Monthly Archives: June 2013

The ‘Residence Test’: it’s not just about migrants

Under the government’s plans to ‘transform’ legal aid, those who do not meet a ‘residence test’ will be unable to get help from a legal aid lawyer for non-criminal matters, unless they have an ongoing asylum claim or unless there are ‘exceptional circumstances’. This will of course affect many vulnerable migrants to the UK, including victims of traffickingchildren and those in immigration detention.

But the residence test has the potential to affect everyone who can’t afford to pay for a lawyer, not just migrants. If the proposals are implemented, all potential legal aid clients – including British citizens – will need to show evidence that they meet the residence test to any legal aid lawyer they wish to instruct. If you have proof you’re here legally – a valid British passport, for example – and evidence that you’ve spent at least a year here lawfully, all well and good. But what if you don’t have these things available, and need urgent help? How would you prove your eligibility then?

Victims of Domestic Violence

A British victim of domestic violence finally has the courage to leave an abusive partner, and flees to a refuge or to stay with a friend with just a few belongings, for example. The victim approaches a family lawyer the following morning, in need of an urgent application to the court to ensure the violent ex-partner stays away.

But, without a passport (or other proof the victim is lawfully in the UK) and documentary evidence of a year’s lawful residence, victims of domestic violence won’t be entitled to legal aid for this under the current proposals, no matter how severe the violence. How many victims are able to flee with evidence they meet the residence test ready to present to a legal aid lawyer when needed? How many victims – including British citizens and those legally here – will be forced to stay in violent relationships because of this? And what’s to prevent perpetrators of violence destroying or hiding such documents, knowing the victim won’t be able to access urgently needed help without them?

Care proceedings and abduction

The residence test also has massive implications for parents involved in care or adoption proceedings against a local authority. Parents and children who can’t prove they meet the residence test won’t be eligible for legal aid for this, meaning many will be unrepresented in court.

And imagine you return home to find your partner has left with your children and your passport, and is planning to leave the country with them. Under the current proposals there will be no legal aid for you to apply to prevent this in the family courts, until and unless you’re able to prove you meet the residence test. How would you prove this without official documents? How long would it take? And what would happen to your children in the meantime?

The proposals will also mean no legal aid for contact and residence disputes where there is domestic violence, unless you meet the residence test.

Representation of children

One final important impact of the residence test: in family and care proceedings, children will often have their own separate solicitors, instructed through a guardian to ensure that the court does what is best for them. The residence test would mean that many children without proof they meet it will not be entitled to a legal aid lawyer to represent their interests in court. How many children with ongoing care or adoption proceedings will be able to prove they meet the residence test?

Reducing the legal aid budget? 

The residence test will of course have a huge impact on migrants, but potentially affects all of us, and our friends and families too. It will prevent many British citizens’ ability to seek help from a lawyer when they most desperately need one. The government repeats the need to reduce the legal aid budget as justification for its proposals, but has so far been unable to say how much it thinks the residence test will save. Indeed, Dr Nick Armstrong of Matrix Chambers estimates that the residence test is likely to cost the government more money than it saves, because of the costs associated with determining whether a person meets the residence test or not, and additional likely expense of immigration detention, among other costs.

Act now!

Let’s stop these proposals! Contact your MP about this as soon as you can. This affects us all!

Attorney General and Nick Clegg join the critics

Over the weekend, two important and welcome voices joined the already widespread criticism of the Ministry of Justice’s legal aid proposals.

The Attorney General Dominic Grieve QC

Saturday’s Telegraph reported the Attorney General’s recognition of ‘deeply and sincerely held’ concerns that the government’s legal aid proposals would ‘collapse the edifice’ of our justice system, in his letter to government lawyers of 17 June.

The Attorney General’s letter – a response to Panel Counsel’s letter of 6 June describing the proposals as ‘unconscionable’ – acknowledges that concerns about the legal aid proposals go ‘well beyond personal and financial implications’ and extend to ‘the potential impact on the quality of the justice system this country is rightly proud of’.

In the same letter, the Attorney General confirms he has already discussed the matter with the Lord Chancellor, and that he will endeavour to ensure, as far as he can, that the decision reached in due course regarding the proposals is ‘fully informed’. Let’s hope he keeps the pressure on.

