Proof magazine: The cuts that hurt
Amnesty International is best known for its work exposing human rights abuses in far-flung parts of the world. Here, Rachel Logan, the group’s human rights programme director, explains why Amnesty is concerned about ‘two-tier justice’ in the UK
A full version of this article appear in the latest issue of Proof Life in the Justice Gap: Why legal aid matters.
Proof is the print magazine of the Justice Gap. The latest issue features contributions from Helena Kennedy QC, Martha Spurrier, Lord Tony Gifford QC as well as journalists including the Guardian’s David Conn and Rebecca Omonira-Oyekanmi who has written an extended article reporting from the frontline of the legal aid cuts. The cover and Rebecca’s article is illustrated by the award-winning artist Simon Pemberton.
Behind the statistics, the politics and the arguments over whether legal aid costs more than it saves in the long run, sit human beings. Real people, whose lives have been dramatically and lastingly affected by the cuts to civil legal aid brought about by the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) – by their inability to access justice and enforce their rights.
Amnesty International, through its 2016 report Cuts that Hurt, wanted not only to investigate and assess the human rights impact of the changes, but also to tell the stories of the individuals and families they affect.
That proved unusually difficult.
We conducted research from October 2015 to June 2016, concentrating on the impact of the cuts on a range of disadvantaged and marginalised groups, namely children and young people (24 years old and under), migrants and refugees, and people with specific vulnerabilities which can make accessing legal procedures more difficult such as mental health problems or disabilities.
We primarily assessed immigration, family and welfare benefits law, identified as priority areas through initial scoping. In those areas, with the help of providers in the not-for-profit sector, we were able to locate and interview a number of individuals whose cases had been affected by the cuts (interviewing 30 such people as well as 90 legal services providers across England).
However, those were necessarily the people being supported by those agencies or connected to them in some way. We were simply unable to trace and access the silent majority (and majority we believe they are) who have been unable to obtain support from anyone at all.
How many these people are, and the effect the cuts have had on their lives, is a question that needs urgent attention. The difficulty in identifying these cases, and the absolute need to do so, is another reason why the government’s promised review of the impact of the cuts must be properly resourced and properly scoped.
Amnesty researchers spent five days shadowing the personal support unit at the Royal Courts of Justice and the central family court.
That provided vital but limited insight into the challenges facing those without legal representation, who are often up against highly experienced barristers and an impenetrable set of court rules and processes.
Much more research is needed, however, and we hope the government is aware of the scale and importance of the task at hand. It is deeply regrettable that analysis has been left so late and that the timescale for review is now so short, but we hope that both ministers and the House of Commons’ justice select committee will steer a thorough and effective process that will underpin serious positive change to the current system of provision.
Such change is critical. It is critical because, as Amnesty concluded, the current situation is unsustainable. It is creating a two-tier justice system. Access to justice has been undermined and fundamentally weakened by the cuts to civil legal aid, in breach of the UK’s international human rights obligations.
Access to justice is a core element of the rights to an effective remedy, to a fair trial and equality before the law, and has long been underpinned by legal aid. It is simply impossible to secure rights without the ability to effectively request, inform or challenge decisions, and legal aid makes that possible for those who cannot otherwise engage.
As the UN Special Rapporteur on the Independence of Judges and Lawyers explained in 2013:
Legal aid is an essential component of a fair and efficient justice system founded on the rule of law. It is also a right in itself and an essential precondition for the exercise and enjoyment of a number of human rights, including the right to a fair trial and the right to an effective remedy.
Further, while it was obvious to many prior to LASPO that its impact on access to justice would be serious, especially for disadvantaged and marginalised groups, the government failed to discharge its obligation under international human rights
principles properly to assess that likely effect and weight it up against its aims before the policy was introduced. Perhaps as a result, the disproportionate impact the cuts were likely to have (and have now had) on the poor and vulnerable was simply pushed aside. Quite apart from the broad negative effect of the changes, including the exclusion of those without means from proper legal support and such outcomes as the loss of specialist early advice, the creation of ‘advice deserts’ and the overburdening of the not for profit sector, the effect of the cuts has been particularly severe for those least able to bear the strain.
The human toll is significant.
One woman Amnesty spoke to, Sarah, was facing going to court unrepresented in a private family law case concerning child access arrangements. She told us that she had so far been unable to access any free legal advice on her case and was deeply anxious about the upcoming hearing. She had wanted to avoid going to court, but without the right advice she did not know what her options were. ‘It’s all taken a huge toll on me, it is incredibly stressful and that in turn has to impact on my children,’ she said.
