In April this year the Government announced far reaching proposals to change to legal aid. The proposals will have a dramatic impact on people’s access to justice in both criminal and civil issues. You can read the full Ministry of Justice “Transforming Legal Aid” proposals here and here and our summary of them is here.
We believe that if the changes to criminal legal aid are implemented they will severely undermine the quality of legal representation received by people accused of criminal offences, thereby creating a real risk of miscarriage of justice. The changes to civil legal aid will deny many of the poorest and most vulnerable people in society the means of enforcing their rights, and will mean that in many cases the Government cannot be held accountable in court for its actions. The Government plans to make these changes through secondary legislation, without a detailed debate in Parliament.
The government is proposing a ‘residence test’ for all non-criminal legal aid. To qualify for legal aid, with some exceptions, people will have to prove that they live lawfully in the UK and that they have done so for at least a year.
The residence test will mean:
- Many children and families refused support by their local authority will not be able to access legal aid to ensure they are adequately accommodated in line with the law;
- Newly-recognised refugees will have to wait a year from the date they claimed asylum to access legal aid if they are made homeless or denied healthcare, for example;
- Victims of trafficking who are not properly recognised as such will not be able to access legal aid to ensure they receive the support they need and deserve.
The residence test not only discriminates against migrants, but will also prevent many British people who cannot prove their eligibility from receiving legal aid. It will prevent anyone held unlawfully in immigration detention and anyone abused or denied adequate medical treatment while detained from seeking damages for this. This will effectively mean that the government can treat those who don’t meet the residence test as unfairly and unlawfully as it likes without being held to account – the recent discovery of sexual abuse of detainees by staff at Yarls Wood Immigration Removal Centre highlights how important it is that the state is challenged when those in its care are subject to abuse. It will also mean that those killed, harmed or detained by the British government abroad will not be able to hold the government to account for its actions.
The residence test is not about saving money; the government hasn’t suggested that any of the legal aid budget will be saved in this way. Instead, it’s likely that the proposals will cost more money, as every individual who wants legal aid for non-criminal matters will need to be checked carefully to show that they are eligible.
Read more about the residence test and how it will affect individual groups here.
Judicial Review is a legal process in which the court is asked to decide whether a government decision is lawful or not. It is an important tool to keep the government in check, and to ensure it doesn’t act outside of its powers. Judicial Review can be brought against any government body, including local councils, social services, the Home Office, the police, and prisons.
The government is seeking to limit our ability to challenge its decisions by Judicial Review, by imposing a residence test (see above), and preventing local authorities and campaigning groups and charities from bringing legal challenges to the government’s actions. This affects the ability of everyone, across the political spectrum, to stop the government acting unlawfully.
The government is also planning to change the way lawyers are paid for Judicial Review cases, meaning that many are unlikely to be paid at all if the government body in question accepts that it acted wrongly and takes steps to fix it. This is likely to mean a reduction in lawyers able to carry out Judicial Review work, resulting in a government able to act as it likes, without regard for the law or the rights of individuals.
Some examples of recent Judicial Review challenges which could not be brought under the current proposals are:
- the London Borough of Lewisham’s successful challenge to the government’s decision to reduce maternity and A&E wards at Lewisham Hospital in 2013;
- a challenge in 2012 to cuts in payment for an elderly care home in Devon which could have resulted in the home’s closure without adequate consideration for its residents, many of whom were frail and suffered from dementia;
- on ongoing challenge to the proposed HS2 rail line, criticised for proceeding without adequate consultation with local residents and consideration of the environmental impact;
- the Countryside Alliance’s attempt to prevent a ban on fox-hunting in 2004.
The government is also planning to cut legal aid for almost all prison law matters. This will mean those held in prison will be hidden from view and unable to challenge any abuse that occurs. There is particular concern that if the proposals proceed, a mother of a young baby will not be able to receive legal aid to defend a decision that her baby will be able to stay in prison with her. It will also harm the chances of prisoners rehabilitating into society because a prisoner unable to access a particular course (needed for rehabilitation) will not receive legal aid to assist in obtaining a transfer to a prison where the course is available. The Howard League, a leading organisation specialising in issues relating to prisons have expressed considerable concerns as to how this will affect the most vulnerable held in custody, and particularly children – see here.
The government is proposing to cut the fees paid to criminal lawyers by 17.5%. Legal aid firms specialising in criminal legal aid are already barely making any profit; many will simply be unable to survive such a drastic reduction in fees. Should fees be cut further and firms be forced to close, this would mean the loss of specialist lawyers who have years of expertise in criminal practice, resulting in a likely increase in miscarriages of justice, i.e. innocent people being convicted of crimes they did not do.
Overview of specific groups
We’ve created a quick overview of what the impact is on different groups of the population:
What’s happened so far?
Around 16,000 responses to the Government’s proposals were submitted by the deadline of 4 June 2013. The Government has said it will reply to the consultation responses by Autumn 2013.
The proposals attracted widespread criticism across and beyond the legal profession. You can read more about reactions to the proposals in our Press Coverage section here.
The proposals were the subject of backbench debate in Parliament on 27 June 2013. A full transcript of the debate is here. Secretary of State for Justice Chris Grayling, responsible for the proposals, did not attend. A report on the debate from Young Legal Aid Lawyers is here.
The Government issued its own response to the consultation responses on 5 September 2013. It also issued two further consultations – on Judicial Review and ‘Transforming Legal Aid: Next Steps’, on changes to criminal legal aid, with a deadline of 1 November 2013.
Read more about our campaign work so far here.
Selection of responses to the Government’s consultation
- Association of Prison Lawyers (APL) consultation response
- Anti-Trafficking Legal Project (ATLeP)
- Bingham Centre (British Institute of International and Comparative Law) consultation response
- Housing Law Practitioners Association (HLPA) consultation response
- Immigration Law Practitioners Association (ILPA) consultation response
- INQUEST and ILG (Inquest Lawyers Group) consultation response
- Legal Aid Practitioners Group (LAPG) consultation response
- Medical Justice consultation response
- Parole Board consultation response
- Prisoners Advice Service (PAS) consultation response
- Public Law Project (PLP) consultation response draft
- Shelter consultation response [residence test “clearly unlawful”]