Nick Clegg

And Liberal Democrat leader Nick Clegg was quoted in yesterday’s Mail on Sunday as calling plans to deny people the choice of defence lawyer ‘perverse’. Read the full article here and further comment on this in the Law Society Gazette here.

In the full interview, Clegg reassures interviewer Nick Thornsby that, while legal aid savings must be made, Chris Grayling and Lord McNally ‘are not dogmatic about how that saving can be made’, and that if the consultation shows that there are ‘alternative ways, less disruptive ways, less unpopular ways’ of delivering the savings, there’s ‘no ideological attachment in the coalition government per se to those particular measures’. Good to hear, not least after Lord McNally explained to those present at the Bar Council’s recent ‘Question Time’ debate that he’d been advised ‘not to buckle’ on such proposals.

Many of the 16,000+ responses to the consultation will have many alternative, less disruptive and less unpopular ways of saving the MoJ some cash. Clegg ‘will shortly be asking Chris Grayling and Tom McNally for an update on what the response to the consultation has been’. We look forward to hearing all about it, Nick.

The view from the Financial Times

Here’s a quick digest of the coverage the legal aid proposals have received in the Financial Times over the last couple of weeks.  If you aren’t subscribed to the FT online it only takes a few minutes to register for a free trail, which will allow you to read all the articles in full.

A generous legal aid system

In an editorial on 4th June the FT expressed sympathy with the  government’s aim to reduce costs, and approved its mantra that “taxpayers [should] feel their money is being used wisely”. The UK’s legal aid system was described as “generous” when compared to that of Canada, which has a similar legal framework. This comparison was criticised in a letter on 9th June by Mr Chris Henley of Carmelite Chambers, who pointed out that it had failed to take into consideration the much higher volume of cases per capita that UK courts deal with compared to their Canadian counterparts.

The need for safeguards

At the same time the FT notes that the costs are already being “squeezed substantially”, pointing to the £ 320m annual savings that will be delivered by the withdrawal of large areas of civil legal aid from 1st April 2013 as a result of the Legal Aid, Sentencing, and Punishment of Offenders Act 2012 (‘LASPO’). It also warns that the drive to cut costs should not “create perverse incentives”, such as creating a financial incentive for lawyers to advise clients to plead guilty. Safeguards are needed to ensure quality and access to justice, the editorial concludes, otherwise there will be a risk that principles at the heart of democracy will be undermined in the name of a “marginal fiscal benefit”.

Other stories

On 7th June FT’s legal correspondent Caroline Binham reported on the letter that Treasury Counsel, barristers used by the government to represent them in cases, wrote to the Attorney General, Dominic Grieve. It is good to be reminded of how damning the government’s own lawyers are of the proposals which are referred to as “impossible to reconcile with the rule of law”. The FT picks up on Treasury Counsel’s attack on the residency test – which would exclude anyone who hasn’t been in the UK lawfully for at least 12 months from legal aid for any civil case – as “unconscionable”. Such a test would risk creating an underclass of people who would not be able to enforce rights that the law provides them.

On 11th June the FT reported that the Law Society told the Justice Select Committee that it believed elements of the government’s proposals are unlawful, and that it was prepared to take the government to court over them. On 17th June the FT also reported that in Manchester lawyers campaigning against legal aid cuts were expected to join court staff who were striking in relation to pay and conditions.

Related to this article

Legal Aid Question Time

This evening we attended the Legal Aid Question Time organised by the Bar Council, and hosted by Joshua Rozenberg. On the panel were Andy Slaughter MP, Shadow Justice Minister; Maura McGowan, Chair the Bar Council; Lord McNally, Minister of State for Justice; and Steve Hynes, Director of the Legal Action Group. Here are our highlights from the debate.

A hysterical response?

We had the pleasure of asking the opening question. Did the panel agree with Lord McNally’s characterisation of the legal profession’s response to the consultation as ‘hysterical’? The panel did not agree. Lord McNally said that these changes had not been sprung on the legal profession, that there is ample room for the profession to adjust; and that even after these changes England and Wales will still have the most generous legal aid scheme in the world. He said he did not regret using the word ‘hysterical’. He did acknowledge however that the accusation that the proposals will reduce quality is a valid one, and one “we should look at”. He also appeared to accept that the government is aware  that it is likely to face legal challenges in relation to its proposals.

