Legal Aid, Sentencing and Punishment of Offenders Bill

Memorandum submitted by the Equality and Diversity Forum (LA 44)

Introduction

The Equality and Diversity Forum (EDF) is a network of national organisations committed to equal opportunities, social justice, good community relations, respect for human rights and an end to discrimination based on age, disability, gender and gender identity, race, religion or belief, and sexual orientation. [1]

Our members represent some of the most disadvantaged groups throughout the UK and so we will comment on how the proposed changes may well affect those who must not be forgotten if the government’s commitment to a big society is to have meaning.

Lady Brenda Hale in her Henry Hodge Memorial Lecture observed that:

Courts are, and should be, a last resort, but they should be a last resort which is accessible to all, rich and poor alike. The big society will be the loser if everyone does not believe that the law is there for them.

Members of the EDF are particularly concerned about the total removal from the scope of free or low cost legal advice or assistance on most types of cases which we believe will impact disproportionately on people within certain protected categories – women, people from ethnic minorities and people with disabilities or mental health problems in particular.

Moreover we note that although the annual legal aid budget rose from £1.5 billion in 1997 to 2.1 billion, spending on civil legal aid fell by 24%. [2] Thus the spending on civil legal aid has already been substantially reduced.

The EDF opposes the proposed changes to legal aid because we believe that:

· they are discriminatory and will entrench inequality as women, people from minority ethnic groups, disabled people and other groups facing discrimination will be disproportionately affected;

· they will not promote equality of opportunity as required by the race, sex and disability equality duties; and

· they will remove an important check to abuses of power and incompetence (legal aid is necessary to ensure equality of arms and to enable individuals to challenge decisions taken by those in positions of power).

The EDF is concerned about the equality impact of the removal of legal aid from claims in relation to welfare benefits, clinical negligence, criminal injuries, debt, employment, immigration (excluding asylum), many planning and eviction cases for Gypsies and Travellers, housing (unless a person is facing homelessness) and divorce. We consider that inadequate consideration has been given to the difficulty posed by the complexity of some cases. These provisions neglect to take account of the fact that the protection of rights which require detailed argument and expert evidence will become illusory if legal aid is removed.

The figures given in the Equality Impact Assessment attached to the consultation prior to the Bill show, for example, that a much larger proportion of BAME people are legal aid users. Using the figures given for all categories in Table 2 of the Scope Changes Equality Impact Assessment legal aid is nearly 5 times more important to the BAME community compared to the white community as a means of achieving access to justice. [3] The effect on the BAME community in terms of access to justice will be devastating.

The Equality Impact Assessment demonstrate d the comparative disadvantage that would be created by the proposed provisions. Even though it is based on inadequate data [4] , it clearly shows that in the majority of categories of existing civil law provision women, ethnic minority people and those with disabilities are over represented compared to the national population. The rights with which they are engaged apply to everyone. The figures show that they are rights which have to be enforced through legal process disproportionately by these groups.

For example, in employment cases clients are 24% ethnic minorities, in non-homeless housing they are 60% women, 31% ethnic minorities and 27% disabled and in welfare benefits they are 27% ethnic minorities and 63 % disabled. This compares to a national population of 51% women, 8% ethnic minorities and 18% disabled people. [5] These figures show a significant adverse impact for ethnic minority people across all these categories and for disabled people in relation to non-homeless housing and welfare benefits. [6]

EDF does not agree, as asserted by the Ministry of Justice, that ‘any such disadvantage would be a proportionate means of achieving a legitimate aim and therefore justified’. We note the four policy factors that the Ministry of Justice considered in their proposals for reform at paras 4.13 – 4.29, [7] however, we consider that in effect these provide inadequate justification.

While we welcome the fact that legal help is being retained in discrimination cases, we are concerned that removing legal aid for other linked housing, employment or welfare rights cases will effectively result in a substantial decrease in the number of advice providers and consequently potential clients being unable to find information and advice on their rights. Many discrimination cases arise out of or in connection with other legal claims – housing, employment or welfare benefits, for example. If it is not possible to obtain funding for these parts of the claim it will be very difficult to take action to pursue the discrimination claim. In any event it is not proposed that legal help will be available for representation in tribunals where the majority of first instance discrimination cases are heard.

We therefore support amendment nos 79, 80, 82, 83, 84, 85, 89 & 95.

