The Birmingham six, The Guildford Four, the families of Jimmy Mubenga and Jean Charles de Menezes and Stephen Lawrence and many more have fought for justice in Britain after wrong doing by the police, local or national government. The British public has keenly followed attempts to address these injustices, which have ranged from unlawful killing to wrongful imprisonment. All of these cases depended on the availability of well-qualified, dedicated lawyers who were able to access government legal aid funds to gather evidence to right the wrongs committed by public officials or contractors against individuals resident in the UK.
Yet, given the sweeping reforms that it wants to implement with little parliamentary debate or scrutiny this autumn, the government seems convinced that the public neither loves, nor needs, legal aid ‘now it’s 64’. Thousands of people – citizens and migrants alike – could potentially suffer from miscarriages of justice in our prisons, immigration detention centres, youth offenders institutions, psychiatric units and on our streets at the hands of government agencies, from the Metropolitan Police’s anti-terrorism branch to Hillingdon Council.
Legal aid: a 64 year old tradition
Both legal aid and judicial review are currently under threat of the axe. Legal aid is the system that allows lawyers to work for people who cannot afford to pay their legal fees. It goes hand-in-hand with judicial review, the process by which ordinary people can take the government or the local government to court over a mistake or a bad decision. Together they play a crucial role in allowing ordinary people to fight for the rights to which they are entitled.
Legal aid has historically been there to protect everyone in the UK by ensuring that each individual has access to justice. The modern system was created by the Legal Advice and Assistance Act 1949 as part of a series of ‘sweeping reforms’ to the welfare state introduced by Clement Attlee’s post-war Labour government. It meant that those who could not afford their legal fees no longer had to simply gamble on the good will of lawyers for legal advice. Yet as Matt Foot, Criminal defence solicitor at Birnberg Peirce and Partners, has said in relation to the proposed reforms, ‘this government is taking us back to the 1930s.’
According to changes outlined in the reforms, in judicial review cases, legal aid will only be paid for the work carried out after the High Court grants permission for the case to proceed to a full hearing. This means that solicitors (and barristers) will have to decide whether to carry out the work for a homeless family, or a person facing removal from the UK, or a disabled client refused community care services, at the risk of not being paid for the substantial work that goes into preparing their case before such permission is granted.
Cases that settle before permission for a full hearing is granted will also not be eligible for legal aid. This means that perversely, even where the government agency backs down before the case comes to court, the lawyers, who have successfully defended their clients’ rights, will not be paid. This often happens when challenging a local government decision not to provide a service that is required, such as emergency housing, special education, adult and social care. As housing charity Shelter’s Ellie Robinson has explained, ‘Shelter advisors ask council officers to reconsider but if the local authority sticks to their guns, Shelter issues a Judicial Review. At which point either the local authority concede and accommodate the family, or the Court issues an emergency injunction forcing them to do so. The family now have a roof over their heads and are safe for the night so the Judicial Review is withdrawn.’ These cases will simply not be possible under the proposed reforms.
In defence of criminal defence
Another highly damaging aspect of the reforms is the introduction of competitive tendering for criminal defence work which will see contracts going to the cheapest bidder. There will be no safeguards to ensure that those accused of a crime are given a good quality service, and some fear that the resulting change in the way in which lawyers are paid could give them a financial incentive to get their client to plead guilty and to finish the case as early as possible.
Moreover, it is likely that outside companies who are currently used in government tendering processes – such as Eddie Stobart (yes, the lorry company), ‘TescoLaw’, or G4S – will get the government legal aid contracts rather than specialised human rights and immigration solicitors. There is a distorted logic to this kind of joined-up working. G4S is a private security company that runs the prisons and police custody roles in which many criminal legal aid clients will likely be held before and after they are advised to plead guilty.
The cumulative effect of these proposals is that they will effectively remove the government from accountability to ordinary people who are fighting for their rights, services and justice. But they will also enable the government’s vicious cuts agenda to be implemented with fewer challenges. For example, many people who are facing eviction because they haven’t been able to keep up with rent after the introduction of the bedroom tax or benefits cap, which has made them poorer. They will struggle to be able to find lawyers who will challenge local authority decisions to make them homeless.