Cost saving vs impact on society

A recurrent theme of Lord McNally’s responses was that these changes are motivated by cuts to the budget of the Ministry of Justice. He said he has seen a 23% cut in his budget, that “we have all taken hard hits”, and that it is only right that the legal profession must also bear the pain. Andy Slaughter said that if Labour were in power they would also reduce the legal aid budget, but that the issue is how. He listed some of the problems with these proposals as being that they remove competition, they will force the closure of three quarters of criminal defence firms, they will provide a financial incentive to legal representatives for their clients to plead guilty. He also condemned the proposals as an attack on people who do not otherwise have power, that will deprive them of the ability to seek redress in the courts.

Interestingly, Lord McNally appeared to accept that the changes will impact on the most vulnerable. He said “if you manage part of the tax payers’s money and you cut that budget, you are going to hit the poorest and most deprived in society.” Later he mentioned that there is also the overriding principle of access to justice, but that that shouldn’t prevent the profession from organising itself to be as efficient as possible for the tax payer.

Change without wrecking the system

Both Maura McGowan and Steve Hynes expressed their commitment to engaging with the government’s proposals in a constructive manner. Maura McGowan said that changes should be made where required, but she emphasised that there is a “substantial risk that criminal justice will be wrecked” if these proposals are implemented. Steve Hynes said that there are savings to be made, but warned that there would be constitutional implications if the proposals to limit the availability of legal aid for judicial review and prison law were implemented. He suggested we would look to Scotland where savings have been achieved in a different way.

Happy reading!

One hour was not enough to satisfy the audience’s desire to put questions to the panel. Fortunately, Lord McNally said more than once that “it is a consultation and we will listen to responses”. The government has said it will respond to the consultation in the autumn.  They are considering 16,000 responses. Assuming they do so in 3 months,  the Ministry will have to consider over 260 responses each working day.

Related posts

Previously posted here: Lord McNally vs the “hysterical” legal profession

Legal Aid Question Time: highlights by Jon Mack

A letter to Lord McNally from up North

An Hysterical Question Time by a barrister at Argent Chambers

Legal Aid Question Time – 18 June 2013 by Gemma Blythe

Head of Legal’s comments “McNally: If you live in a bubble, you’re not going to persuade people”

Truthaholics’s writeup UK legal aid cuts: Natural justice faces a savage loss of innocence!

The price of justice

On Friday BBC London reported that the men who were found guilty of the murder of Stephen Lawrence ‘received’ £ 425,000 in legal aid. This information was obtained through a Freedom of Information request carried out by the Daily Mail. The article does not say precisely what ‘the point’ it is trying to make is – but presumably it is that the legal aid costs of some cases can be very high. But is this such a bad thing? People who have been accused of committing a crime are innocent until they are proven guilty. In some complex cases the cost of preparing a defence may be high. In some cases they may be found guilty in the end. But is it better to know that their convictions are safe, having spend that money on their defence, or to risk a incorrect conviction?

The BBC do not set out the government’s proposals to change legal aid in any detail, and only briefly mention that they have sparked “some” concerns. This seems rather an understatement when the President of the Supreme Court, a retired Court of Appeal Judge, Crown Court judges, leading barristers, including some advising the government, the government’s own human rights watchdog, as well as countless charities including Amnesty International, Human Rights Watch, and Liberty have all expressed very serious concerns about the proposals, including the risk that they will lead to miscarriages of justice.

The impact of legal aid changes on migrants and refugees

The ‘residence test’: what it means for refugees and migrants

The government’s plans to introduce a ‘residence test’  (please see our flyer which you can download on the right for an explanation) will mean that many migrants and refugees will be denied legal aid. As a result:

  • people may be sent back to countries where they face a risk of persecution;
  • people may be detained in immigration detention centres indefinitely – in many cases for months or years – without having legal aid to help them apply to be released;
  • people who have been trafficked to the UK to be exploited will not be able to have legal aid to help them enforce their rights;
  • people may not be able to challenge the Home Office delay in dealing with the case, even though they have been waiting years and years for a decision.

