Welcome to our update of the latest legal aid and access to justice news from October 2020
Black Legal Professionals Experiences of Racism in English Courts:
Barristers, Alexandra Wilson (author of In Black and White) and Natasha Shotunde have been mistaken for the defendant in court and have spoken out against racism in English courts.
Natasha has established the Black Barristers Network which provides support for practising black barristers and pupils. She was surprised that, as a black barrister, she constantly needed to justify her existence at work.
Black barristers make up only 1.1% of Queen’s Counsel at the bar. Professor Leslie Thomas QC, of London-based Garden Court Chambers, was recently appointed the first black Professor of Law at Gresham’s College. He says there are few workplaces that lack diversity more than the courts and that the bias is implicit and unconscious.
A Judicial Office spokesman said there was an appropriate grievance procedure for complaints for magistrates, judges, colleagues and staff and stated; “it is fundamental to the ethos of all judges and magistrates to treat everyone equally and with respect.”
Kevin Sadler (chief executive of HM Courts and Tribunals Service - HMCTS) tweeted his condemnation of the “unacceptable behaviour” and promised that he would urgently investigate the role of court staff. HMCTS also stated that “there is no place for discrimination anywhere in society.” The Society of Asian Lawyers also tweeted their findings that “from our polls on Monday for our event one third of lawyers attending who appear in court have been mistaken for the defendant. Enough is enough.”
Ministry of Justice says A Drop in Applications for Exceptional Case Funding (ECF) for the first time in years is due to the Pandemic:
ECF is the legal safety net whose purpose is to ensure access to legal aid where a failure to do so would breach an individual’s human rights. The Ministry of Justice have published statistics showing that applications had dropped by 23% in 2020 compared to the same period last year. The scheme has long been classed as ineffectual.
The Public Law Project’s (PLP) updated report suggests the pandemic is the reason for the decline in applications, considering their steady rise since 2014/15. According to the report, 60% of legal aid providers believed the pandemic had directly impacted their ability to make ECF applications.
PLP wrote to the Lord Chancellor on 16 April 2020 to request changes be made to the scheme to accommodate the impact of the pandemic. On 10 May 2020, Alex Chalk MP replied setting out measures which the Ministry of Justice had introduced including:
- The relaxation of evidence requirements
- Use of electronic signatures
- Email submission of evidence
- Halting pursuit of outstanding debts owed to the Legal Aid Agency (LAA)
- Regular meetings with stakeholders.
However, PLP found that 80% of legal aid providers were unaware of the implementation of these measures by the LAA in response to the pandemic.
The 3 providers who were aware, expressed concerns that these measures were insufficient in addressing ECF application problems. 73% of respondents believe that more needs to be done to improve accessibility to the ECF scheme during the pandemic. Constant review by the LAA of the ECF scheme in ensuring flexibility over the winter is recommended.
The Barriers to Accessing ECF and the Benefits of Placing Immigration Cases Back Under Article 8 ECHR:
The Legal Aid Sentencing and Punishment of Offenders Act 2012 (LASPO) came into effect in 2013. Most immigration matters were removed from the legal aid domain. The ECF scheme was introduced by LASPO, ensuring that individuals could access legal aid where faced with a breach of their human rights. Unfortunately, access to ECF remains a challenge despite the PLP’s efforts.
There are practical barriers faced when applying and the scheme places a burden on legal aid providers. The Ministry of Justice highlights this as an area of law seeing a big increase in ECF applications. There were 2,525 immigration applications made in 2019/20, over 80% were successful. However, where grant applications for immigration are high, legal aid may be needed to prevent a breach of human rights.
Bringing immigration cases back under Article 8 of the ECHR would ease the administrative burden on providers and improve accessibility of legal aid. The JCHR has also recommended this be considered by the Government. Doing so would reduce inaccessibility of immigration advice, which the ECF scheme compounds making it difficult to secure a legal provider for cases that fall within the legal aid scope, for example, in South-West England.
Bringing Article 8 cases into scope would remove a layer of Government decision-making, be more economical and improve access to justice.
SEND Tribunal ECF Applications Supported by PLP:
On 2nd October 2020 the LAA granted Exceptional Case Funding (ECF) for representation in the SEND Tribunal. The grant was made to a client represented by GT Stewarts Solicitors & Advocates in the education law team, for representation in a Complex Education Health and Care Plan (EHCP) appeal. The client was a parent of a child with Special Educational Needs who was not able to represent herself at the hearing. PLP is supporting education law Legal Aid providers in making applications for SEND Tribunal ECF. Previous grants have been provided to clients of Simpson Millar and Coram Children’s Legal Centre.
Despite improvements to the ECF scheme since its introduction, it remains a complex process for advisers in acquiring legal aid for their clients.
Government Departments Outsourced Workers Full Sick Pay Ends whilst Coronavirus Cases Rise
A number of Government departments, including the Ministry of Justice, scrapped full sick pay protection for outsourced workers due to the Coronavirus pandemic at a time when Coronavirus cases were rising again.
