Amnesty International say legal aid cuts have created two-tier justice that leaves the poorest and most vulnerable out in the cold, by Emma Fitzsimons
Amnesty International has released a blistering attack on the Government’s legal aid reforms, which has led to the creation of a two-tier justice system that is increasingly closed to the most vulnerable and those in need of protection.
The report, Cuts that hurt: The impact of legal aid cuts in England on access to justice, adds useful analysis to the existing bank of evidence on the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) in two key areas: (i) the human impact of the cuts and (ii) the serious and disproportionate impact on disadvantaged groups in the UK.
Amnesty’s stated position provides:
“In human rights terms, the cuts to legal aid constitute a retrogressive measure. They were primarily motivated by a desire to reduce spending on the justice system at a time of increased fiscal pressure, but were made with insufficient regard for the potential negative and profound impacts on the protection of human rights in the UK. There is no dispute that fewer people can now access free legal help and representation in a wide range of cases; the government’s own statistics bear this out.”
Amnesty’s report draws on a range of sources, including:
- Desk research over the period October 2015 to June 2016, drawing on publicly available information, including court cases, legislation, policy documents, FOI requests, submissions to parliamentary committees, media reports and other open source materials;
Interviews with 30 individuals who were not eligible for legal aid following the cuts;
Discussions with 90 individuals or organisations who provide legal advice, information, representation, including lawyers and not-for-profit organisations, like Citizens Advice Bureaux and Law Centres; and
Shadowing volunteers for five days at the Personal Support Unit at the Royal Court of Justice and the Central Family Court.
Areas out of scope for Legal Aid
Prior to LASPO, legal aid was available for almost all areas of civil law, subject to some narrow exceptions. Since the reforms, the reverse is true, with the following areas out of scope for funding:
Debt (except where there is an immediate risk to the home);
Education (except for cases of Special Educational Needs);
Housing (exception where the home is at immediate risk; homelessness; housing disrepair that poses a serious risk to life or health and anti-social behaviour cases in the County Court);
Immigration (there are exemptions, including asylum and detention cases);
Private family law (other than where strict criteria for domestic violence or child abuse is met, or for child parties);
Welfare benefits (except for appeals on a point of law to the Upper Tribunal and onwards appeals to the Court of Appeal and Supreme Court).
Although the LASPO reforms have been in place for some time, this list nonetheless bears repeating, if only to emphasise the fact that areas of law more likely to affect the more disadvantaged in society are effectively shut out from public funding, save for narrow exceptions.
Indeed, as Amnesty notes, the difference pre and post-LASPO could not be more starkly illustrated than by reference to the hard figures. The year before the relevant provisions of LASPO came into force, legal aid was granted 925,000 cases; the year after it came in to force, assistance was given in 497,000 cases, a drop of 46 per cent.
The human impact of the legal aid cuts
Though pitched as introducing significant savings for the taxpayer, LASPO demonstrates the Government’s myopia and short-termism with respect to public funding, with cuts leading to:
Loss of early intervention because advice is received too late, with many people only able to access legal advice when matters reach crisis point, with housing benefit being one such example; and
A not-for-profit and pro bono sector breaking point, as providers are simply unable to meet the demand for free legal aid.
Arguably, the most damning part of Amnesty’s report is the criticism levied at Exceptional Case Funding (‘ECF’). Amnesty’s research finds that ECF is an inadequate safety net for the vulnerable and disadvantaged people struggling to navigate complex legal process and effectively advocate for their rights:
“Many who spoke with Amnesty International shared the view that only individuals with very serious and possibly multiple vulnerabilities would likely be eligible for ECF because of the way the system operates, particularly when considering applications for legal help, as opposed to legal representation in court. As a consequence they did not consider ECF to be a realistic option for many disadvantaged individuals, in spite of the challenges that they would have accessing, navigating and understanding the legal processes and the fact they had meritorious cases.”
Given its systemic and inherent failings, ECF simply cannot, in Amnesty’s view, act as the panacea to the wider effects the cuts to legal aid have had on access to justice.
The impact on vulnerable and marginalised groups
Unsurprisingly, given that the majority of immigration is now out of scope for legal aid, migrants and refugees face huge hurdles in accessing justice. Two key areas are highlighted by Amnesty: Article 8 ECHR and family reunification.
