Monthly Archives: July 2013

McNally and the residence test – is it ideological?

We raised some of our concerns about the residence test with Lord McNally at our meeting Tuesday. Lord McNally was generous with his time and appeared genuinely interested in our discussions. Here’s what we told him, and his response:

The residence test: A ‘commonsense’ test?

Our two clients both gave really powerful examples at the meeting of the impact the residence test would have on refugees, and in particular on those seeking to make a ‘fresh’ asylum claim, detainees, and those needing legal aid in the first year following a grant of permission to stay in the UK (see our blogpost of 23 July 2013 on this below).

It’s unjust…

We told Lord McNally that, while we understand that the proposals intend to prevent those who don’t have a strong connection to the UK from accessing legal aid, our concern is that the residence test is also likely to exclude many British people and those born here or who have lived here since childhood. We gave him a few examples to think about: a British citizen unlawfully evicted by the local authority, losing all  belongings in the process; a British citizen escaping domestic violence to a refuge with none of her ID documents, seeking a non-molestation order to keep a violent ex-partner away from her; a child born in the UK to foreign national parents has been refused accommodation and support as a care leaver. We explained that such people would be unable to meet the residence test, or unable to prove that they do, even if they are in urgent need of legal assistance.

We reminded Lord McNally of other examples of vulnerable individuals who wouldn’t qualify for legal aid under the proposals, including many children and parents in care proceedings; victims of trafficking; and destitute children whose families are in need of accommodation and support.

…and unworkable.

We explained to Lord McNally why the residence test is also largely unworkable. We know from our own practice that immigration law is extremely complex and frequently changing. It’s possible for someone to have a residence permit in their passport but to actually not be here lawfully – such as the spouse of a European national, where the European national has returned home, for example. Equally, it’s possible not to have a valid residence permit or visa but to still be here lawfully – because you have an outstanding application with the Home Office to extend your visa or because your rights come automatically from EEA law, for example.

This will mean that legal aid lawyers approached by potential clients often won’t know if the clients meet the residence test or not. In reality, this will mean that even many people who meet the residence test won’t be able to access legal redress, because the lawyer they approach can’t be sure they meet the residence test, and won’t be able to grant legal aid unless they can prove that they do.

Championing the freedom, dignity and well-being of individuals?

We also raised one final, hugely important impact of the residence test: almost none of those held indefinitely in immigration detention will be able to access legal aid to challenge their detention, if the proposals are implemented. We asked Lord McNally how the Liberal Democrats, a party whose very constitution describes them as championing ‘the freedom, dignity and well-being of individuals’, could allow the indefinite detention of almost everyone in the detention estate, without access to the law.


We reminded Lord McNally that the consultation paper shows no predicted savings to the legal aid budget likely to be made by the residence test. There are likely, however, to be additional costs in implementing it – in administering applications for exceptional funding, for example (see our blogpost of 10 July 2013 for more on this). We asked Lord McNally why he’s planning to implement a measure which may bring about additional costs, without determining whether it will in fact save any money?

Lord McNally’s response

In response, Lord McNally didn’t address the residence test directly, but told us that every country has to have an immigration policy, and that it is hard to get this right. He told us that, as policitians, he and the coalition government see that immigration ranks second in people’s concerns about the UK currently. He accepted that some of this was ‘fed by malicious and misleading media’ but said the problems of the world cannot be solved by the UK having a liberal immigration policy.  He went on the say that he is trying make changes to legal aid while avoiding the worst injustices.

Lord McNally addressed our client Laila, who was held in detention for two periods totalling eight months before being granted refugee status, and said that people like her, who had never committed a crime in their lives, should not be held in detention. We welcome this extremely positive comment and hope to see this reflected in any future decisions regarding legal aid for those in detention.

We reminded Lord McNally of the government’s pre-LASPO promises, that legal aid would be kept for the most vulnerable, including detainees and victims of domestic violence, and asked why he was now excluding the same people from accessing help. He told us, ‘that’s why you should keep lobbying’. We assured him that we would!


