Opinion:The Ministry of Justice’s latest reforms to legal aid will cut access to justice, not the deficit

Scales of Justice - Some rights reserved by CitizensheepTuesday 9 April 2013 was Be Kind to Lawyers Day – it was also the day that the Ministry of Justice launched its consultation on proposals to further reform the legal aid system in England and Wales. The proposals will affect both civil and criminal legal aid and, while the changes to criminal legal aid have attracted some media coverage, the changes to civil legal aid have received scant attention.

The civil legal aid changes fall into two categories and they represent a fundamental shift in the relationship between the state and those who are affected by its actions. Firstly, there will be a residence test which will require individuals to be in the UK at the time of the claim and to have been “lawfully resident” for at least 12 months.

This test will mean that some of the most vulnerable people will no longer be able to access legal aid. This includes victims of human trafficking, unaccompanied child migrants, and victims of domestic violence whose immigration status is dependent on their spouse or partner.

The residence test will also prevent many cases being brought against the British state when it is accused of serious unlawful action abroad. The cases of Binyam Mohamed – imprisoned in Guantanamo Bay and who accused MI5 of being complicit in his torture and Baha Mousa – murdered on a British army base in Iraq – would not qualify.

Legal aid will also no longer be available for immigration detainees who can be held indefinitely at the behest of administrator. Detainees will be prevented from filing applications for immigration bail, challenging unlawful detention, and from bringing habeas corpus cases.

Second, the changes to judicial review will prevent many decisions taken by public authorities from being challenged by those they directly affect.

Under the proposals, legal aid providers will only be paid if applications for judicial review are accepted at the permission stage. The reform is supposed to weed out weak cases early on, but in effect will mean that providers take on fewer cases no matter what their merits in order to protect themselves from the additional financial risk they will be under.

In turn, this will mean that people will find it harder to find and instruct legal representatives unless, of course, they can afford to pay for it themselves.

The Ministry of Justice has tried to frame the proposals as a way of tackling abuse of the legal aid system and to stop fat cat lawyers earning millions of pounds from the taxpayer.

Yet the changes to civil legal aid will, according to the impact assessments, save just £4million out of a total legal aid budget of a little under £2 billion.

These reforms are not about saving money. So what are they about?

A consultation on the future of judicial reviews earlier this year shows that the government doesn’t like them. Indeed, the document cited anecdotal evidence that the threat of judicial review damages the performance of public decision makers. This would seem illogical – the knowledge that a decision could potentially be scrutinised for its legality would, one would imagine, make decision makers more rigorous.

Another, slightly more plausible, explanation for the reforms might be that the government doesn’t like having its decisions challenged. Indeed, the Ministry of Defence has previously complained that adverse judgements in judicial reviews arising out of the invasion of Iraq would be “extremely serious”.

Some in Whitehall may soon have reason to cheer as these proposals will mean that fewer people are able to challenge the decisions of public authorities. However, for Liberal Democrats who believe that all should be equal before the law this is a significant and unacceptable blow to justice.

The Government cannot be allowed to hide behind deficit reduction as the reasoning behind these proposals. It bears repeating that they will not save money.

As Liberal Democrats we should be shouting loud and clear that these proposals will protect the state from judicial scrutiny of its decisions, a situation that should not, and cannot, be allowed to happen.

* Jonathan Featonby is a Lib Dem Member in Bromley

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8 Comments

  • I agree we should be shouting loud and clear that these proposals are illiberal because they protect the power of the state and we as Liberal Democrats should have nothing to do with protecting power because we have always been about controlling power and protecting people from power. As Jonathan states this is also about equality of access. I can’t remember this being in the coalition agreement so Nick Clegg should veto it.

  • Helen Dudden 4th Jun '13 - 8:46pm

    When I had a family issue I started to study international law. I do not believe that the comments of “fat cat” lawyers is true and most unfair, there is always a black sheep in every section of life.

    I have gone on to help with problems associated with the subject of international, and the high costs can exclude the right to a successful outcome.

    During my studies on law, I have been taught that justice and freedom go hand in hand. Human rights, justice and freedom, I think that they sound very pleasant to the ear.

  • Anthony Hawkes 4th Jun '13 - 10:57pm

    This should not happen while Liberal Democrats are in government. Equality before the law is not negotiable. Of course, some cynics may say (not me honest) that we should not worry as we will never hear about the injustices – thanks to secret courts.

  • Geoff Payne 5th Jun '13 - 7:48am

    This article provides further compelling reasons why the proposals in the MOJ consultation should be resisted. Judicial review has become a vital tool by which some of the most vulnerable people can challenge decisions by the state that fundamentally affect them – on issues like housing, benefits and deportation. It is self-serving and wrong to choke off the funding by which those challenges can be made and it is unhealthy in a democracy. The residence test may be unlawful but, either way, is wrong for similar reasons. Although the consultation has just closed, there is much more work to be done on this.

  • You’re right, this has nothing at all to do with the deficit but radically reducing access to justice in English and Welsh law for an increasing proportion of the population and ensure the executive remains unaccountable unless taken to European court.I think its difficult for a liberal democrat to support particularly if they can cast their mind back a decade.

    I think you should also add that the piecemeal quantitative costs saved are also outweighed by the huge social costs and so are also false economies. For example, I see children becoming victims of reforms where one parent is denied legal aid to defend against the wealthier parent. There is also the obvious impact on communities uprooted as they can’t challenge planning decisions. I also can’t put a cost on the social impact on people who have lost faith in a justice system where perhaps Capita or another private company offering generic legal services are the only people to defend them. Victims with specialist conditions or technical cases, for example, miners claiming compensation will simply be denied justice in england and wales.

    To my mind, the tough decisions that needed to be taken to close the deficit were nearly always ducked and deferred. Instead stupid and short-term decisions ended up being taken instead often serving very narrow interests. This unfortunately is one of them and in the long term opens a chasm between the citizen and the state in england and wales.

  • Helen Dudden 5th Jun '13 - 8:30am

    @SFK I agree, this happens in the international sector too.

    There is little thoughts, that the vulnerable will be the losers.

    How things have changed!

  • I will be more than disappointed if LibDems sell out on this one.

    I would say it is a crossing the Rubicon moment in terms of sticking up for what clearly seen and known to be an issue of fundamental importance.

  • Suzanne Fletcher 15th Jun '13 - 9:21pm

    The proposals are shocking and real erosion of the rights of very vulnerable people. How can Lib Dems have “fairness” as part of our banner, and support these proposals.
    thanks for writing the article.

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