Proceedings in the higher courts

We strongly disagree with the removal of proceedings in the higher courts from the scope of legal aid for the following reasons:

· It is difficult to envisage a case that went to this level that did not involve a complex legal issue (it is only possible to go to the Court of Appeal were the appeal raises an important point of principal or law, or there is some other compelling reason for it to be heard). By definition cases that go to the Court of Appeal are extremely complex; it is not feasible to expect people to represent themselves at this level of hearing even if they face no other barriers resulting from the impact of discrimination or disadvantage.

· To access the Court of Appeal or higher courts you have to go through permission proceedings and meet specific legal tests. What litigant in person without legal expertise could do this? The answer is obvious: very few indeed!

· Increased numbers of applications and cases involving litigants in person will lengthen the time taken to hear cases and increase the financial burden on the higher courts.

Proceedings in the courts and tribunals of England and Wales are adversarial consequently the intelligence, knowledge of the law and analytical and communication skills of a litigant in person will determine the outcome of the case in many circumstances. None of the courts have an investigative function. This is highly significant because the deficiencies of a litigant in person in presenting his or her case cannot be addressed by the judge. This point was made very clearly by the Court of Appeal: [8]

…It is for the litigant himself to decide what case to make and how to make it, and what evidence to adduce and how to adduce it. It is not for the judge to give directions or advice on such matters. It is not his function to step into the arena on the litigant's side and to help him make his case…. It is not their role to engage in the sort of inquisitorial function that [counsel for the appellant] suggests or, therefore, to engage in an investigation as to what further evidence might be available to one of the parties which, if adduced, might enable him to make a better case. Their function is to hear the case the parties choose to put before them, make findings as to the facts and to decide the case in accordance with the law.

In 2008-09, 98% of legal aid recipients were in the bottom two income quintiles. [9] 86% of the full representation cases and 80% of Legal Help cases which would be removed from scope would affect people in the bottom income quintile. The removal of legal aid will mean that people with fewer resources will simply not be able to win even if they have real grievances. Moreover, disabled people often struggle to get justice in courts and tribunals as information is not provided in an accessible format and reasonable adjustments are not offered. Many disabled people cannot represent themselves for impairment-related reasons and the features of the court environment and justice process can be triggers for distress and exacerbate symptoms of mental health problems or learning disabilities. Removing legal representation would therefore deny a range of groups equal access to justice. This is not consistent with the equal protection under the law that is the birthright of all who live under the rule of law as expressly stated in the Universal Declaration on Human Rights 1948. [10]

We therefore support amendment no 81.

Community legal advice telephone helpline

The Government proposes that a Community Legal Advice helpline should be established as the single gateway to access civil legal advice and this will be initially available only in relation to debt (insofar as it remains in scope), community care, discrimination (claims relating to a contravention of the Equality Act 2010) and Special Educational Needs. Members of the EDF are extremely concerned about this proposal which we believe has a number of problems and limitations which will have a particularly adverse effect on minority groups.

We accept that there may be some advantages to having a telephone advice line, however, these advantages will mainly apply to those who are better off, reasonably articulate, and who have ready access to cheap telephone services. Most of these will have access to resources and thus will be outside the scope of legal aid. If the Government genuinely wishes to ‘re-design the system so that it caters much better for the needs of its clients’ a single entry point telephone advice service is not the way to achieve this.

Some of the people who will be adversely affected by a telephone advice service include-

· ethnic minority clients who have difficulty in understanding or speaking in English or reading documents in English,

· clients with a physical or mental health impairment affecting their ability to communicate by telephone or more generally, including people with hearing loss (1 in 7 of the population) and those who use sign language, as well as

· those who are very distressed or frightened.

They are unlikely to be able to make effective use of a telephone helpline. Consequently we consider that whilst a telephone helpline may be useful to some people, it should not be the sole access point to legal help.

Additionally a number of clients are likely to have a problem which they find difficult to explain, or understand, which can be or often needs to be identified from documentation – this will not be available to a telephone adviser.

Those of our members that have experience in direct advice giving to the public will attest that when a client is very distressed, frightened, confused or upset it can take time for them to explain the salient details of their problems. Many may misidentify their problems. For example, many discrimination problems may be presented by the client as an ‘employment’ problem or a ‘housing’ problem – it will only be after some probing by a well informed advisor that the discrimination element is revealed. Clearly if the potential client on the telephone identifies their problem as employment or housing they will be told that legal advice or help is not available to them, whereas if they had identified their problem as discrimination they may have been referred for further second tier advice.

We therefore support amendment nos 87 & 88.

July 2011