Legal Aid, Sentencing and Punishment of Offenders Bill

Memorandum submitted by Discrimination Law Association (LA 77)

Briefing on the Legal Aid, Sentencing and Punishment of Offenders Bill

1. The Discrimination Law Association (‘DLA’), a registered charity, is a membership organisation established to promote good community relations by the advancement of education in the field of anti-discrimination law and practice.

2. The DLA comments in this document only on those sections of the Legal Aid, Sentencing and Punishment of Offenders Bill ("The Bill") directed at the provision of legal aid. The DLA believes that those aspects of the Bill’s provisions will have a significant adverse impact on access to justice for people most in need of legal help to enforce their rights and least able to pay for it.. Whilst we agree that, wherever possible, people should be encouraged to resolve issues out of court and that legal aid spending should aim to maximise value for money, we do not agree that the proposals in this bill achieve this aim a fair and equitable way.

3. The DLA is extremely concerned about the scale and extent of the radical reforms contained in the Bill. The Bill largely reflects the proposals contained in the Ministry of Justice’s "Proposals for the reform of Legal Aid in England and Wales, Nov 2010". We remain committed to the view expressed in our Response to that consultation exercise that the proposed reforms will have "calamitous consequences" [1] for the provision of civil legal aid to the most vulnerable in society. That this is likely to be the case is evidenced by the lengthy equality impact assessment (EIA) showing disproportionate adverse impact on women, ethnic minorities and disabled people published by the Ministry of Justice (MoJ) at the same time as the proposals contained in this Bill were published for public consultation [2] . Notwithstanding the overwhelming opposition to the proposals in the November 2010 consultation document, many of these rashly formulated and inadequately analysed plans were re-affirmed in the Government’s Response in June 2011 [3] and have now found their way into the Bill. For this reason, the DLA reiterates and repeats in this document many of the comments made in its response that consultation. [4]

4. The Bill is likely to make the effective exercise of rights impossible for the very vulnerable, whether that vulnerability relates only to membership of a protected class or whether vulnerability is compounded by such membership. In any event, disabled persons, women, black and ethnic minorities and religious and sexual minorities tend to represent a significant cohort of those who can properly be described as vulnerable for the purposes of public funding for litigation. This raises serious issues about whether the reforms infringe international instruments which guarantee access to justice and the right to an effective remedy (e.g. Articles 6(1) and 13 of the European Convention on Human Rights).

5. We are 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 changes fail 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.

6. The Government’s stated aim is to reduce the need for litigation as well as to save costs. The proposals to exclude legal aid from early stages of problem solving (which are not threatening to life or liberty, to family life or to loss of a home) risk the escalation of these problems, especially for vulnerable groups, until threats to health and personal safety, family life or loss of a home become very real. This strategy will both increase the fear and distress of the people involved and is likely, in the end, to add to the costs to be borne by the legal aid fund and society more generally..

Retaining Discrimination cases within scope of legal aid

7. We welcome the Government’s confirmation that discrimination cases will remain in scope and that funding will continue to be provided for claims relating to a contravention of the Equality Act 2010.

8. The DLA also welcomes the government’s concession – in line with the DLA’s Response to the original consultation at paragraphs 22-35 of that document – that "cases will arise where it will be difficult to separate discrimination from other issues in terms of funding" [5] . As we stressed in our full Response to the original consultation, it would be both impractical and undesirable in the majority of such mixed claims for an adviser to provide legal assistance in respect of only one element of a claim. The experience of our members is that a very significant number (if not the majority) of discrimination claims litigated in and outside of the employment tribunal are, in fact, mixed claims. In the employment context they will often be linked to unfair dismissal, redundancy or unlawful deduction from wages claims. In the non-employment context, they will frequently be attached to tortious/contractual claims against public or private bodies or claims in relation to housing, community care or other social or healthcare provision. It therefore remains our view that such mixed claims ought not to be outside of scope as a matter of general policy.

9. We note the government’s statement that it will ensure that the new scheme will make provision for funding such mixed claims in full or in part in certain circumstances. We are pleased about this in so far as it represents an acknowledgement of the reality our members know only too well. However, we wish to record our strong view that this is by no means an adequate or optimal resolution. It will be creative of an additional administrative burden on skilled advisers whose resources will be stretched to breaking point in the context of the disappearance of alternative sources of advice and representation caused by other public spending cuts. It is incongruent policy-making to provide funding for mixed claims only on an exceptional basis when such claims are far from exceptional.

10. It is the DLA’s view therefore that employment cases linked to discrimination cases should not be taken out of scope. There should be express provision for assistance in such mixed cases as a matter of general rule/policy. .

Removal of important areas from the scope of legal aid

11. The DLA has consistently opposed the exclusion from legal aid of welfare benefits, clinical negligence, criminal injuries, debt, employment, immigration , many planning and eviction cases for Gypsies and Travellers, housing and divorce. These exclusions will have a negative impact on the government’s commitment to creating a fair and equal society by the effective legal protection against anti-discrimination. In relation to most if not all of the potentially excluded areas, discrimination is both likely to occur (e.g. in housing, school exclusions and in the employment context) and likely to be undetected as a proper legal basis for challenge, in the absence of specialist advice. Therefore the exclusion from scope of the "core" areas of potential litigation (employment, immigration, housing matters etc) will severely prejudice the ability of claimants to seek redress for discrimination in any such area. This may render the retention in scope of discrimination of little practical value at all. This cannot be consistent with the UK’s international obligations under, for example, the EU Race Directive, the EU Charter of Fundamental Rights and the European Convention on Human Rights.

