“Reforming” Legal Aid to Oblivion?

We’ve just put up on our website another consultation response – this time to the MOJ consultation on the reform of Legal Aid which was due for submission last week. Apparently the MOJ were flooded with responses and as such their inbox actually crashed on the final day!

Legal issues

We’ve previously set out our key general concerns about these provisions. In this particular response we went on to highlight some of the legal problems that might arise from the proposals.

So far as the asylum support proposals go there seems to be a real risk that the provisions would not be consistent with Article 21(2) of the EU Reception Directive. This requires domestic law to make provision for access to legal assistance to pursue appeals against negative decisions- and should be read in the context of  Article 47 of the EU charter which obliges states to provide free legal assistance to those lacking sufficient means.

Of course we’ve also pointed out that other exclusions, in so far as they affect matters that fall within the the scope of Community law in any way, could also be unlawful given that  Article 47 of the EU Charter, but also EC general principles/case law on Article 6 ECHR on the provision of legal aid (which can’t ordinarily be relied upon in immigration cases) could potentially come into play.

On top of that, we’ve highlighted an issue about how these provisions sit with Article 8 ECHR in the case of overstayers with Article 8 claims who are prohibited from working/accessing benefits, but are also required to pay for tribunal fees (as they will not be entitled to legal aid).

Evidence based policy making?

Perhaps more interesting than all of the above is LSC research that we’ve dug up on the subject in the light of some of the asesrtions made in the Green Paper. The LSC has an interesting legal research centre. There’s a lot of fascinating stuff here which we heavliy relied on in our response. In particular reserach commissioned by the LSC, Causes of Action: Civil law and Social Justice found that:

  • The provision of legal aid at the beginning of a problem can save money in the long run.
  • The provision of legal aid plays a key role in reducing public expenditure overall.
  • Respondents represented at courts or tribunals do fare considerably better than those who were unrepresented.
  • Respondents who obtain advice are far more successful in securing whatever their objectives are.
  • Respondents whose advice is funded by legal aid  are more likely than others who obtained advice to secure some or all of their objectives.
  • Justiciable problems have additive effects so that each time a person encounters one justiciable  problem, they often tend to encounter others.
  • Justiciable problems directly impact on, and relate to health, education, housing, welfare, commerce, citizenship, policing and communities.
  • Telephone advice (a single gateway through telephone advice is proposed in the paper) is not a cheap alternative to face to face advice, and that this is unsuitable for certain groups- asylum seekers and immigrants happen to fit into those categories.

Civil law / social justice?

A chief problem with the Government’s approach to the question of legal aid is that it views the issue purely from a civil law perspective.  The effect of this is apparent in its impact assessment. This fails altogether to consider the wider and longer term social impacts arising from the withdrawal of legal aid, and the attendant consequences this will have for public expenditure.

As much of the previous LSC research shows, legal aid is intricately bound up with social justice/ tackling social exclusion and public expenditure. And as the excellent Richard Wilkinson and Kate Picket argue, the former has implications for the standard of living we all enjoy.

The drivers behind escalating legal aid costs

Another problem is that the Green Paper never really addresses the drivers behind legal aid expenditure. It’s no good lamenting the rising cost of a budget when there’s a constant flow of legislation, vat is increasing, tribunal fees are being introduced (to be met out of the legal aid budget where a party is eligible for legal aid), and government departments like, but by no means confined to UKBA, have a range of practices that considerably add to budgetary pressures.

We argue in our paper that a better way to address this on an institutional, and policy making level would be to adopt a cross departmental approach to budgetary cutting. We also argue that what is needed is the inrtoduction of mechanisms in the policy making process that could better focus the attention of policy makers and parliamentarians on legal aid at the time that legislation is enacted (currently policy makers/parliamentarians pretty much ignore the fairly flimsy impacts assessments that are undertaken). Something akin to the section 9 statement procedure required under the Human Rights Act,  together of course with generally more rigorous impact assessments might offer some help here.

You can access our detailed response from our website under “what’s new”.

The cuts to legal aid are just one of the issues that will be opposed by the TUC sponsored march for the alternative on 26 March in Central London. See you there?

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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