her parents who arrived after the war.
As VC entered the UK before the Immigration Act 1971 she has a statutory right to settle permanently in the UK. In addition, many other elderly UK residents have rights of permanent settlement even if they arrived after 1971. The problem is that the Home Office says they do not keep records of foreign nationals granted historic settlement as they are obliged to destroy papers pursuant to the Data Protection Act.
Over many decades clients have lost passports, other ID documents and endorsements, and cannot prove they are lawfully in the UK. This category of vulnerable older resident is often marginalised and, under the new provisions, would immediately fall foul of the residence test and fail to engage alawyer for a judicial review action.
BL is a 34-year-old man from the Democratic Republic of Congo (DRC). He is severely mentally disabled and being supported by the Tavistock Centre.
He has a UK student visa but suffered an attack that left him brain-damaged. The funds he had in the DRC have stopped and there are concerns that members of his family with control of his affairs are misusing their positions. BL now has an immigration lawyer and a community care lawyer, which he would not be able to access were the residence test to take effect. He has been in the UK for 10 months.
Commentary: Maura McGowan QC
The proposals contained in the Ministry of Justice’s (MoJ) paper, Transforming Legal Aid, would completely alter the way people accused of a crime and cannot afford to pay their own legal fees, will be represented.
Some politicians and sections of the press claim the over-whelming public reaction to the proposals is simply fat cat lawyers bleating because the racket they have been engaged in is being brought to a timely end. That is unfair and untrue. Of course lawyers have an interest in their fees. But the profession is united with many other groups in protesting against the damage these changes would do to a system that is world-renowned.
A government that espouses competition, wants to cut the number of solicitors’ firms from 1,600 to 400 and puts in place a system whereby defendants who are charged by the state are represented by a lawyer allocated by the state, cannot claim to be acting in the public interest.
We will continue to work with the MoJ to find ways of saving money without doing irreparable damage to a system that sits at the heart of a democratic society. We have pointed out areas where the MoJ’s figures do not add up to the degree of savings sought. We have pointed out alternative means of funding, such as compulsory insurance for banks and firms against the costs of paying for representation of their employees charged with fraud. We have shown ways to make savings by using restrained assets from wealthy defendants. And we have suggested the abolition of the VHCC scheme, the avoidance of unnecessary hearings, the greater use of technology and stricter case management.
All the above could save money and would not destroy the best justice system in the world.
Maura McGowan QC is chairman of the Bar Council
Like many law academics, I suppose I had grown tired of well-heeled QCs claiming that this or that change to legal services spelt doom for their profession when what they really meant (I invariably thought) was slightly less money to spend on a second home. Lawyers have cried wolf so often it is hard to take their annual protestations against change seriously. So it was with a half-awake mind I listened the other Saturday morning to a presentation from my Matrix Chambers colleague Nick Armstrong on what the government now proposes. I woke up fast.
What has already happened is serious. The Legal Aid, Sentencing and Punishment of Offenders Act 2012severely limits legal aid for judicial review. It has just kicked in.
And what is coming is different, very different, even from that swingeing intervention:
- changes to criminal legal aid that will deny choice and effective representation to those accused of crimes, leaving them in the hands of the lowest bidder for this service;
- refusing legal aid to those who do not meet a residence test;
- refusing to pay lawyers, in some cases, for work reasonably and necessarily carried out;
- removing legal aid for complaints of mistreatment in prison;
- preventing small specialist public law firms from offering prison law advice;
- removing funding for test cases (whose prospects are by definition uncertain);
- cutting rates for legal advice and representation still further.
Silks speak out
This is what no fewer than 90 QCs said about the proposals in a letter published in The Daily Telegraph on Wednesday 29 May: “The cumulative effect of these proposals will seriously undermine the rule of law, and Britain’s global reputation for justice. They are likely to drive conscientious and dedicated specialist public law practitioners and firms out of business. They will leave many of society’s most vulnerable people without access to any specialist legal advice and representation. In practice, these changes will immunise Government and other public authorities from effective legal challenge. Abuses by UK agents and officials overseas that hitherto have been subject to the scrutiny of British courts will now in practice attract impunity.”
What this amounts to is an ouster clause by the back door. The moneyed will still have the finest lawyers, but the rest of us will either have the cheap and cheerless attentions of privatised public defenders if we are arrested or be left to our own devices if the Government acts unlawfully.
The judges are rightly worried about the latter.
This is what the 90 QCs had to say: “People whose lives are affected by the unlawful action of public bodies will have no option but to try to represent themselves. Effective representation will be one-sided: the Government will continue to pay for, and be represented by specialist lawyers.”
Of course, judges will try to help - for a while. As will government lawyers - for a while.
Times will change
What is shocking - a claimant in person floundering to explain why what has happened to them is unlawful as well as wrong - will become first normal and then irritating. All that time wasted. Why don’t they just get on with it? Without specialist law firms younger QCs will emerge, invariably from the world of commercially paid work, with no feel for or memory of the equalities of the past. The public interest bar will be a thing of charity and training, not a core advocacy activity for all.
Can this happen?
Of course. We only have legal representation for all because of state support. It is part of the welfare reforms of the Attlee administration. Before then, the occasional consumer of ginger beer aside, the law was for the rich, a playground for the settlement of superfluous disputes rather than a means of improving lives and holding government to account.
Effective impunity within a system of notional accountability - that is what the Government is after. Exactly the sort of thing that makes up the sort of neo-democratic state I have written about in a book I published earlier this year, Liberty and Security.
And what about the law schools? I predict:
- no more exciting public law cases;
- UK forces acting abroad in the sure knowledge none of their alleged victims will be able to secure justice;
- no more housing or welfare cases;
- lots of commercial judicial review;
- back to being soulless servants of economic power, our students trainee referees for disputes between the rich.
On 4 June the Government’s consultation came to an end. We have to stop this juggernaut. This time it is serious. And time for us all to wake up.
Conor Gearty is professor of human rights law at the London School of Economics and also director of its Institute of Public Affairs. He is a barrister at Matrix Chambers. This article was originally published on 30 May. It is reprinted with kind permission of the Oxford Human Rights Hub,