Finally, we asked Lord McNally if, as the residence test was conceived as a way to address the public’s apparent concerns about immigration, and is unlikely to save any of the legal aid budget, it is in fact ideological?  Lord McNally told us that he was aware he had to be very careful in the world of Twitter (he’s right!) and that certain parts of the coalition think the residence test is a confidence-building measure, but not ‘us’.

A further consultation in September

Lord McNally concluded by confirming Mr Grayling’s earlier statement that there is to be a further consultation on the proposals in September. We asked if this was solely in relation to crime, and he confirmed there would be ‘some other statements at the same time about some other areas’.

“If I hadn’t had legal aid I would be dead now”

This morning we went to meet Lord McNally, Minister of State for Justice, with two women who have received legal aid. We wanted the Minister to hear from people who have received legal aid directly what it means to them. As we were waiting to enter the Ministry of Justice we spotted Chris Grayling, so we hand delivered the clients’ letters to him too.

Letter to Mr Grayling
Delivering Laila and Grace’s letters to Grayling

Laila’s story – fighting to be safe from persecution

Laila's letter to the Ministers
Laila’s letter to the Ministers

“I came to this country from Somalia to seek protection. When I made my asylum claim I was put in detention and my case was processed in the Fast Track system. Everything happened so quickly: after just two weeks my case had been refused. The Home Office did not even allow me time to get any evidence to support my case. I did not speak any English then and I did not really understand what was happening. Later I found a legal aid lawyer who helped me to make a fresh asylum claim. My lawyer helped me to get a medical report which was evidence of the scars and the Post Traumatic Stress Disorder that I have because of the rape and torture I suffered in Somalia. At first the Home Office refused to look at my new evidence and I had to start a judicial review case against them. Eventually the Home Office accepted that I had made a valid fresh asylum claim, and eventually I was recognised as a Refugee. Without legal aid I think I would be dead because I would have been sent back to Somalia.”

Grace’s story – protection from domestic violence

“I first came to this country with my ex husband. He is a very violent man. He abused and beat me and our children terribly in my country and in the United Kingdom. While I was seeking asylum in this country I had to apply for a non-molestation order against him. Everyday I lived in fear of him. My heart was pounding in my hand. I went to the police but they could not protect me. My legal aid lawyer advised me I could apply for a non molestation order from the court. We made the application and the Judge granted the order.

If it hadn’t been for the help I got through legal aid I would have committed suicide.  I was so unwell and scared then that I did not know my left from my right. I was so in fear of the violence of this man that I was thinking of killing myself. Legal aid saved mine and my childrens’ life”.

What the legal aid changes would mean for Laila and Grace

The government’s proposals to introduce a residence test for civil legal aid would mean that an asylum seeker like Laila whose case had initially been refused would not be able to receive legal aid to make a second (‘fresh’) asylum claim. We believe that this will mean that thousands of people will be at risk of being returned to countries where they risk being raped, tortured or killed.

The government’s proposals also mean that someone who has been recognised as a Refugee will not be able to receive legal aid until 12 months after they were granted status. This means that if Grace had had to apply for a non molestation order in the first year after she was recognised as a Refugee – rather than while her asyum claim was ongoing – she would not be able to get any legal aid.

The right to asylum and the need for legal aid

The government consultation recognises that asylum seekers are among the most vulnerable people in society, and says that is why legal aid will still be available for people seeking asylum for the first time. But we can see no justification for cutting legal aid from people making fresh asylum applications. Often such applications are made after there have been changes in the conditions in the asylum seeker’s home country, or after there has been a change in law, or when someone gets new evidence which supports their case. In 2010 for example, the House of Lords decided that it was wrong to expect someone seeking asylum on the grounds of their sexuality to have to go back to their country and simply be ‘discrete’. This landmark judgement meant that many people made successful fresh asylum claims.

