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The cuts to the civil and criminal legal aid budget

by Eirwen-Jane Pierrot at Young Legal Aid Lawyers

A mere eight days after major civil legal aid cuts came into effect, the Ministry of Justice announced its proposals to cut a further £220m from the civil and criminal legal aid budget.

The proposals should give us all cause for concern as they go far beyond hitting lawyers in the bank balance: they represent a major assault on the rule of law.

The proposals include:

- Introducing a residence test to restrict access to civil legal aid to those whocan prove that they have been lawfully resident in the UK for 12 months

- Only releasing funds for judicial reviews in those cases where a judge has granted permission to proceed with the case - meaning that legal aid will not cover any initial advice given by a solicitor or any cases where the solicitor manages to settle the case before going to court. In practice, this will mean that it will not be financially viable for these cases to be brought in the future

- Introducing a test into civil legal aid where only those cases with ‘at least a 50% per cent chance of success’ will be eligible.

Claimants in borderline cases will no longer be able to access funds, even if the case is of overwhelming public importance.

These proposals mean that many of the most vulnerable people in desperate situations will not be able to access legal aid.

Some examples of cases which will lose out are:

• A woman who has been trafficked to the UK and who through no fault of her own finds herself unlawfully in the UK will be unable to access legal aid

• A victim of domestic violence who becomes unlawfully resident because she has fled her violent partner will be unable to obtain the legal aid needed to access housing away from her abuser

• Immigration detainees, including survivors of torture and the mentally ill, will be unable to access legal aid. Families of individuals who have died in immigration detention will be unable to access legal aid to hold the state to account.

• Foreign nationals who have been subject to  abuse by British army personnel will not be able to access legal aid to hold the state to account. Binyam Mohamed, the ex-Guantanamo detainee who sued the state over its complicity in torture, would not have been able to obtain legal aid for his case had these proposals been in force at the time.  

• A solicitor who carries out substantial work on behalf of a seriously disabled man who has been unlawfully denied community care services will not receive any legal aid funding if the Local Authority agree that they were in the wrong and settle before the case gets to court.

• Difficult, complex cases will inevitably be classified as having a ‘borderline’ chance of success and will therefore be ineligible for funding.

These reforms undermine the fundamental constitutional principle that everyone is equal before the law and that people have a right to hold the state to account.

People without the money to pay privately will not be able to access a lawyer even in cases where there has been abuse of statepower or arbitrary decision making, and fundamental rights are at stake.

It is particularly concerning that the changes to judicial review are coming in a time of huge cuts in all areas. Judicial review has been a vital tool which ordinary people have used to challenge austerity policies, such as the bedroom tax and the benefits cap. So, whilst the government takes away vital services with one hand, it is removing the ability to challenge them with the other.

It is bad enough that the government is prepared to make these sacrifices for the sake of the relatively insignificant sum of £220m.

What is even worse is that it is unlikely that the savings will actually be even of that magnitude, as the government has failed to account for numerous costly side-effects. For example, the proposals will likely generate a huge number of ‘exceptional funding applications’ (the safety valve proposed by the MoJ to make funding available to the most needy).

Rather than reducing the number of cases making it to court, the government will actually likely see a massive influx of so-called ‘satellite’ litigation as vulnerable people try to challenge the boundaries of the exceptional funding criteria.

In addition, solicitors conducting judicial reviews will likely seek to recover costs from the other side in cases where they settle far more frequently than they do now, as they will receive no payment otherwise.

The ‘other side’ in judicial review claims will always be a public body. So the effect of the reforms will simply be to shunt the cost of litigation from one government department to another.

Further, many claimants, denied legal aid and in desperate need of a remedy, will plough on with their cases alone and without legal assistance. Solicitors
provide a safety valve which stops unwinnable cases getting to court. Without them, more such cases are likely to be brought, rather than less.

In addition, the judiciary has already expressed itsconcern at the amount of time and money that will be spent in dealing with cases that are poorly prepared and poorly argued.

The government has not accounted for this inevitable additional burden.   

And what of the wider economic impact?

The cases that will be most affected are those involving insufferable human vulnerability. These are cases involving the mentally ill, children, prisoners, the disabled, the hospitalised and the homeless. Litigation conducted by experienced and dedicated practitioners can prevent bad situations becoming worse.

Ensuring that social services make good, lawful decisions prevents homelessness, degradation, and illness – all of which will eventually have to be paid for by more expensive public services, such as the NHS.

The government’s proposals to cut legal aid will seriously undermine access to justice and government accountability, and is based on a false economy.

Young Legal Aid Lawyers urges you to make your concerns known by signing the petition, or writing to your MP. See here for more information: http://www.savelegalaid.co.uk/takeaction

If you're in London on Tuesday 4 June, join the demonstration to save justice:

4:30pm Ministry of Justice 102 Petty France SW1H 9AJ,

Speakers

Dinah Rose QC, Stephen Knafler QC, Liberty, Nick Armstrong (Matrix), Children’s Society, Deepti Patel (Kids Co), Martha Spurrier (Public Law Project), Sue Willman (Deighton Pierce Glynn),  Dr Juliet Cohen (Freedom From Torture)

Protest against Ministry of Justice proposals for legal aid cuts that will make government bodies less accountable, exclude vulnerable individuals including migrants and prisoners from accessing justice and destroy quality of criminal defence.

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