Legal aid news – November 2016

Welcome to our update of the latest legal aid and access to justice news from November 2016, featuring the interim report by Labour’s Bach Commission on Access to Justice, a welcome U-turn by the government on immigration and asylum tribunal fees and much more.

Labour legal aid review: the Bach Commission on Access to Justice, chaired by Labour peer Lord Bach, published its interim report on the crisis in access to justice on 25 November. The report proposed that a set of minimum standards should be established to ensure that access to justice is a reality for all, but did not recommend that the legal aid cuts introduced by LASPO should be reversed in full. YLAL welcomes the report as an important first step for Labour in developing a principled policy to improve access to justice and looks forward to engaging further with the Commission as it develops its ideas before publishing its final report next year.

YLAL co-chair Ollie wrote this article for The Justice Gap about the Bach Commission’s interim report (also published on HuffPost UK and Legal Voice), and there was coverage in The Independent, The Guardian and Solicitors Journal. Lord Bach wrote for the Law Society Gazette about the interim report and the need to build a cross-party consensus around access to justice to ensure that the justice system is once again affordable to all. Writing for the New Statesman, the Shadow Lord Chancellor, Richard Burgon, said legal aid cuts have been disastrous for the poor. Burgon also used an interview with Solicitors Journal earlier in November to talk about his promise to increase spending on legal aid to ensure that the “fourth pillar of the welfare state” is properly funded.

Catherine Dixon, the chief executive of the Law Society, welcomed the interim report as providing “a vital opportunity to consider the fundamental question of how to restore and protect access to justice for everyone in the 21st century, regardless of their background and economic circumstances.” Dixon said: “The right to British justice should apply to everyone who is subject to the laws of this country irrespective of background or income. This is sadly no longer the case.”

Court and tribunal fees: the government announced that it will drop increases of up to 500% in tribunal fees for immigration and asylum cases – see this report by The Independent. The Joint Council for the Welfare of Immigrants (JCWI) was using CrowdJustice to fund its challenge to the fee increases, and was very pleased that the government decided to back down after pre-action correspondence. JCWI said: “It is fantastic that the government has stepped back from an untenable position and has avoided unnecessary and costly litigation at the public expense. Raising appeal hearing fees to £800 was an unequivocal attack on the rule of law, and on the principle that justice is for all, not only for the rich.”

Earlier in November, the Lord Chief Justice, Lord Thomas of Cwmgiedd, expressed opposition by judges to “the succession of significant fee increases” which have left the judiciary “very concerned about the implications for access to justice”, as reported by The Guardian. In his annual report, Lord Thomas said: “A properly funded justice system is a core function of the state, whether the courts are trying and sentencing those accused and found guilty of crimes, determining and declaring the private rights and obligations of individuals, or holding the democratic government to account and ensuring it acts fairly and according to law… It is therefore essential that a better and balanced means of financing the courts and tribunals is found.”

Social mobility survey: YLAL is updating its research on social mobility and diversity in the legal aid sector, and we need your help! If you are an aspiring or junior legal aid lawyer (up to 10 years PQE/call), please complete our Social Mobility Survey and, once you have done so, share it with your friends and colleagues. We want to obtain as much information as possible about the barriers to accessing the profession in order to prepare an updated social mobility report early next year. YLAL co-chairs Ollie and Rachel used their column in Legal Action magazine to talk about our plans to update our research on the state of access to the profession.

Birmingham pub bombings inquest: while some of the families of the victims of the 1974 Birmingham pub bombings were granted legal aid for the re-opened inquests, families represented by KRW Law, a firm based in Northern Ireland, are still without public funding for legal representation. However, the families’ application for funding was supported by the former Chief Coroner, Peter Thornton QC, who said they have a “compelling case” for proper publicly-funded legal representation, as reported by the Birmingham Mail.

Embarrassment clause: YLAL committee member Gemma Blythe wrote for Solicitors
about an embarrassing episode for the Legal Aid Agency, after it agreed to clarify the remit of the ’embarrassment clause’ in the 2017 criminal work contract. The LAA conceded that it must not “seek to rely on the clause to stifle criticism of, or challenges to, the Legal Aid Agency, the Lord Chancellor, or wider government”.

Amnesty and TUC reports: the human rights group Amnesty International and the Trades Union Congress both released reports on the impact of cuts to legal aid in October – you can read our summaries of the reports, by YLAL member Emma Fitzsimons, here: Cuts That Hurt (Amnesty) and Justice Denied (TUC).

Court of Protection: after holding that an application to the Court of Protection concerning serious medical treatment was properly brought under s21A of the Mental Capacity Act – and therefore will benefit from non-means tested legal aid – Mr Justice Charles criticised the Legal Aid Agency, saying it would “advance any point it considers to be arguable to avoid paying legal aid”. The case itself concerns an application by Lindsey Briggs for a declaration that it is in the best interests of her husband, Paul Briggs, who has been in a minimally conscious state since being hit by a car in July 2015, for life-sustaining treatment to be withdrawn.

The statutory charge: The Suesspicious Minds blog featured this piece on human rights claims and the legal aid statutory charge, following the judgment in P v A Local Authority, which found that the statutory charge did not apply to compensation awarded in separate proceedings. While the court judgment meant the outcome in this case was positive, the blog concludes that “the answer is that LASPO is badly drafted and poorly constructed and unfair to real people, and it needs to be reworked.”

Legal aid for prisoners: the Howard League for Penal Reform and Prisoners’ Advice Service are crowdfunding for their legal challenge to the legal aid cuts for prison law, which will be heard by the Court of Appeal in January 2017 – they have met their initial target and are now fundraising for their stretch target. Please visit CrowdJustice if you would like to pledge to support the case!

Other news: in National Pro Bono Week, the Law Society warned that pro bono “must never be viewed as a substitute for a properly funded legal aid system”, as reported by Solicitors Journal. Over lunch with Legal Hackette (aka Catherine Baksi), the Conservative chair of the Commons Justice Committee, Bob Neill, said the government got it wrong with the scale of the legal aid cuts. openDemocracy published this article about how the residence test for legal aid would have denied justice to some of the most vulnerable in society and, finally, YLAL committee member Heather Thomas wrote for Legal Voice about a day in her life as a legal aid family lawyer.