We also don’t see how the government’s decision to exclude Refugees from receiving legal aid until they have had status for at least 12 months can be justified. The government says that legal aid should only be available for people who have a ‘strong connection’ to the UK, which it has defined as 12 months lawful residence. But if an exception is made for people seeking asylum, why should the clock be set back to day one when an asylum seeker is actually recognized as a Refugee?

Lord McNally’s reaction to Grace and Laila’s stories

At our meeting today, Lord McNally said it had been “extremely helpful” to hear Laila and Grace’s personal testimony. He accepted that problems such as needing a non molestation order against a violent ex partner require urgent solutions, and that a Refugee in this situation simply cannot wait for 12 months until they would meet the residence test. He stressed that both areas are still under discussion and that he wants to make savings to the legal aid budget without impacting on the most vulnerable. We found his response encouraging, and we hope it signals a change in the government’s thinking  on legal aid changes in relation to the residence test and its application to asylum seekers.

Who has faith in legal aid?

On 7 November 2012 the BBC reported that Justice Secretary Chris Grayling was “concerned” about public confidence in the legal aid system, and that he had ordered an   “immediate examination of aspects of the system that affect its credibility with the public”. Only a few months later,  Mr Grayling appeared to have made up his mind about how we, the public, feel about legal aid. In the introduction to the government’s consultation on “Transforming legal aid” on 9 April 2013, Mr Grayling announced that the legal aid system had “lost much of its credibility with the public”. The radical measures he is proposing are “designed to restore the public’s faith in the system”.  Public confidence in legal aid requires boosting, he said, and his proposals will achieve that while saving costs at the same time.

Support for legal aid

But has ‘the public’ really lost so much confidence in legal aid? Here’s a quick look at the evidence on either side of the argument. In a survey commissioned by the Bar Council and carried out by ComRes in which a representative sample of 2,033 British adults were interviewed, 67% said that legal aid is “a price worth paying to ensure we have a fair society, regardless of its cost”. 68% agreed that at less than 0.5% of annual Government spending, legal aid is “a worthwhile investment in our basic freedoms”. On the other side of the argument the Government has not produced any evidence to support its argument about the loss of public confidence in the legal aid system.

The government’s lack of evidence

In fact the Government has repeatedly refused a request made by under the Freedom of Information Act  for information on the examination into the public’s confidence in legal aid announced by Mr Grayling in November 2012 . The request for a copy of “the terms of reference of this investigation, and any internal correspondence relating to it” was first refused on 15 March 2013  on the grounds that  “Ministers and officials are still in the process of formulating the relevant policy” in relation to the “legal aid credibility review”.  The request was renewed once the consultation period ended on 4 June 2013, but was refused again on 10 July 2013 for the same reason. The response explained that “the review of public confidence in the legal aid system is still under development”.

So while there is evidence suggesting that the public supports the legal aid system, there doesn’t appear to be any  to support the Government’s view that the system has lost its credibility with the public. This is very concerning, given the fact that the Government is using this argument to justify changes that will have such serious consequences on many aspects of our social and legal system. Major charities and professional bodies, including many working for the Government have raised concerns about how the proposals will undermine the quality of criminal defence and create a risk of miscarriages of justice, prevent Government agencies from being legally held to account for their wrongdoings, excluding some members of society from being able to have their legal rights enforced.

Join us at the Rally for Legal Aid on 30th July from 4.30pm to show your support for legal aid! Download the flyer here 

Chris Grayling v the Tax Payer – Round 1

On 3rd July last week Chris Grayling, the Lord Chancellor and Secretary of State for Justice, gave evidence to the Justice Select Committee on his proposals to transform criminal and civil legal aid. Mr Grayling made a point of saying that his first priority was to ‘meet the strictures that the Treasury has put upon him’. The budget is tight, and he has to make cuts. Being a politician, Mr Grayling was keen to say that he is “open to discussion”  because he “wants to get it right”. At the same time though, he made it clear that he actually has very little room for manoeuvre. Savings simply have to be made. Legal aid is tax payer’s money after all.

