Monthly Archives: August 2013

Design4justice: the winner!

With so many strong entries, the jury´s task was not easy. After shortlisting 10 entries (see our previous post here) from over 60 submissions the real hard work started. So what exactly were the jury looking for?

We were looking for an image that looked professional and stylish, that had a distinctive look and feel to it, that was eye catching and engaged the viewer. An image that could carry the message of the campaign against the government’s proposals to change legal aid, and help us reach out to new audiences who are not aware of or who not fully understand the implications of the cuts. An image that could cut through the complexity of the proposals themselves and communicate clearly and effectively what is wrong with them, what effect they will have, and why we need to challenge them. One of the reasons the jury’s task was so hard is that the proposals will affect our justice system and society in so many different ways: by excluding people from access to justice, by making people less equal before the law, by undermining the quality of our justice system as a whole, by creating a risk of miscarriages of justice, and by making the state more powerful than its citizens.

Here’s the winner chosen by the jury:

Photography by IndyEnigma
Photography by IndyEnigma
http://www.flickr.com/photos/90817878@N08/

The jury liked the powerful simplicity of the image and the clarity with which it communicated its message. As a result of the proposals to change legal aid justice will simply be out of reach for many people.

Read more about who will be affected and how under What’s Happening?

 

Calling for submissions

Design4Justice: The Brief

NOTE: Deadline extended to 26 August 2013

We’re extending the deadline for submissions to 4pm on Monday 26th August 2013 to allow for those who need a bit more time to get creative. The winner will be announced on Tuesday 27th August 2013 – watch this space!

Create a postcard design (front only) to support the Save Justice campaign against the government’s proposals for cuts to legal aid.

The aim is to raise awareness about the cuts in new audiences by means of a postcard which will be made available for posting to the deputy Prime Minister Nick Clegg.

The design can be photography, illustration or words that evoke one of the ideas of

–       justice being denied to people, or

–       a vulnerable individual in contrast to a powerful state, or

–       lack of equality before the law (i.e. one law for the rich, one law for the poor).

Some initial ideas could be: shadow (the ordinary person in the shadow of the powerful state); a see-saw (reflecting the imbalance of power between whoever is on each end); a spider’s web (with an ordinary person caught in it and unable to move); a person gagged or somehow otherwise unable to speak or express themselves. These are just examples and are by no means prescriptive.

Justice and Equality are quite abstract concepts, which people may not readily relate to. We are looking for a striking image that will bring home to people the importance of being able to defend and protect their individual rights.

Background

The government has proposed significant changes to the way legal aid will work in the future, meaning:

– the quality of legal aid criminal defence work is likely to decrease dramatically and many legal aid criminal firms are likely to close

– legal aid will no longer be available for many people to challenge decisions made about them by local authorities, hospitals, the Home Office, etc

–  legal aid will no longer be available for people who are not lawfully in the UK and haven’t lived here lawfully for at least a year

– many prisoners will no longer be able to access legal aid to challenge decisions about their time in prison, including whether a mother should be able to care for a new baby in prison

– most migrants in indefinite immigration detention will not be able to access legal aid to help them secure their release

Although the Government proposals have been covered in all major newspapers and on TV, the current engagement is mainly from the legal profession. Other people affected are not aware of the changes and the government therefore sees it as an easy win.

Our next steps

We need to raise more awareness across various groups of the population and also push the LibDem leaders to stand up for the values of their party within the coalition Government.

To achieve this we will print 5000-10000 postcards, contact various groups across the country (e.g. from mums to students, from farmers in Cornwall to pharmacists in Cambridge, from bankers in the city to kebab sellers in the east end) and collect 25-50 signed postcards per group.

These will then be delivered to Nick Clegg by Save Justice to show the interest and participation of different groups and put pressure on him to stand up for the values of  equality, social justice, and dignity, and freedom that his party is founded on.

Submission

To submit your work for the competition, please tweet the link to @savejusticeuk with #design4justice or email us at savejusticeuk@gmail.com before 1pm Wednesday 21 August.

We will announce the jury made of up creative directors and legal professionals shortly. They will select the winning entry.

We will announce the winner by Thursday 22 August and contact them directly.

 What’s in it for you?

The postcard with your work, name and portfolio link will be printed and spread across the country and shown to various groups across England and Wales. All submissions will also be presented across all our social channels (facebook, twitter, website).

The design will be central to our campaign, which we will promote on local and national media. In whichever format used, we will always connect it to the artist’s name and portfolio.

Deadline extended to 26 August 2013

We’re extending the deadline for submissions to 4pm on Monday 26th August 2013 to allow for those who need a bit more time to get creative. The winner will be announced on Tuesday 27th August 2013 – watch this space!

Legal aid changes will fail victims of trafficking

The New Statesman published a detailed article on Monday, outlining how the Ministry of Justice’s proposed legal aid cuts will impact on victims of trafficking and victims of domestic violence. As the article explains, under the current proposals, many victims of trafficking – including many women and children – will not be able to challenge a decision not to recognise and support them as victims. Similarly, many survivors of domestic violence who don’t meet the proposed ‘residence test’ – including refugees in their first year of status – won’t be able to access any non-criminal legal aid at all, even if they need it urgently to ensure a violent partner stays away from them or because their children have been taken into care.

