Monthly Archives: September 2013

Postcards for Justice

 

Following on from the design4justice competition, we have printed 10,000 copies of the winning postcard and we need your help to get as many people as possible to sign them and return them to us by 15th November 2013. We will then deliver them to Nick Clegg  in eye catching media ‘stunt’.

 Justice Ambassadors

We are recruiting ‘ambassadors’ to encourage groups of people to sign the postcards and send them back to us. It will be important that we engage with as many different and broadly representative groups as possible. Mr Clegg is aware that lawyers are very concerned about the proposed cuts to legal aid. But it might surprise him to learn that say higher education students in Sheffield, nurses in Birmingham, teachers in Cardiff etc. are also very concerned.

 Legal Aid Needs You!

If you think you can reach groups of people who would be willing to take up this cause, please join us and become a SAVE JUSTICE AMBASSADOR. We will send you an ‘ambassadors’ pack with the post-cards and further details. We will pay for all postage too – so  it will be really easy. We would also encourage people to email and/or tweet pictures of them and their groups signing the postcards which we will re-tweet and post on our website.

For now, all you have to do now is tell us your details (including a contact number), and what kind of people/group you think you might be able to get to sign the postcards. Do email us with any questions you may have savejusticeuk@gmail.com

The law must not stop at prison gates

On 5th September the government announced that it intends to go ahead with the vast majority of the cuts to legal aid for prisoners that it proposed in April this year in the “Transforming legal aid” consultation. The Chief Executive of The Howard League, a national charity working for less crime, safer communities and less people in prison has described the government’s plans as “profoundly unfair”. She warned that they may lead to a “collapse of justice” within prisons, as prisoners will not get the help they need to rehabilitate successfully, and abuse they suffer in prisons will remain hidden. The specialist Association of Prison Lawyers warned that the plans would have a wider impact on society too: our communities are likely to be less safe, as prisoners may be released without having done the courses they need to, or without a home to go, which makes them more likely to re-offend.

The cuts to legal aid for prisoners

So what cuts are the government making, and why? Prisoners will no longer enjoy the right to legal advice and representation when they have a problem relating to:

  • how they are treated in prison, for example if they have suffered abuse, or been denied appropriate medical care;
  • the separation of mothers and babies;
  • being held in segregated isolation;
  • how they are categorised according to the severity of their crime and the risk they pose if release, which affects the conditions they are held in;
  • having access to rehabilitation courses;
  • what conditions are imposed as part of their license once they are released;
  • what arrangements are made for their resettlement on release;
  • all except the more serious disciplinary matters.

The only kinds of cases for which legal aid will remain available are those relating to the length of time a prisoner spends in prison.

Saving money? Public confidence?

The government initially argued that these cuts – like the much wider cuts to legal aid that they are part of – were necessary to restore public confidence in the legal aid system and to bear down on its costs. Both these arguments were met with widespread criticism. Legal aid is already only ever available for prisoners if they pass a financial means assessment, and if their case has enough merit. The government has not provided any evidence that the public lack confidence in how the system works. The savings that the government expect to make by cutting legal aid for most prison law cases is minimal; and in fact the cuts are likely to increased costs as people remain in prison for longer than is necessary, and resort to the far more expensive Ombudsman scheme in the absence of legal help.

What rights do prisoners deserve?

More recently the government’s real reasons for cutting legal aid for prisoners have become clear. Giving evidence to the Justice Select Committee on 3rd July, the Lord Chancellor Chris Grayling made no pretences about what these cuts are about. “It’s ideological” he said. He simply does not believe that “people in our prisons should be able to get legal aid to go to court”. That’s pretty much all he had to say on the subject. The government’s response to the consultation paper puts it slightly less bluntly: the cases for which legal aid will no longer be available are ‘not of sufficient priority’ to ‘justify the use of public money’.

The government says that the complaints system is sufficient to deal with prisoners’ problems, and if it is not that they can make a further complaint to the Ombudsman. Yet, the independent Inspectorate of Prisons has found that the complaints system “cannot be entirely relied on to consistently resolve prisoner complaints and concerns in a fair way”. This is especially true for prisoners with disabilities or mental health issues, which, as the Law Society points out are “a significant proportion of prisoners”, as well as for children and young adults, who are often “not used to making complaints and fear reprisals if they do”, according to a report from the Ministry of Justice and the Department for Children, Schools and Families. Moreover, as the Association of Prison Lawyers points out, the complaints system is not independent and is often not effective, because is carried out by prison staff who are not experts in complex legal issues.

