The human cost of cutting legal aid

 

The cuts to civil legal aid have created a two-tier justice system: open to those who can afford it, but, increasingly closed to the poorest, most vulnerable and those most in need of its protection.

That is the stark conclusion of ‘Cuts That Hurt’, Amnesty International’s 2016 research report into the human rights impact of the changes to civil legal aid introduced by the 2012 Legal Aid, Sentencing and Punishment of Offenders (‘LASPO’) Act. It is not one we reached lightly, and it is not an area we stepped into without careful thought. There have been many important voices – including those who have felt first hand the effects of this legislation – who have spoken out in depth about the cuts and fought hard for their reversal. Amnesty has not previously done so. However, it has been increasingly clear that we could not continue to campaign for the protection of the UK’s human rights law framework without also looking at how people access justice and enforce their rights.

The basic details (and for some, the intricacies) of the changes to civil legal aid will be very familiar to those in the sector, many of whom have been grappling with their impact for some years now. In short, LASPO amounted to a wholesale reversal of the previous system. Rather than work being in scope for legal aid unless specifically excluded, only matters explicitly included in LASPO Schedule 1 are now covered in England and Wales, save for certain exceptions and the supposed safety net of the exceptional case funding (‘ECF’) scheme.

If the goal was simply to cut the number of supported cases and ignore all knock-on costs both financial and human, the Ministry of Justice (‘MoJ’) can judge the changes a success. The year before the relevant provisions of LASPO came into force, legal aid was granted in 925,000 cases. The next year, that dropped 46% to 497,000. Dig a little deeper, and certain areas of law have been even more dramatically hit. In 2012-13, there were 88,378 welfare benefits cases which received funding. Following LASPO, that dropped to just 145 cases – a 99% reduction.

On just the bare MoJ figures to date, that’s a huge number of presumably meritorious cases where the affected individuals are likely no longer getting the help they need, or who have been shifted to the overburdened and underfunded not-for-profit sector.

Amnesty’s research aimed to get behind those numbers, and assess both the human and human rights impact.

From October 2015 to June 2016, we conducted desk research looking at the publically available information to date. We interviewed 90 individuals who provide advice, information, representation or other support to groups affected by the legal aid cuts. We also interviewed 30 individuals whose cases were no longer eligible for legal aid following the cuts and who we were able to locate through contacts in the not-for-profit advice sector. Further, we spent five days shadowing the Personal Support Unit. While important to our conclusions, that could not substitute for the key problem we faced: the difficulty in identifying what we believe are the hidden majority – those individuals who no longer receive any legal help or support at all.  It will be for the MoJ, with its commitment to reviewing the effect of the cuts, to devise a way to assess that hidden damage and speak to its full impact.

Capacity constraints led us to focus on England only, although we looked at the impact across the regions. We concentrated primarily on immigration, family and welfare benefits law, identified as priority areas through initial scoping, and documented the impact of the cuts on a number of specific groups: children and vulnerable young people, migrants and refugees, and people with additional vulnerabilities.

Our assessment was grounded in the UK’s responsibilities under international human rights law. Access to justice is a core element of the right to an effective remedy, to a fair trial and equality before the law.  Legal aid has been a significant part of how the UK has met those obligations. Without the ability to effectively request, inform or challenge decisions, rights cannot be secured. 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.”[1]

When states introduce policies likely to have a negative impact on human rights in this way, they must ensure that their decision-making process addresses and justifies that impact.

Here, it was abundantly clear that the cuts would have a serious impact on access to justice, especially for those in poverty and other vulnerable groups who are not only less able to afford private legal help but are also more likely to find themselves in the kind of situations now falling out of scope. As such, the government was under an obligation to conduct a thorough assessment of the likely effect its cuts would have and whether that was proportionate to the aim of reducing the size of the spend at the MoJ.

Regrettably, it became equally clear from our research that the government did not discharge that obligation, and that (perhaps as a result) the cuts have had a significantly detrimental effect on access to justice, and a disproportionate impact on disadvantaged and marginalised groups.

As to the inadequacy of the prior analysis, in evidence given to the parliamentary Public Affairs Committee, the Permanent Secretary of State at the MoJ made clear that the only decision to be made was where the axe would fall, not how deep the cut would be. He stated:

“…it was quite explicit from the start that we would not be able to do research in advance if we were to make the savings to which the government committed … the most critical piece of evidence that was relevant to the decision that was made was the size of the spend.”[2]

Other than some limited equality impact assessments which Amnesty does not consider came close to bearing the weight of a conclusion that the cuts were justified and proportionate, the MoJ preferred to “conduct the research on the basis of what happened to people[3] following the cuts. That is fundamentally contrary to what international human rights law requires.

The resulting changes to legal aid have made it generally much more difficult for people to access the legal advice and assistance they need, and in so doing have damaged human rights protections in England.