The MoJ’s response

The MoJ issued a swift response to the New Statesman’s article, published at 8am on 6th August. The response stresses the government’s determination to tackle the trafficking and exploitation of vulnerable men and women, but states:

The proposed legal aid reforms would not impact on trafficking victims in the way suggested. We are determined to bring down the cost of legal aid, but not at the expense of the most vulnerable. Contrary to suggestions here legal aid would continue to be available for the initial stages of a judicial review case, and where victims of trafficking were seeking to claim asylum they would be exempt from the proposed residence test. Those who did not meet this residence test would also be entitled to apply for exceptional funding“.

We believe that this statement is wrong and misleading, and that the legal aid reforms will impact hugely on the rights of victims of trafficking. Here’s why:

Victims of trafficking and asylum claims

For the government to say that victims of trafficking would be able to receive legal aid if they claimed asylum is highly misleading. It overlooks the fact that often victims of trafficking do not have an arguable asylum claim, but they do have valid grounds to be granted permission to stay in the UK for other reasons, based on their human rights or their rights under the international convention on trafficking which the UK has signed.

This is because an asylum claim requires someone to be at risk of persecution if they are sent back to their country. Often trafficking victims do not necessarily have a fear of returning home, but they still have valid reasons to be allowed to stay in the UK. Many are brought to the UK as young children, and remain here having escaped their trafficking situation, and go on to have established their own lives and relationships here. Others suffer from significant mental and physical health problems as a result of their trafficking experiences, to the extent that they would be unable to function on their own if returned to their country of origin.

If the proposals go through, for example, a young Nigerian woman trafficked to the UK for domestic servitude as a young child who manages to escape her traffickers and asks to be recognised and protected as a victim of trafficking would have no legal aid to challenge a decision that she is not a victim of trafficking; no legal aid to challenge a decision to refuse to assist her to recover; no legal aid to challenge a decision not to accommodate her with her children; no legal aid to keep her traffickers away from her should they seek to find her; and no legal aid to prevent the local authority from taking her children into care. Can the government really say the proposals will not have an impact on victims of trafficking?

Legal aid funding for the initial stages of Judicial Review

The MoJ states that under the proposals, legal aid will still be available for the initial stages of Judicial Review work. While technically correct, this statement is also misleading. It overlooks, first of all, that it will not be available for those who don’t meet the ‘residence test’, as discussed above.  More importantly, though, it overlooks the fact that in most cases a Judicial Review has to go beyond the initial stages in order for the individual bringing the case to get the remedy they need.

Let’s look briefly at the process in more detail. Currently, lawyers involved in Judicial Review work are paid to carry out work before a Judicial Review is issued. This involves deciding whether the case is worth running, and then sending a pre-action letter to the government body in question, outlining why we believe them to have done something wrong, asking them to fix it so we don’t have to go to Court, and requesting relevant documents to help us find out more about what has happened in the client’s case. Typically, these letters receive no response, and so further funding is applied for an a Judicial Review is issued. If the government body in question does respond to a pre-action letter, it is usually to outline why it doesn’t think it has done anything wrong at all, and why it doesn’t then need to fix anything.

Often, it is only once proceedings are issued, and the government body realises that if it continues to fight the case it will be likely to lose, that it backs down and settles. It’s rare for a government body to concede at the pre-action stage. If a government body knows that funding is unlikely to be granted for the client to proceed to issue Judicial Review proceedings, it can continue to ignore pre-action letters, with impunity. Is this perhaps part of the plan? See our blog post below for more on the state and Judicial Review.

Exceptional funding

The MoJ claims that ‘exceptional funding’ will be available for those who don’t meet the residence test. This is seriously misleading because in practice exceptional funding is only available in very, very few cases. In fact the Lord Chancellor’s guidance itself makes clear that the government do not think that exceptional funding should generally be granted for immigration cases (which trafficking cases would be). So how can the government claim that exceptional funding is enough to ensure access to justice for victims of trafficking?

When the government made dramatic cuts to legal aid earlier this year, removing from scope many important areas of family, housing and immigration law, among others, we were promised the same – that exceptional funding would be available for those who really need legal aid. Yet from 1 April 2013 to 18 June 2013, there were just five grants of exceptional funding (see detailed Freedom of Information request here).  The exceptional funding application form is 14 pages long and comes with 19 pages of guidance – too long for firms to be expected to do on a pro bono basis. The Public Law Project have criticised the exceptional funding regime as a ‘fig leaf, not a safeguard’.

Finally, the MoJ addresses victims of trafficking, but doesn’t specifically explain how it will protect victims of domestic violence if the proposals proceed. A British citizen escaping to a refuge in the middle of the night without any belongings; a foreign national here on a spouse visa; the wife of a European national with the automatic right to remain here under European law – how would any of these be able to prove that they meet the residence test, if they suffered domestic violence and urgently needed help?