According to the Office of National Statistics ‘elementary’ workers (including cleaners, waiting staff and security guards), are most likely to die from COVID, with 21.4 deaths per 100, 000 males. Men working as security guards had 1 of the highest rates with 45.7 deaths per 100, 000. These are some of the outsourcing-heavy sectors most likely to have migrant workers.
The ‘Dying for Sick Pay’ campaign ran by The Public and Commercial Services Union (PCS) exposes a 2 tier treatment of workers at the Ministry of Justice and other Government departments. It argues that the pandemic is showing full sick pay should be given to workers for 6 months after falling ill, followed by half pay for the second 6 months. This gives outsourced workers equal sick pay rights to the directly employed civil service colleagues they work alongside. One Government worker stated that he faced either statutory sick pay which would not cover his family’s living costs, or putting himself at risk by working against medical advice.
Sharon Leslie of PCS says, “Even with the availability of full sick pay some outsourcing companies are failing to provide it either unbeknown to workers or because workers are too afraid to challenge it.”
This puts outsourced workers at a greater risk of falling ill due to the pandemic, because these individuals need to continue to work in order to be able to afford their families a living.
Implications of the Automated Administration of the EU Settlement Scheme:
Joe Tomlinson considered replacing human public officials with automated systems in a quest for a more efficient digital state.
The purpose of the EU Settlement Scheme (EUSS) is to allow EU Citizens to remain resident in the UK after Brexit, however, it brings with it the need for automated administration.
The implementation of said automated administration will determine the efficiency of administration. It has the potential to:
- Speed waiting times for applications,
- Reduce Government’s administration costs,
- Cost the taxpayer less.
The UK’s withdrawal from the EU has become a catalyst in digital administration. The UK Government claims the EUSS will “set the tone for the design and values of the new immigration system that we will implement from 2021.”
This is a new and experimental template for digital administration, possessing potentially far-reaching implications for the future of Government. The template has benefits but also raises concerns about the administrative justice system and requires more robust safeguards.
Between 2004 and 2017 the foreign-born population in the UK doubled from 5.3 million to 9.4 million. This explains why certainty on immigration status of EU citizens was a key priority for UK-EU negotiations under Article 50 of the Treaty of the European Union.
This template is incomplete, meaning it contains risks and its wide application is not yet recommended. Any amendments should be adopted with caution, because an incorrect immigration decision can devastate individuals and their families and have a knock-on effect onto wider society and the economy.
Joe Tomlinson points to minimising this risk when amending the EUSS by ensuring the scheme is:
- Declarative not constitutive,
- Provides physical proof of settled status,
- Amendments must be fully debated with the adoption of a precautionary principle.
The Supreme Court Rules that the Right to Justice is Absolute and Inviolable:
In Medical Justice v Home Secretary  EWCA Civ 1338 Case No C2/2019/2478 the Appellant contended that the Secretary of State’s policy (Judicial Reviews and Injunctions Policy –JRI) for removing individuals without the right to enter or remain in the UK was unlawful. Those who fell within the scope of the policy could be removed with only between 72 hours to 7 days’ notice that they may be removed without further warning at any time within the next three months. Lord Justice Coulson stated that the policy “does not allow sufficient opportunity for the individual to challenge (in court or tribunal) any adverse decision […]”. The Court of Appeal ruled that the right to access the court is an absolute and inviolable right.
It is submitted that the notice period is too short for those affected to instruct lawyers to make representations that leave to enter or remain should be granted. It is inevitable that many negative decisions affecting individuals’ right to remain, and their removal, would be made after the notice period has ended. This results in the risk of immediate removal of individuals without an adequate opportunity to challenge the decision before a court.
YLAL Evidence Based Submission for Independent Review of Administration Law:
On 31 July 2020 a Government Review (Independent Review of Administrative Law) to consider the options for reform to the Judicial Review (JR) process was established.
On 7 September 2020 it launched a call for evidence in how well JR balances the legitimate interest in citizens being able to challenge the lawfulness of executive action with the role of the executive in carrying on Government business.
YLAL has undertaken 2 evidence gathering exercises as part of the process:
- On 23 September 2020 a virtual roundtable discussion about the review was held.
- Between 29 September 2020 and 16 October 2020, YLAL conducted a survey of legal aid lawyers about how JR operates and submitted the Independent Review of Administration Law in October.
This evidence highlighted that:
1. JR facilitates effective governance and it has a vital ‘protective role’ in securing urgently needed relief for people in crisis.
2. It operates differently when the defendant is a central Government department.
3. There would be fewer JRs if public authorities made better decisions and engaged with claimants from an earlier stage.
4. It needs to be made more accessible.
5. There is a greater role for dispute resolution.
We are very grateful to YLAL member Chloe Darcy for this month's update and Sarah Mohammed for editing. If you would like to contribue to YLAL's legal aid news updates, email firstname.lastname@example.org