Another woman, Hannah, at the family court explained: ‘I have to go to court on my own and I am so worried about them misinterpreting me, that I won’t be able to explain the situation properly. It’s so scary the idea that I have to go to court not know- ing what to say and face a barrister, face a judge, knowing what to say and when I should say it… . When I go to court I have to cross-examine my ex. That terrifies me. I have so many sleepless nights. If I lose I know I will blame myself. It’s because I wasn’t good enough, but then I think how can I be good enough when I’m up against a barrister. I just don’t know if I can do it on my own and I have looked and asked everywhere for help but every- thing needs money and I don’t have it. So what am I meant to do?’
David, a refugee from the Congo in his early 40s whose status was recognised in 2013, had been trying to prepare an application for family reunion for his wife, children and niece to join him. He told Amnesty how important it is that he is now getting some help, and why that matters to their lives.
He said: ‘I could not do this on my own. My case is complicated because I have to show why my niece needs to come. But she has no other family apart from us, the rest of her family were killed so she needs to be here, she needs to be with all of us. Without help I would have nothing, I would not have the chance to be with my family. Everyone should get help. You can’t do this by yourself. It’s important to have help to bring family here otherwise nothing is good anymore.’
The loss of early advice has been particularly problematic, meaning issues are left to escalate, with devastating effects on individuals. Following LASPO, legal help in relation to housing benefits challenges is no longer funded by legal aid.
James lives in a housing association property and had been in and out of work. He told Amnesty that his changing situation, combined with the stress he was under, meant he did not claim the housing benefits to which he was entitled. He therefore fell into rent arrears amounting to thousands of pounds. James was not eligible for free legal help to try and resolve these initial problems. He only sought help when he was facing eviction, for which he was entitled to legal aid. He told Amnesty International: ‘It was such a stressful time, I couldn’t sleep with the eviction hanging over me. I was facing being made homeless.’
After an initial struggle to find a solicitor to take the case at short notice, the case was adjourned, giving him time to find legal representation. His solicitor was able to get the eviction halted. Had he been able to access early legal help to advise him on the underlying housing benefits problem this situation may well have been avoided altogether.
The government has sought to rely on its exceptional case funding scheme as providing a safety net for vulnerable and disadvantaged people affected in this way by the cuts. It is wholly inadequate. There remain considerable barriers to access, particularly for unrepresented applicants, which include systemic disincentives for legal providers to submit exceptional case funding applications. The more isolated an individual is, the harder it is for them to find help. The evidence suggests that significant numbers of people have slipped or are slipping through the net.
Amnesty interviewed a woman called Jane whose case exemplified some of these difficulties with exceptional case funding. Living in the UK for over 10 years but from West Africa, she has four children born in the UK and was trying to regularise the family’s immigration status. The eldest is a British citizen, and two of the younger sons have autistic spectrum disorder requiring substantial round the clock care due to developmental delays (one of the children is non-verbal).
Jane told Amnesty she is particularly scared about the discrimination and harmful impact that her two children could face because of their disabilities if they were removed from the UK, where they have lived all their lives. Jane and her family have been living in severe poverty, including periods of homelessness sleeping on night buses while Jane was pregnant. In 2014 Jane tried to get legal help to resolve their immigration status. She said she rang the legal aid telephone gateway where, after great difficulty navigating through the system, she was eventually given a list of solicitors. All of the solicitors she phoned told her she was not entitled to legal aid and so they could not take her case. Jane told Amnesty she could not afford to pay: ‘How could I afford a lawyer? The little money I had was spent on bus passes and sandwiches for the kids.’
The stress on Jane and her children has been severe. ‘One day my son had to call an ambulance for me. I totally broke down. I was really sick. I couldn’t even lift my hand. I lay on the sofa and couldn’t move. My son was 10. He’s able to understand. I kept trying to tell him I’m OK but he sat beside me. I fell asleep and when I woke around midnight he was still there watching me, he’d covered me with a blanket.’ He called an ambulance and they ‘asked me who I had, who could help. I told them I had no one.’
Jane’s case is legally complex and the additional emotional stresses make it difficult for her to navigate the legal process. She also required expert evidence, including an independent social worker report, to address the best interests and needs of the children. Her only possibility of accessing legal aid was through exceptional case funding. An NGO working with families in extreme poverty was able to refer Jane to a law centre to make an ECF application on her behalf. That application was then refused in December 2015. Her case was referred on to another law centre which decided to resubmit an application for funding on Jane’s behalf. In July 2016 the Home Office finally reversed its initial decision with respect to Jane and her family, but not until the family had already undergone significant suffering.
Jane’s case is not an isolated instance but emblematic of the failings of the exceptional case funding scheme. It also hints at the kinds of difficulties which are likely to be being faced by those who have not been able to access help from providers.
This is not a sustainable situation. Nor is it acceptable. The approach the government has taken to legal aid is having both a serious negative structural impact on the civil justice system, and a serious negative impact on the lives of large numbers of the most vulnerable in society. It is inconsistent with the requirements of its international human rights commitments. It is time for serious change.
The names in this report have been changed
This article first appeared on July 24, 2017