The residence test
In addition to the targeting of individuals in the criminal justice system and those who are dependent on social housing and social care, one of the most divisive aspects of the proposed legal aid reforms is the creation of a ‘residence test’ which means that you will not be able to benefit from legal aid unless you live lawfully in the UK and have accrued at least 12 months of continuous ‘lawful residence’. This provision will exclude people who may have been in the country for several years, possibly with British children, who are waiting for an application for leave to remain to be decided by the Home Office. It will also exclude those who have been granted refugee status less than a year ago. Having one rule for migrants and one for everyone else undermines the principle of equality before the law.
Thousands of other people who will fail the new ‘residence test’ include British babies under a year old, and also people like William who tells his story in this video. William is in his 50s. He fled Liberia in the 1990s after his torture and the rape and murder of his fiancée. He has Post Traumatic Stress Disorder and bipolar disorder. Thanks to legal aid, he has sued the government for unlawful detention and won compensation. He has fought for humanitarian protection in the UK and won. The proposed changes will mean that people like William (and also the family of Jean Charles de Menezes and Jimmy Mubenga) will no longer be able to fight for justice in the UK.
The residence test will also affect survivors of trafficking and domestic violence, like Fatima who after marrying her British husband in Pakistan came to the UK to join him. She found herself exploited and controlled by her mother-in-law, who forced her to cook and clean for the whole family, banned her from working outside the home, and would not let her out alone. She finally left when she discovered that her husband was having an affair and after her mother-in-law had tried to physically attack her. In response, her husband had her arrested by falsely claiming that she had threatened to kill him and informed the UK Border Agency that their marriage had broken down in an attempt to invalidate her spouse visa. ‘Without legal aid, I don’t know what I could have done’, says the former teacher a year later. Fatima turned to the charity Southall Black Sisters, whose legal aid lawyers proved that she had been a victim of domestic violence and won her the right to remain in the UK.
Many campaigners and NGOs have been wary about campaigning for the rights of migrants to access legal aid and have simply left them out of their lobbying efforts. They are undoubtedly worried about being sullied with the vitriol and ‘unwinnability’ factor that comes with standing up for ‘illegal immigrants’. A clear example of this was the wording of a very successful e-petition: ‘The MOJ should not proceed with their plans to reduce access to justice by depriving citizens of legal aid or the right to representation by the Solicitor of their choice.’ With the residence test clearly attacking non-citizens access to legal aid, this was a contentious move. Whilst the petition was no doubt written with some urgency, and has certainly been successful in encouraging a parliamentary debate to happen, it is now crucial that migrants are not left behind by the campaign to save legal aid. The rights of migrants are so readily trampled on, and legal aid is one of the few life lines to justice for failed asylum seekers, refugees and undocumented workers.
This is why with help from Detention Action, William has just started his first petition to fight for everyone’s right to legal aid including migrants and failed asylum seekers who are not lawfully resident. Because as William says, ‘without legal aid, we have nothing, without legal aid, we are despairing at being detained with no time limit. And without legal aid more people will die either in detention or after being deported back to our torturers.’
An Ideological and populist agenda
When examining these proposals and their devastating impact, you have to conclude that upholding justice for anyone (citizens or non-citizens) is not a concern of the Secretary of State for Justice. But his concern is not cost either. The government has as-yet been unable to suggest a figure that introducing the residence test will save the taxpayer. Furthermore, new evidence from Matrix Chambers show that the government’s estimated savings of £6 million are completely dwarfed by the knock-on costs of £30 million stemming from an increase in self-representation, an increase in court costs and implications for prison safety. Matrix Chambers has also predicted that removing legal aid from almost everyone in immigration detention will cost £10.8 million alone. This is because people are likely to be held for longer if they don’t have a solicitor working on their case, applying for bail or challenging detention. As is the case for prisoners and those dependent on social care, the attack on migrants’ rights by the government is simply ideological and populist.
The British public has already faced substantial legal aid cuts targeting families, education, employment and immigration. But in the last round of cuts, legal aid for people whose lives and liberty were at stake was carefully maintained. Not any more. The government has become more and more brazen in its efforts to ensure that it is cocooned from public challenges and scrutiny, but now it has a free reign to ravage people’s lives with impunity. It is flexing the muscles which it has already used to divide and devastate our communities and lives with the cuts and reduced public services. Attempts to challenge lack of services or abuse by a public official or the police will become virtually impossible – ideal for a government seeking to place itself above challenge. This isn’t just an attack on us as individuals or communities, or even society. It’s an assault on democracy.
This article appears on Open Democracy