These include the removal from scope of anyone who is unable to prove at least 12-months’ lawful residence in the UK, and the removal of funding for prison law cases involving anything but claims under Articles 5 or 6 of the European Convention on Human Rights (ECHR). Also suggested is the denial of funding for judicial review claims that, for whatever reason, don’t make it past the permission stage, and for judicial review claims deemed ‘borderline’.
- The picture ‘Darkness Angels’ is by an Anonymous prisoner at HM Prison and Young Offenders Institution Holloway and was exhibited at last year’s ‘Free’ exhibition, marking the 50th anniversary celebration for the Koestler Trust.
The evidence sessions were clear: the biggest victims of these proposals are children, care leavers, victims of sexual abuse and human trafficking – some of society’s most vulnerable people, for whom legal aid provides an indispensable foundation of support without which many may be placed at future risk of harm.
A sea change
From a time when legal aid covered all that wasn’t expressly excluded, prior to April 2013, to a future where legal aid covers only what has been expressly included under the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO), we have reached what Dr Nick Armstrong of Matrix chambers described as a ‘sea change’ in legal aid funding. Now, almost no one gets funding, except where, by s.10 of LASPO (the exceptional case funding regime), an individual’s inability to bring a claim effectively or fairly may result in a breach of Article 6 ECHR.
Martha Spurrier, a barrister at the Public Law Project, quickly revealed how ineffective this regime is: for one, a miniscule fraction of applications have thus far been accepted for funding and not one litigant in person has been successful, some of the very people the exception was designed to help. The problems are tragically simple, as Martha Spurrier noted: if your particular vulnerability precludes you from effectively representing yourself, it’s likely to preclude you from effectively applying for exceptional funding as well. And, as she noted, a Freedom of Information Act request revealed that there’s in fact no training for people operating what the government says is the crucial safety valve by which the problems of LASPO and the new proposals will be solved.
Baroness Helena Kennedy queried whether other exceptions built into the new proposals might step in to assist. She received a strong denial, illustrated with a deeply worrying example. Childcare proceedings are one such exception to the residence test. But what if a child runs away from home and seeks the accommodation and protection to which they’re entitled under the Children Act? Unless that child takes with them documents sufficient to prove their 12-month residence in the UK, they won’t receive legal aid if support is wrongly denied them.
Similarly threatened are those with other community care problems, for which there is again no exception: where residence cannot be proved, no legal aid will be provided to help any child seeking assistance for his or her special educational needs. Moreover, even where, for example, victims of child trafficking are receiving legal aid for issues directly related to their plight, they may still need help to access accommodation and other basic services as they attempt to regularise their status. So where assistance with one of a child’s legal issues may fall within scope, that help will then be undermined by the lack of legal aid for the problems that remain.
Or what if the government body tasked with deciding whether or not you’re a victim of trafficking gets it wrong? How will a child challenge his or her failure to be deemed a member of the class of persons for whom exceptions are made? Alistair Pitblado, the Official Solicitor to the Senior Courts, recounted his experience representing young people in disputes as to age and the difficulties they face in providing evidence to the authorities where it’s needed.
Children in prison
Dr Hywel Francis opened the issue of legal aid in prison law cases by recounting the words of Chris Grayling, that there will no longer be any legal aid funding for those who simply don’t like their prison. But, as the Committee heard, his statement was hugely misleading: rather, prisoners may need to move prison to secure access to specific programs, their fulfilment of which is essential for rehabilitation. As Laura Janes, Acting Legal Director for the Howard League for Penal Reform, told the Committee, the availability of sexual offences rehabilitation across the country is extremely limited, and so the conditions in a young offender’s institution could truly mean the difference between safe and unsafe release in the future.
Key to the government’s case for the removal of funding for prison law is the supposed adequacy of prisons’ internal complaints mechanisms. Nick Hardwick, the Chief Inspector of Prisons, was highly critical. Despite what he deemed the necessity that prisoners themselves perceive the process as fair, inspections have allegedly revealed two thirds of individuals examined don’t perceive it as such. More worrying still, one out of ten young people studied refused to lodge complaints out of fear of reprisals from prison staff.
Ignoring why people need help
Tim Buley, of Landmark chambers, stated that there is a ‘powerful argument’ that the residence test would breach Article 14, prohibiting discrimination in the enjoyment of any ECHR rights, it being a refusal of access to legal aid simply on the basis of an individual’s residency status. But as Ilona Pinter, Policy Adviser at the Children’s Society, later pointed out, this would also be a further breach of the UK’s obligations under Article 2 of the United Nations Convention on the Rights of the Child: children must not be discriminated against on the basis of their status or that of their parents.
Simon Hughes asked whether there might be a ‘legitimate aim’, consistent with past principle and policy, in restricting the scope of certain public services to individuals of more than 12-months residence in the UK. Dr Russell Hargrave, Asylum Aid’s Communications & Public Affairs Officer, demonstrated the fundamental error of such a suggestion: it completely ignores why individuals need help. Take child victims of trafficking, suffering in this country through no fault of their own and often unlikely to be able to prove their residence even if it’s over 12-months in length. And so, as Dr Hargrave pithily remarked, the very reasons for which they’ll most likely fail the test are the very reasons for which they need help in the first place.
The importance of legal aid lawyers
Laura Janes noted the role of a legal aid lawyer is not only in enforcing a child’s legal rights in court, but clarifying both their rights and entitlements with authorities – especially where prison services, for example, are under immense pressure and young people are, as a result, routinely ill-advised. As Dr Russell Hargave said, take the Home Office, that has received multiple judicial criticism for its systemic bureaucratic failings: what will children or their families do, for instance, when the Home Office tells them that their passports have been lost, thereafter stripped of the only documents they have to prove their eligibility for legal aid?
Alison Harvey also noted the effect that the residence test will have on what can already be excruciating delay for families in need of support. She noted the death of an asylum seeker and her son in Westminster last year from a brain infection and starvation, respectively: their dire circumstances revealed the destitution into which many families are thrown by government neglect and delay.
A threat to us all
Liberal Democrat MP Simon Hughes wondered whether it was fair to say that, if everyone within the jurisdiction of the UK has certain rights, they should be able to enforce them. Allison Harvey, Legal Director of the Immigration Law Practitioners’ Association, was unequivocal: if you can’t enforce your rights, the rule of law simply doesn’t run.
We’ve only recounted the proposals’ effects on society’s most vulnerable members. Adult migrants, adult prisoners, and a host of other ordinary men and women are seriously threatened by the changes too. Successive governments have pushed us further and further towards the point at which legal assistance for the poor and marginalised will disappear. The cuts that our legal system faces are the worst of a terrible lot, but must not be understood as a fait accompli by the Lord Chancellor. As the JCHR heard last Wednesday, we have every reason to stop him. Let’s act now before it’s too late.