Tag Archives: judicial review

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).

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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.

“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.

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.