The MoJ’s proposals will prevent victims of trafficking from being able to enforce rights they enjoy under UK law. The reforms are short-sighted, unclear on whether they will make any financial savings, and part of a wider anti-migrant ideology – let’s continue to make our opposition to them heard!

Read more

Our previous blogs on the Residence Test are here

The government’s recent defence of their proposed changes to criminal legal aid has also been criticised in today’s Guardian by the Justice Alliance and others here

The state, the citizen, and Judicial Review

What judicial review is all about

The second issue we focused our meeting with Lord McNally on, in addition to the residence test (see our previous two posts on this blog), was Judicial Review. JR is a unique kind of legal process which allows an affected individual to challenge an unlawful action of a public body, where there is no appeal or other remedy available. Thanks to JR ordinary people can hold public authorities to account for their actions. For example a family can challenge a local authority decision to refuse them emergency accommodation, a young man leaving care can challenge a decision that he no longer needs support, an asylum seeker can challenge the Home Office’s decision that her asylum claim is unfounded.

In its “Transforming legal aid” consultation, the government is proposing that lawyers should only be paid for JR cases that reach the stage where a Judge decides that a case is arguable. This is known as the ‘permission’ stage. Legal aid law firms will therefore have to carry the financial risk of undertaking judicial review cases. If a case reaches the ‘permission’ stage and a Judge says that it is an arguable case, they will be paid for all the work they have done. If, on the other hand, the case concludes before that stage is reached, or if a Judge does not grant permission for the case to go ahead, the firm will not receive any payment at all.

The government claims that these changes are necessary because they are “concerned that legal aid is being used to fund a significant number of weak cases”. The changes are projected to generate savings of £ 1 million.

Fewer weak cases or less state accountability?

At the outset of our meeting we referred Lord McNally to his recent words in response to the debate in the House of Lords in relation to the proposed legal aid changes:

“We recognise JR as an important tool of redress which balances the power of the state and we continue to believe that it is important to make legal aid available for most JR cases”. 

We put to him that we believe that far from ensuring that legal aid remains available for most JR cases, the proposals will lead to a reduction in number of JR cases being brought, because legal aid law firms, which tend to work on very tight financial margins, simply will not be able to afford to carry the financial risk. The result is that less people will be able to hold public bodies to account and public bodies will be able to act as they please, safe in knowledge that they cannot be held to account.

Lord McNally was keen to point out that bringing a reduction in number of JR cases overall is in fact “part of our intention”. He said that this particular proposal was his own idea, not Chris Grayling’s. Having noticed a “steep rise” in the number of JR cases in recent years, he asked for a “comb-through”, to make sure the system is “fit for purpose” and that it is not “used or abused by clever lawyers”.

Clearly the government is not only concerned with what it perceives as being a large number of “weak” JR cases. McNally made it clear that he believes JR is being used for purposes it was not “designed for”, and that this is what he is trying to put an end to. The examples he gave were cases where JR is used to challenge the poor administration of government departments. While this will come as no surprise to those in the field who have been following the Ministry of Justice’s ongoing reforms of the way the JR process works, it will to many others, because the Consultation paper makes no mention of its aim to reduce the overall number of JRs at all.

The government’s misleading figures

According to the Consultation, the proposals are all about trying to reduce the number of ‘weak’ JR cases. Transferring the financial risk onto the law firm is supposed to ensure that lawyers assess more carefully whether permission is likely to be granted, so that they no longer take forward weaker cases. In theory this sounds logical. The problem, as we explained to McNally, is that this completely ignores the way in which JR works in practice.

We used data we gathered from a sample of 118 JRs conducted by the Immigration department of Wilson Solicitors to show that the government’s assumption that cases that cases are weaker if permission is not granted is fundamentally incorrect. Our data shows that 48% of cases – almost half – finished before the permission stage was reached because the client and the public body reached an agreement that benefited the client. Basically, the public body accepted it had acted wrongly and made up for its wrongdoing.

Under the government’s proposals none of these cases would be paid for, despite the fact that they had been successful. As McNally himself admitted to us, these cases show that “the system is working”. Yet the government’s Consultation paper does not contain any information on how many cases end in this way. Instead, as the Public Law Project among others have argued, the government’s data is highly misleading.

Putting the state beyond the reach of the law

We cannot help but wonder: are the gaps in the government’s figures not a bit too convenient, given that McNally and Grayling have both admitted that what they are trying to do is to stop JR being used in situations they do not think it should be used? Why does the Consultation paper itself not say that this is what the reforms are intended to achieve? The combination of the government’s misleading figures and its dishonesty as to what these changes are meant to achieve create a strong impression that these reforms are nothing more than a thinly disguised attempt to limit the right of every citizen to ensure that the state is held to account for its actions, and to obtain redress when it has been wronged by a government department. But why shouldn’t a citizen be able to hold the state to account when he or she has suffered as a result of poor administration?

These issues concern us all because they go straight to the heart of the relationship between each citizen and the state, what it means to live in a democratic society, in which there is respect for the rule of law.