RIP Legal aid?

Ken Clarke set out his proposals for what the Guardian refers to as the most drastic cuts to legal aid in its 60 year history.

The proposals contained in the 215 page consultation document can be found here. The Consultation runs until 14 February 2011 with the intention that it becomes operational before 2012.

Immigration and asylum proposals

Yesterday’s Command Paper is pretty extensive, so we’ve just provided an initial summary of some key proposals. This is by no means an exhaustive account, and for exceptions and further detail you need to look at the Paper itself. Comments, views and additions to this are very welcome:

Scope of funding – key points

1.Removal of routine provision of Legal Help and Controlled Legal Representation for immigration matters other than for release from detention/proceedings before SIAC cases This removal covers entry clearances applications, grant/variation of leave to remain European applications, citizenship and travel documents, applications under concessions or policy outside of the Immigration Rules. Para. 4.23 of the proposals suggests that even though the right to family life may well be in play, ‘in most cases’ it would be inappropriate for funding to be granted.

2.Replacement of the exceptional funding scheme with a new scheme to provide legal aid for excluded cases where the Government is satisfied that the provision ‘of the same level of legal aid is necessary for the UK to meet its domestic and international obligations including those under ECHR’. The nature of this scheme however will not become apparrent until after decisions on the scope of funding have been made.

3.Limitations on the availability of legal aid for onward appeals to the Court of Appeal, Supreme Court and ECJ in categories of cases outside the scope of funding. This would seem to mean that the immigration matters above are outside of the legal aid scheme however if a challenge on the above immigration matters is brought by way of judicial review then that, along with further appeals to the higher courts would appear to be covered.

4.Retention of current Legal Help/CLR for asylum seekers in their applications and appeals in order to comply with EU obligations;

5.Removal of Legal Help for advice on applications for asylum support under s.4 IAA 1999. This is part of the wider removal of all welfare matters from the scope of funding.

6. Retention of Legal Help/CLR for claims brought by detainees that directly challenges detention

7. Retention of Legal Help and CLR for appeals to SIAC

8. Retention of legal aid for victims of unlawful discrimination including ‘excluded non detention immigration appeals’

Changes to eligigibility income/capital requirements – key points

1.New capital contribution scheme for Controlled Legal Representation in immigration cases. £100 payable by way of contribution where disposable capital lies between £1000.00-£3000

2.Abolition of capital passporting. In future people in receipt of benefits will have capital assessed in the same way as others for all forms of funding with the effect that if they have capital over £8000 they will be ineligible/liable to pay contributions under Certificated work

3.Abolition of pensioner and equity in capital disregard

4.Retention and extension of mortgage disregard – focus is actual not notional capital

5.Power to waive capital limits. In the case of Legal Help automatic qualification for waiver if property is worth £200,000.

6.Inclusion of ‘assets in dispute’ for CLR purposes

7.Increase in the contribution for certificated work from 20% to ‘no more than 30%’

Changes to the rates for payment – key points

1.Reduction of fees payable to lawyers/advisors by 10 % for legal aid and controlled work- applicable to hourly rates/graduated/fixed rates but not risk rates. Chapter seven covers this in detail

2.New system of fees for expert witnesses. Chapter eight covers this.

Five observations

Five things stand out about these and indeed the wider proposals. Firstly, if implemented they will lead to a significant reduction of lawyers and advisors prepared to undertake work for poor people.

Secondly, they are going to impede the ability of anyone who is not wealthy to claim their legal rights, and hold the state to account through limiting access to lawyers, tribunals and courts.

Thirdly, there appears to be cross party consensus on the need to cut the legal aid budget though the detail will no doubt be up for discussion.

Fourthly, even if one accepts that the correct approach to long term economic stability is through significant public expenditure cuts, and that it’s perfectly fine to limit a fundamental aspect of civilised living – access to tribunals and courts, there is no talk here of future reinvestment in the legal system when circumstances improve. The proposed reforms instead have a distinct air of permanence about them.

Fifthly legal aid (unlike tuition fees or housing) is not the kind of issue with wide ranging appeal or significance that is capable of whipping most of the public up into a campaigning frenzy. A quick look at the ensuing ‘parliamentary debate’ yesterday should serve as enough of an indicator here. You value legal aid only when you need it. Any campaigning around this issue is therefore going to have to be extremely savvy

About jcwi

Joint Council for the Welfare of Immigrants is a key campaigning voice in the field of immigration, asylum and nationality law and policy. It is completely independent from government funding, remaining entirely free from government influence. View all posts by jcwi

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