Undermining prisoners’ rehabilitation and the safety of society

The government’s plans to deny legal aid to prisoners for the majority of problems they may face speaks volumes about what this government thinks about their place in society, their rights and futures. The widely accepted research which shows that prisoners are a particularly vulnerable and disadvantaged group within society, who are disproportionately likely to suffer from mental health problems, and who require particular support and protection, is ignored. The Ministry of Justice’s own commitment to work towards the rehabilitation of prisoners has become secondary to the message that this government is being ‘tough’ on people who have committed crimes.

These changes matter to us all. Firstly, because the measure of our society is the way we treat its most disadvantaged members. Like it or not, this includes people in prison, who are overwhelmingly more likely to have suffered abuse, or witnessed violence at home, or been taken into care when growing up. Prisoners do deserve to have access to justice to ensure that they can rehabilitate successfully and do not suffer abuse when they are serving their sentence. These changes also matter to us all on a practical level because important rehabilitative steps that protect the public and reduce re-offending will not be taken. Inevitably this will lead to a greater burden on the tax payer, rather than achieve any savings.

The government plans to introduce these changes in late 2013, without a proper debate in Parliament. We must act now to change them.

All change: MoJ reconsiders legal aid proposals

On 5 September 2013, the Ministry of Justice announced its own response to the 16,000 responses to the public consultation on proposals to ‘transform’ legal aid, which had closed on 4 June 2013.  The response confirms the government will not now proceed with several of its original plans, and makes a significant number of other key concessions. It also introduces further consultations on criminal legal aid and judicial review.

Criminal legal aid

Plans to award contracts for provision of criminal legal aid based on price alone have been abandoned, in response to concerns that this would have a negative impact on quality of provision and would significantly reduce the number of providers. The government had also previously confirmed that it would not proceed with its plans to deny defendants a choice of legal aid defence lawyer. It still intends to impose a financial eligibility threshold for Crown Court trials.

The government has issued a further consultation with alternatives it believes will reduce the criminal legal aid budget. The deadline for responses is 18 October 2013. Under the new proposals, firms with a legal aid contract would be able to represent an unlimited number of ‘own’ clients, instructed outside of the police station and court duty schemes. Firms would need to bid for a share of the ‘duty’ rota work in their geographical area, with new contracts beginning in Spring 2015. A phased reduction in fees of 8.75% in early 2014 followed by a further reduction of 8.75% (of current rates) in Spring 2015 is also proposed, along with two alternative proposals for criminal advocacy fees.

The ‘Residence Test’ for non-criminal legal aid

The government intends to proceed with its plan to impose a ‘residence test’ for non-criminal legal aid eligibility. Only those living lawfully in the UK and who have done so for at least a year, now or at any time in the past, will qualify.

Some important exceptions were announced in the recent response to the consultation. It was already confirmed in the consultation paper that legal aid would remain available (for all non-criminal matters) for those pursing an initial asylum claim. The new concessions mean that legal aid will now remain available for those in immigration detention or held under the Mental Health Act 1983 seeking to secure their release, for failed asylum-seekers wishing to make a further (‘fresh’) asylum claim, for victims of trafficking, victims of domestic violence and forced marriage, for cases involving the protection of children, and for appeals heard by the Special Immigration Appeals Commission. Children under the age of twelve months who can prove they are lawfully in the UK will not need to clock up a year’s lawful residence before they are eligible. The period of residence for asylum-seekers who are granted refugee status will be ‘back-dated’ to the date they first claimed asylum. A break of up to thirty days in lawful residence in the twelve-month period would be allowed.

The government will confirm what evidence will be required to show that an individual meets the residence test in secondary legislation and guidance, once issued, to take effect in early 2014.