It would appear then that Mr Grayling has not read the number-crunching done by a barrister at Matrix Chambers, Dr Nick Armstrong. In a briefing note published on 24th June 2013, Nick Armstrong looks at the proposals to change civil legal aid, which the government say will achieve £6m in savings. He concludes that on a conservative estimate the proposals are in fact likely to generate on-costs of nearly £30m. The full briefing note is well worth a read, but here’s a summary of some key points.

Creating costs, not making savings

Prison law

  • Restricting legal aid for prison law, so that it is no longer available for prisoners seeking to challenge decisions relating to their treatment in prison, their categorisation, and resettlement issues will cause delays in people being released from prison. The tax payer will have to bear the significant costs of keeping someone in prison for longer than is actually necessary;
  • The government’s suggestion that problems experienced by prisoners should be dealt with in the prisons complaints system and by the Prisons and Probation Ombudsman (rather than in the courts, thanks to legal aid) will mean that the costs of these regimes will increase as more people fall back on using them. The tax payer will have to pay for the cost of Ombudsman complaints, which are actually much higher than a solicitor’s fixed fee;

The Residence Test

  • Introducing a system where people who are not in the UK lawfully, and who have not been in the UK lawfully for at least 12 months at some point in the past are not abe to receive legal aid will be very expensive because it will take time, and therefore cost money, for a lawyer to assess whether a client meets the test. The tax payer will have to pay for the time it takes to carry out this assessment, and for any challenges to it;
  • Allowing legal aid for people who don’t meet the test if there are ‘exceptional’ circumstances will mean that the tax payer will have to pay for exceptional funding applications to be considered by the Legal Aid Agency, and for any challenges to its decisions to refuse exceptional funding;
  • Preventing almost all people who are held in immigration detention centres from getting legal aid for applications to be released will mean they are likely to be detained for longer. The tax payer will have to bear the considerable cost of depriving someone of their freedom.

Judicial Review

  • The government plans to only pay for judicial review applications if  they reach a certain stage, known as ‘permission’ will mean that lawyers will have an incentive to make the case go on to this stage, even where it might not be necessary, because they need to get paid for the work they do.
  • Lawyers are also more likely to push for the court to make an order for the defendant (the public body who is defending the case for example a Local Authority, or the Secretary of State for the Home Department) to pay costs of the application, if there is no legal aid available. If the Court makes a ‘costs order’ another government department will have to pay up, but it is still the tax payer who will foot the bill.

What should the tax payer pay for?

Mr Grayling is right to say that there are some things the tax payer should not have to pay for. But he is wrong about what these things are. He says the tax payer should not have to pay for legal aid when some people (prisoners, migrants, or other groups that he thinks are unpopular) are being treated in a way that might be unlawful and want to enforce their rights under UK law. We think the tax payer should not have to pay for reforms that will create far more expenses than the savings they make. Especially not when the cost to people’s lives – people who are often the most disadvantaged in our society – and to our justice system as a whole are so high.

Legal Aid Day on 30th July 2013: a celebration and a protest

The birth of Legal aid

The 30th July 2013 marks the anniversary of the day the Legal Advice and Assistance Act 1949 came into force, the Act of Parliament that marked the beginning of the provision of legal aid in England and Wales. It is the anniversary of the day that the provision of free legal advice and representation to people who cannot afford to pay for a private lawyer and whose cases have merit became a cornerstone of the welfare state. Where previous schemes had operated on a charitable basis only, the Rushcliffe Committee report whose advice the Atlee government followed, recommended that free access to justice for people with a low income should be funded by the state. The report stated: “Many people of moderate means […] may suddenly find themselves in urgent need of help for this special purpose. In our view, people in this position should be able to get the help they need…”.

In fact the principles and values that inspire the provision of legal aid in order to ensure equality before the law can be traced back much further to the Magna Carta of 1215, which stated “we will not deny or defer to any man either justice or right”.

