Tag Archives: women

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.

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

“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.

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

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

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

Victims of Domestic Violence

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

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

Care proceedings and abduction

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

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

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

Representation of children

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

Reducing the legal aid budget? 

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

Act now!

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