These concessions are welcome, but fail to recognise not only that a residence test will prevent many vulnerable people from challenging decisions to make them homeless; to refuse them community care support; to refuse to accept them as a child and support them as such; to refuse to accept them as a victim of trafficking (since the exception only applies once an individual has been recognised as such), and others. The plans also fail to reflect that many vulnerable British individuals – and those lawfully resident here – may be unable to prove that they meet the residence test. Read more about this here.

Judicial Review

The government intends to proceed with plans to remove legal aid for cases whose merits are initially assessed as borderline, and to proceed with cuts to fees in civil cases, with the small exception of fees for London-based interpreters.

A further consultation on proposals for changes to Judicial Review was issued on 6 September 2013.

The government intends to proceed with its plans that lawyers will not be paid for Judicial Review work until and unless the case proceeds beyond the initial stage and are granted permission to continue. In recognition of the fact that many cases settle before reaching this permission decision – often because the government body challenged accepts it has made a mistake and agrees to put it right – the government proposes to allow the Legal Aid Agency to pay these initial costs on a discretionary basis, as long as the lawyer has attempted to obtain the costs of the litigation from the government body concerned and that the case can be considered to have been worth running.

Other proposals outlined in the new consultation include:

  • Establishing a specialist tribunal to deal with challenges to government planning decisions, rather than processing such cases through Judicial Review in the High Court;
  • Preventing local authorities from bringing legal challenges to government decisions  on national infrastructure projects;
  • Removing legal aid for Judicial Review of planning decisions where an individual is at immediate risk of losing their home (legal aid remains unavailable for      challenges to other planning decisions);
  • Preventing campaigning groups from bringing legal challenges to government decisions (with the exception of environmental groups) and limiting the potential for interested expert groups from acting as ‘interveners’ in the course of proceedings;
  • Attempts to speed up challenges to government decisions made without complying with its duties to first consult those affected by its decisions. The government proposes two alternatives for this: (i) an assessment at an early stage of whether the decision would have been made differently had it complied with these duties; or (ii) provisions for Judges to dismiss cases at an early stage where it is ‘reasonably clear’ that the decision would not have been made differently had the government complied with its duties;
  • Removing from Judicial Review challenges to decisions made by a government body without adequately considering the extent to which its decisions will discriminate      against minority groups, including disabled people and minority ethnic groups;
  • Provision for wasted costs orders to be brought against individual lawyers in a      wider range of situations than is currently allowed, for example against lawyers who bring Judicial Review cases which are later found to be without merit.
  • Allowing the court wider powers to limit the amount of costs a Judicial Review claimant will be able to seek from a defendant if the claim succeeds.
  • Making third parties who wish to intervene in litigation (to provide an expert      opinion, for example) liable for their own costs, including their own legal costs.
  • Widening the type of appeals which can bypass the Court of Appeal to be heard      directly in the Supreme Court, to include cases ‘of national importance or which raise significant issues’. This could include, for example, the deportation of an individual considered to be a national security risk (such as Abu Qatada) and nationally important infrastructure projects (such as HS2).

The deadline for responses to the Judicial Review consultation is 1 November 2013.

Prison law

The government intends to proceed with its plans to remove most aspects of prison law from eligibility for legal aid. Funding will remain for proceedings before a Parole Board where the board has the power to direct release; and for matters where the dates of sentence calculation and release dates are disputed. Prison law contracts will not now be solely awarded to firms with a criminal defence legal aid contract.

The Howard League for Prison Reform outlines here, the devastating impact these proposals are likely to have on children and young people in the criminal justice system.

What’s next?

The Joint Commission on Human Rights has called for written evidence of the likely human rights implications of the legal aid proposals, and the deadline for this is fast approaching, on 27 September 2013. Read the inquiry and submit your evidence here.

The further consultation on criminal legal aid closes on 18 October 2013 and the consultation on Judicial Review closes on 1 November 2013.

In the meantime, let’s keep up the pressure. See our What Can I Do? page for actions to take now to raise awareness of the government’s proposals.

Read more…

… on the new proposals here (The Guardian), here (Sunday Mirror),  here (Liberty), here (Legal Aid Handbook) and here (Open Democracy).

…on civil legal aid here (Legal Action Group).

…on Judicial Review here (UK Human Rights Blog) and here (Euro Rights Blog).