Reactions to the ‘residence test’

Leading lawyers have said that they believe the residence test would be unlawful, because it “denies practical and effective access to justice to what are essentially a group of ‘foreigners’”, even though their case has merit and they cannot afford to pay for a lawyer privately. The residence test has also been attacked as being unworkable, because people will have to prove that they have been in the UK lawfully for at least 12 months, which many will not be able to do because they don’t have the right paperwork, and because what counts as ‘lawful residence’ is something very complex.

Leafleting at Refugee Week 

Today we handed out some 400 flyers on the Southbank in London, at the launch of Refugee Week. This is an annual event which takes place across the UK aimed at celebrating the contribution that refugees make to the UK and promoting a better understanding of why people seek asylum. The people we spoke to were generally very interested in the campaign and we hope they will go home and sign the e petition. Refugee Week runs until 23rd June with a full programme of arts, cultural and educational events. We have sent our special ‘Refugee Week’ flyer to event organisers across the country, but would encourage anyone going to an event to download some and take them with you!

Legal aid in the news round-up

The Independent 

Legal Aid: Well, they are called the wheels of justice…

Writing in The Independent, Mark Steel delivers a scathing satirical attack on the proposed legal aid changes. Talking about G4S, the security firm that also has the contract to transfer prisoners from the courtroom to prison, he writes:

“So the G4S lawyer can tell their client: “The guilty verdict may be slightly disappointing, but the good news is you’re being taken to the slammer by my colleague Dave who’s a right laugh, so it’s worked out quite well, all in all.”

Maybe G4S can offer a discount if the same person does both jobs, saying: “I’ve brought the witness statements, and I’ve got the handcuffs in case I arse it up, so, either way, I’m prepared.””

Steel also highlights one of the most compelling examples of why the ‘residence test’ that the government proposes to introduce for all non criminal cases, unfairly discriminates against certain people:

“Then there’s the rule that no one will be entitled to legal aid unless they can prove that they’ve been legally resident in the UK for 12 months. So women who’ve been illegally trafficked here will be disqualified. That will teach them to sponge off the state.”

The article concludes with a comment on what the government hopes to achieve with these changes:

“The whole scheme is to reduce a legal-aid bill that’s stayed the same for 10 years, and curb “fat-cat lawyers”, because the average wage of a legal-aid lawyer in 2009 was £25,000. At last the Government is pursuing the people swiping the nation’s wealth[…]”

Article in The Independent:

The Guardian

Ministry of Justice plans to cut court services trigger strikes

Owen Bowcott sums up the state of play after the closing of the government’s consultation last week. The Public and Commercial Services union (PCS) have called a further strike on Monday  in which lawyers will join court staff for the first time to oppose the Ministry of Justice’s proposals to contract out services and cut legal aid.

He also draws attention to the consultation response prepared by the government’s own watchdog, the Equality and Human Rights Commission (EHRC), which warned that the plans “may have an adverse impact on the right to a fair trial” and “exclude vulnerable people from access to justice”.

Justice Select Committee hearing – 3 July

Lastly Bowcott picks up on the news that Chris Grayling will appear before the Commons’ justice select committee on 3 July to answer questions about his legal aid consultation. The evidence session is open to the general public. We have been told that it is likely to be busy and people are advised to get there early to avoid disappointment.

There is also an article in The Times – Grayling’s legal aid cuts will wreck justice, England’s top judges say

And yesterday’s article in the Evening Standard – Richard Godwin: Beware of Eddie Stobart-style cut-price justice

Pictures of speakers at the demonstration – 4th June MoJ

Here are all the speakers from the demonstration of the 4th of June outside the Ministry of Justice.

Let’s get everyone on board!

After the success of the demonstration outside the Ministry of Justice last week, we are now launching into a mass operation of Flyer Distribution, to try to help raise awareness amongst the general public about the government’s proposals to “transform” legal aid and the impact these changes will have on people who have to rely on legal aid to enforce their rights, because they cannot afford to pay a lawyer privately.

Mass support

Hopefully handing out flyers will help raise awareness among people who have not heard about the changes, encourage them to sign the e petition, and spread the word further. We  want to show Mr Grayling that the country is against his proposals!

Please feel free to download the flyer and hand it out to friends, colleagues, leave some in your favourite cafe, local library, GP waiting room, in the commuter paper you leave on a train and anywhere else you can think of!

Flyer for general public