The Government’s justification for taking the majority of Article 8 ECHR cases out of scope for funding is based on the flawed premise that such applications are straightforward and appeals before the Tribunal are accessible for lay litigants.
Indeed, Amnesty demonstrates the problems with that view:
“..Immigration law is complex and immigration rules often change. Indeed, for this reason immigration advice is heavily regulated, which greatly limits what sources of advice and assistance are permitted in the absence of legal aid. Small errors and mistakes will lead to applications being returned or refused. Without advice, given the complexity of the law, people can be left without knowing what their legal rights and entitlements are or how to argue their case based on the current law and immigration rules.”
Without the assistance of advice and representation, such litigants can expect to encounter complex procedural rules, swathes of immigration case law and real practical difficulties in evidence gathering, thus undermining their ability to present the best possible case for remaining in the UK, and the vindication of their human right to private and family life. Many destitute applicants are turning to pro bono assistance, which simply is not sufficient to meet the costs of disbursements.
Following LASPO, refugees applying for their family to join them in the UK are no longer eligible for legal aid. Whilst litigation in the Court of Appeal1 in 2014 has meant that such cases should be eligible for ECF, there is no automatic provision of legal aid. Amnesty is calling for a reversal of that position, calling for automatic provision of legal aid. There is merit in Amnesty’s argument, given that the right to family reunification is protected in numerous international instruments.2
Children and young people are also feeling the impact of the cuts, whether as direct parties to proceedings or, more indirectly, where their best interests are at stake.
Amnesty’s central concern in the family law context is that “if a parent cannot understand the evidence requirements in a case, cannot effectively navigate the procedures and processes required, and cannot represent themselves effectively in a hearing by presenting their argument and advocating their position, judges are more likely to lack the necessary information to ensure that the outcome of a case is in the best interests of the child.”
Where children are directly affected as parties to proceedings, for example, in immigration applications where they are unaccompanied minors, they too face serious barriers to accessing justice. Amnesty estimates that the failure to provide children and vulnerable young people with automatic access to legal aid has meant that 6,000 children each year and countless young people do not have access to legal advice and representation in many areas of civil law.
Amnesty also identifies vulnerable people as being at risk from cuts, such as those with mental health issues, learning difficulties, medical conditions, alcohol and drug dependency, and language and literacy problems. While such persons may be able to access legal aid via the ECF scheme, Amnesty does not believe the regime “guarantees an effective safety net for vulnerable groups.” This, of course, leads to the risk that such individuals will face violations of their Article 6 and Article 8 procedural rights.
This is starkly illustrated by one interviewee, a father in a private family dispute, who had concerns over his child’s access to prompt medical treatment. He was initially assisted by an advice centre which has since closed due to lack of funding. Among the directions, he was required to prepare a Scott’s Schedule. As a lay litigant with learning difficulties, the process has been extremely difficult. He will attend his final hearing unrepresented this year.
Such cases demonstrate just the human, and human rights costs of the cuts. LASPO is entrenching a system of two-tier justice, wherein access to advice and representation is available only to those with sufficient means.
Amnesty concludes its report by adding its voice to calls by YLAL and others on the Government to immediately review the impact of reforms introduced by the LASPO on access to justice and protection of human rights, particularly for vulnerable and disadvantaged groups, including children and young people, people with mental health problems, people with disabilities and migrants. In addition, the report calls for the better provision of public legal education to ensure the public can effectively vindicate their rights - a worrying yet pragmatic sign of the times, given the increasing numbers of litigants without representation.
The full report is on Amnesty International's website here.
Emma Fitzsimons is a barrister at Garden Court Chambers, and a member of Young Legal Aid Lawyers.
1  EWHC 1840 (Admin)
2 See, inter alia, Article 9(1); Article 10(2) The Convention also outlines the manner in which family reunification cases should be handled,outlining that family reunification applications by a child or parent should be, “…dealt with by States Parties in a positive, humane and expeditious manner”. Notably, in similar language to the 4th Geneva Convention, the CRC calls on state parties to protect children seeking or holding refugee status and to co-operate in aiding such children in the tracing of family members for the purposes of obtaining information necessary for family reunification. See also:’Final Act of the United Nations Conference of Plenipotentiaries on the Status of Refugees and Stateless Persons’ Recommendation B