A party and a protest

The Justice Alliance,  an umbrella group of organisations opposed to the Coalition government’s plans to ‘transform’ legal aid has called for 30th July to be a day of action across England and Wales aimed at celebrating legal aid and protesting against the  government’s  plans. In London, an event is being planned from 4.30pm, outside the Old Bailey. Please save the date and clear your diaries to make this the biggest, loudest and most publicised show of opposition to government’s plans that will effectively dismantle legal aid as a pillar of the welfare state, by preventing the most vulnerable people in our society from being able to enforce their rights, destroying the quality of the criminal defence, and making public bodies less accountable for their actions!

The Justice Alliance

This newly formed umbrella group brings together legal organisations, charities, community groups, grass roots and other campaigning groups, trade unions and individuals who oppose the government’s plans to change legal aid. So far some 12 partners have joined the movement, including Liberty, Amnesty International, the London Criminal Courts Solicitors Association (LCCSA), the Howards League for Penal Reform, Defend the Right to Protest. Many more are expected to join over the coming weeks and months as the campaign against the legal aid changes gathers momentum and coordination.

Legal aid update – what’s been happening this week?

An eventful and exciting week for those concerned by the current legal aid proposals (and that should be everyone). Here’s a summary of the last week’s main events:

House of Commons backbench debate

The backbench debate held on Thursday 27 June 2013 at the House of Commons was requested by MPs David Lammy (Labour, Tottenham) and Sarah Teather (Lib Dem, Brent Central) and was attended by over 30 MPs, with opposition to the proposals from across the political spectrum. You can watch the debate here and read the Hansard transcript here. The debate was described by the Speaker as ‘extremely heavily subscribed’ with Members limited to five – and later four – minutes each. Members repeatedly called for a further debate to discuss the proposals in more depth, showing the level of interest and concern across parties and constituencies. It’s not too late to write to your MP to raise concerns on your behalf.

E Petition reaches 100,000 and more

The Save UK Justice E Petition set up by Rachel Bentley reached the 100,000 mark on Friday 28 June 2013 and now has over 101,500 signatures. It’s not too late to sign if you haven’t already – the more signatures there are, the clearer the country’s concerns about the proposals.

MoJ deleting responses without reading them?

Also on Friday 28 June 2013 the MoJ apparently began sending out emails advising some respondents to the consultation that their emailed responses had been deleted without being read. In response to the Law Society’s concerns about this, the MoJ has said that this is ‘an IT glitch’ and that the problem ‘is not widespread’; the MoJ also reassures us by tweet: ‘Just to confirm that no message containing a legal aid consultation response is being deleted unread’. So that’s probably OK, then.  We look forward to a response from the MoJ to a Freedom of Information request asking how many responses were deleted. We’re told that some of those affected have asked the MoJ for a copy of their own response back, just in case.

Is Grayling listening…?

Chris Grayling has confirmed today in a letter to the Chair of the Justice Committee that he expects to amend the controversial proposal under which defendants would be unable to choose their lawyer. Here’s the story in today’s Guardian and the Bar Council’s response. A small concession, but let’s hope this means the MoJ is genuinely open to listening to responses to the consultation, and to alternatives (and that he’ll soon see the light on Judicial Review, the residence test, and Price Competitive Tendering, among others).

City lawyers join the opposition

And City law firms have today also spoken out to oppose the MoJ’s legal aid proposals, which they say ‘pose a potentially irreversible risk to the standards and reputation of English justice’, in a letter to the Law Society from the Chair of the City of London Law Society (CLLS). The CLLS raises concerns in the same letter that plans to limit legal aid for Judicial Review would be ‘particularly damaging for the country’s reputation’. Read the Law Society’s related article here.

What’s Next?

Chris Grayling gives evidence to the Justice Select Committee this Wednesday 3 July 2013 at 9:30am. Watch this space and follow us on Twitter @savejusticeuk