Firstly, it has led to the loss of specialist legal advice at a sufficiently early stage to prevent individual’s problems from escalating to crisis point. In housing, for example, the removal of legal help in relation to housing benefits challenges from scope means that rather than obtain assistance to resolve arrears and similar, problems are left to spiral towards eviction and possession proceedings. Second, the provision which remains is now highly uneven across the country, with ‘advice deserts’ in certain areas. Third, those not-for-profit providers who remain active are overburdened and under threat. Stretched to capacity and beyond by increased demand and a reduction in ability to provide services (particularly holistic services), the sector is unable to fill the yawning advice and representation gap. Nor should it be expected to do so.

The changes have also had a particularly serious impact on those least able to bear the pain.

Across all the disadvantaged groups Amnesty looked at – migrants and refugees, children and young people and those with additional vulnerabilities (such as mental or physical health problems, low levels of English or similar further barriers to engaging with the system -there were not only specific issues but common and disturbing concerns.

Particularly troubling remains the government’s insistence that there is no need for legal assistance in the kind of cases taken out of scope, whether article 8 (private and family life) or refugee family reunion cases, welfare benefits challenges or private family law cases, because of the nature of the jurisdiction and/or the issues being ‘straightforward’. Amnesty considers that view to be simply untenable. Not only is the law itself often highly complex, but legal processes are often bewildering to non-lawyers. Further, as those in practice well understand, knowing what you need to prove and how to do so is critical to success. It necessarily involves gathering the right evidence, without which a Court, no matter how empathetic, will be in difficulty. Often, that evidence (such as an independent social worker’s report in a case examining the best interest of a child) itself costs money, which post-LASPO is no longer there. Without that funding for disbursements and the right expert legal support, those seeking to advocate effectively for their rights are at a serious and often insurmountable disadvantage, or unable to engage at all in enforcing or accessing their rights.

In the case of children (and young people aged 18 to 24, who often will come into contact with the legal system during the transition to adulthood when major life changes are likely to bring problems to the surface), we saw intense frustration at the lack of provision for those having to bring their own cases, and despair from some parents and carers in cases where their children’s best interest were at stake. Since LASPO, there has been a 56% drop in social welfare cases involving 18 to 24 year old applicants. Given that statistics clearly support the argument that receiving legal advice in welfare benefits cases improves the prospects of an accurate outcome of appeals, that is highly worrying.

Further statistics suggest in all areas that as many as 6,000 children a year, and countless more vulnerable young people, are now failing to get the help they need. As one lawyer explained, “the idea that children and young people can represent themselves just does not work. This is such a vulnerable group… Without professional support they simply can’t access justice and they can’t engage with the legal process.”[4]

The government’s purported safety net, and answer to many of these concerns, is the ECF scheme. Unfortunately, Amnesty’s conclusion is that in practice it is wholly inadequate and no panacea. In theory, funding should be made available where the failure to do so would lead to a breach of the individual’s rights under the Human Rights Act 1998. In reality the scheme does not even meet this narrow aim. Quite how many people are slipping through has been difficult to assess given the methodological limitations of the research, but what evidence Amnesty has seen suggests that the numbers may be significant. Amnesty’s research strongly supports the view of Briggs J the, dissenting judge in The Director of Legal Aid Casework & The Lord Chancellor v IS (a protected party, by his litigation friend the Official Solicitor) [2016] EWCA Civ 464, who concluded the defects in ECH were systematic and that the scheme was inherently unfair.

Overall, Cuts that Hurt concludes that 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.  The introduction of these retrogressive measures has imposed a disproportionate and excessive burden on the vulnerable and most marginalised in society, further entrenching socio-economic inequalities in the justice system. With every day that passes, the human cost rises, and the risk of long term permanent damage to the structure of justice and protection of human rights in the UK increases.

Where does this leave us? Amnesty has worked with others since the publication of our report to force the government to live up to its early commitment (however inadequate) to a post-implementation review. That has now been announced. The aim must be for a sufficiently detailed assessment to inform policy changes that will reverse the discriminatory impact, remedy the damage done, and safeguard human rights going forwards. While the Bar may not be best placed to lead that fight, it must play its part, motivated not (or not solely) by the survival of its members dedicated to representing the most vulnerable in society, but by the principles of equality and fairness we strive to protect.

Rachel Logan, barrister, Law and Human Rights Programme Director, Amnesty International UK and Associate Member of Matrix Chambers.

 

[1] Report of the UN Special Rapporteur on the Independence of Judges and Lawyers,

15 March 2013, UN Doc: A/HRC/23/43

[2] Public Accounts Committee, Oral evidence: Implementing reforms to civil legal aid, HC 808, 4 December 2014

[3] Public Accounts Committee, Oral evidence: Implementing reforms to civil legal aid, HC 808, 4 December 2014. Similarly in evidence to the Justice Committee, the Minister for Justice stated: “we had to take very urgent action, and that we did do. In an ideal world, it would have been perfect to have a two-year research programme speaking to all the stakeholders and then come to a decision. Sadly, the economic situation that the Government inherited did not allow that luxury”, Justice Committee, Impact of changes to civil legal aid under Part 1 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, 12 March 2015 page 9.

[4] Senior Solicitor, specialising in children’s rights, Interview 25 November 2015.

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