LEGAL AID CHANGES ARE UNLAWFUL –finds leading QC Michael Fordham

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Marchers with their warning on the March 2011 TUC demonstration against the Coalition’s cuts
Marchers with their warning on the March 2011 TUC demonstration against the Coalition’s cuts

A legal opinion by a leading QC has found that the Government’s proposed changes to legal aid – for which the consultation closed this week – are unlawful.

The opinion, prepared by leading public lawyer Michael Fordham QC, argues that the proposed ‘residency test’ would amount to unlawful discrimination against non-nationals.

NGOs (non-governmental organisations) including Reprieve, Liberty, Mind, the Public Law Project and Shelter say that, if implemented, the residency test would have disastrous consequences for vulnerable individuals and a catastrophic impact on NGOs’ ability to ensure state accountability.

The residency test would prevent people accessing legal aid unless they are lawfully resident in the UK and have been continuously resident for a period of twelve months at any time prior to application.

The test would therefore prevent the victims of illegal UK Government activity overseas – such as complicity in torture or CIA drone strikes – from being able to hold ministers accountable for their part in their mistreatment.

This would apply even if the case was brought by a British national not currently resident in the country – for example, because they continued to be held in a foreign prison.

The residency test is one of a number of proposed changes announced in April of this year in a government consultation document called Transforming Legal Aid: delivering a more credible and efficient system.

However, the proposals themselves have already been heavily criticised by lawyers, judges and civil society as lacking in credibility.

The opinion published on Wednesday identifies a ‘paucity in reasoning and the absence of anything approaching a proper assessment of its implications’.

Kat Craig, Legal Director of legal action charity Reprieve which does not directly benefit from legal aid funding, commented on how her organisation nonetheless felt compelled to act.

She said: ‘In the last five years alone many cases brought by non-UK residents have exposed horrific abuses by state agents, including torture and murder.

‘This proposal is a crude and discriminatory measure by the state to immunise itself from further embarrassment.’

Ravi Low-Beer of Public Law Project (PLP), and coordinator of NGO coalition PLINGO, said: ‘This proposal contravenes the principles on which our democracy is built, including decisions by our highest courts that everyone within the UK should enjoy equal protection of our laws.

‘These cases don’t just benefit the individuals bringing them, they are an essential check and balance on government action and so benefit everyone.’

John Gallagher of homelessness and housing charity Shelter said: ‘If these proposals go through, they will remove a vital safety net that prevents families becoming homeless.

‘No-one should be in any doubt that if homeless and destitute people have no-one to turn to when they are rejected by the agencies who should be helping them, we could see families sleeping on the streets.’

Shami Chakrabarti of Liberty said: ‘Laws without access to advice and representation are a dead letter and an empty threat, leaving the most vulnerable in our country open to abuse and neglect.

‘Politicians are quick to call the lawyers when they find themselves in trouble.

‘Why won’t they allow the same help for ordinary people.’

Government legal aid proposals will also prevent trafficked children accessing justice.

Child victims of trafficking could be denied access to legal representation and unable to challenge unlawful decisions that put them at risk if legal aid proposals go ahead, ECPAT UK warned.

ECPAT UK is concerned that proposals in the Government’s consultation paper Transforming Legal Aid: Delivering a more credible and efficient system will prevent trafficked children accessing legal aid because of the proposed ‘residence test’.

Under the proposal, civil legal aid would only be available to those who were ‘lawfully resident’ in the UK for a 12-month period.

Child victims of trafficking would invariably not be lawfully present in the UK as they have been trafficked against their will for the purposes of exploitation in the UK.

The Government has made an exception in the proposals for those claiming asylum, but not all victims of trafficking make asylum claims, particularly those trafficked from within the EU, who make up a large proportion of children trafficked to the UK.

In 2011, 489 trafficked children were identified from 43 different countries: 20% were from Romania and 9% from Slovakia.

Children trafficked from within the EU who are in the UK for a period of 12 months would be highly unlikely to be able to provide evidence of this if they are victims of trafficking.

Also included in the proposals are plans to curb the number of judicial review applications by only allowing payment for lawyers bringing challenges if permission is later granted by the Courts.

ECPAT UK fears this financial risk will discourage lawyers from taking on complex cases, such as trafficking, altogether, despite their importance, denying the most vulnerable children access to justice.

Judicial review is an essential safeguard against public authorities acting unlawfully and the primary means of challenging Government action.

Some applications for judicial review are urgent and a case may need to be brought within hours/days with constantly evolving circumstances, for example, where a child victim of trafficking is denied appropriate and secure accommodation, despite the significant risk of being retrafficked, often within days, if not hours.

Child victims of trafficking require legal aid to challenge public authorities acting unlawfully, which is unfortunately not an uncommon situation for many children ECPAT UK encounters.

Victims can currently use this process to challenge wrongful decisions about whether they are a victim of trafficking or not or to bring an appeal if they have been convicted of a crime that they committed as a direct result of being trafficked.

Chloe Setter, Advocacy Officer of ECPAT UK, said: ‘It is a totally unworkable and unreasonable proposal to expect any child, particularly those who have been trafficked and exploited, to provide evidence of their lawful presence in this country.

‘This is a task for lawyers, not children, and such a burden should not be unfairly placed on those who are vulnerable and particularly those who had no choice whatsoever in their being present “unlawfully” in the UK.

‘To also remove a trafficked child’s ability to challenge public authorities acting unlawfully will result in an unfair inequality of arms between the state and the individual child subject to its power.

‘Those children who have been exploited and abused, have particular vulnerabilities that create distinct barriers to their ability to access justice and have their voices heard.

‘If this essential tool is removed, we believe the Government will breach the rights of victims under key trafficking legislation and will put thousands of children at risk of further harm and exploitation.’

Meanwhile, a ‘snapshot survey’ by Unite of 60 legal and advice workplaces across the UK in the wake of last year’s Legal Aid, Sentencing and Punishment of Offenders Act, found that further cuts to legal aid will result in many legal organisations facing closure.

A third of organisations said they were fearful that they will not survive the next two years.

Unite national officer for the not for profit sector, Sally Kosky said: ‘The survey results are shocking.

‘Ninety-three of those surveyed said that their organisation had experienced increased demand since the coalition took office, while 95 per cent had experienced cuts to funding over the last two years.

‘Of those, 79 per cent had experienced cuts to legal aid funding with a further 44 per cent experiencing reductions from local government, which itself is experiencing swingeing cuts from Whitehall.

‘What is frightening is that should Chris Grayling succeed in imposing a new round of legal aid cuts, the choice for those seeking justice will be narrowed even further as many legal aid organisations already face an uncertain future.

‘Legal providers are on their knees – the cuts already imposed should be reversed and those in the pipeline cancelled.

‘Comments from the survey highlight that these cuts are a false economy as clients and costs are simply being transferred to other parts of the public sector.

‘These re-emerge as mental health problems, in the criminal justice system, as evictions and homelessness, and with children not going to school.

‘Others point out that unresolved cases, such as on immigration issues end up costing the public purse much more than if they were dealt with early-on through good advice and legal support.’

In its submission to the Ministry of Justice consultation, Unite said that it was wholly against the proposals which would amount to ‘a catastrophic attack on access to justice for the poorest and most vulnerable members of society’.

Unite said its opposition to the planned cuts to the criminal case legal aid budget in England and Wales dovetails with the criticism by retired judge, Sir Anthony Hooper who said it would have a major impact on people who needed lawyers with specialist expertise.