Clinical Negligence

12. The DLA set out in clear terms at paragraphs 38-42 of its original response to the November 2010 consultation the basis on which it opposed the exclusion of clinical negligence from scope. The particular concerns we raised were the unreliability of the assumptions made by the government that there would be alternative funding sources and the particular detriment that might be visited upon children, disabled and incapacitated persons by the withdrawal of funding in an area where success would be dependent upon the ability to conduct detailed investigations and commission expert reports in respect of extremely complicated material.

13. The DLA notes that the proposed course of the government is now to (a) put in place, subject to parliamentary approval, a power to allow successful claimants to recover ATE insurance premiums to cover the cost of expert reports etc; and (b) to encourage the use of the exceptional funding scheme where the absence of funding would lead to a breach of Convention rights. The DLA still considers that special consideration should be given to children, protected parties and disabled persons in respect of these claims and is very concerned that access only to the exceptional funding scheme in such cases may cause good claims by these vulnerable groups to slip entirely through the funding net.

Criminal Injuries

14. The DLA considers that it is incorrect to treat applications made under the Criminal Injuries Compensation Scheme ("CICA") as if they were solely concerned with financial compensation. The application process is far from straightforward and entails the completion of a lengthy document. Applicants will require assistance both in completing the application and in dealing with the review and appeal processes. The people who apply to the CICA include young abuse victims and women who have suffered sexual assaults and other physical violence. Those who have suffered psychiatric injury and/or have serious mental or physical health difficulties will face an additional hurdle in seeking access to the CICA Scheme without assistance. It is well known also that those who suffer domestic and/or sexual abuse often fail to characterise what they have suffered in those terms and do so only with the help of a skilled representative. It is incorrect to assume that alternative avenues for assistance can be called upon by those affected.

15. The DLA notes that the government has responded by re-affirming its decision to exclude these claims from scope save where a failure to provide funding would amount to a breach of Article 6 of the ECHR. The government has indicated that the kind of claims which may fall to be granted exceptional funding are cases which engage Article 15 of the Trafficking Convention. The DLA wishes to remind the government that cases concerning young people and others who have suffered abuse and/or serious violence of psychiatry injury and sexual assault will also potentially give rise to Article 6 breaches if not funded.

Housing

16. The DLA alluded in its original response to the important public interest attached to effective access to justice in respect of housing disputes which entail complex statutory provisions. We expressed concern that the exclusion from scope of a number of housing matters would disproportionately affect those with physical and mental disabilities, those with language difficulties and those otherwise unable to raise their concerns in a manner considered appropriate to legal proceedings.

17. Whereas the DLA welcomes the government’s decision to bring unlawful eviction claims within scope and to provide funding in circumstances where an order for sale against an individual’s home is sought, these ameliorative measures do not really serve to mitigate many of the problems highlighted in the reponse of the Housing Law Practitioners Association ( "HLPA") referred to in the DLA’s original response. By way of example, HLPA pointed specifically to the indisputable merit in early intervention and timely advice on debt and welfare benefits if the true aim is to avoid the social and financial cost of potential homelessness. This very important point appears to have been avoided in the Government’s Response and in the correlative provisions of the Bill.

18. More over, there appears still to be little concern on the part of the government about the disproportinate impact that the exclusions will have on the less articulate, and of course on the protected groups noted to be affected in the MOJ’s own impact assessment. The MoJ’s own EIA notes the disproportionately large percentage of disabled housing law clients who will be adversely affected by this proposal as they are disproportionately likely to require advice and assistance in order to resolve housing complaints(27%). Similar significant disproportionality would apply to women and BAME clients (60% and 31% respectively).

Immigration where the individual is not detained

19. In the context of the funding of discrimination claims, the government has recognised the impracticability, at least in certain circumstances, of only providing funding for one aspect of a claim where an individual also has other complaints. The DLA was therefore surprised to note that, in the immigration context, the government has dismissed a completely analogous logical inconsistency pointed out in the DLA’s original response and in that of the Bar Council. The government has maintained that advisers ought to be able to separate out their advice on detention matters from the underlying immigration application and provide advice only on the former. The DLA can only regard this as reflective of selective myopia. The DLA repeats the point made in its original response to the effect that it specifically disagrees with the suggestion that ‘individuals in immigration cases should be capable of dealing with their immigration application’ [6] . In so far as it is suggested in the Government Response that "contracted legal aid providers should not generally find it difficult to distinguish between advice related to aspects of immigration detention or bail and the underlying immigration issue", the DLA is strongly of the view that the government has missed the crucial point entirely. The point made by the DLA, the Bar Council and other interested groups is that the question of the lawfulness of the detention which may be challenged with legal assistance will often be inextricably linked to the merits of the underlying application. It is not that advisers will find it difficult to distinguish between detention advice and other immigration advice but rather that it would be inappropriate for such advisors – if they are concerned, as they ought to be, to provide individually tailored, competent and adequate advice – to advise on detention matters whilst ignoring a potentially linked immigration issue upon which they are competent to advise and which may affect the convention rights of the persons concerned. We reiterate the following points made in our original response:

a. The removal of immigration claims by those in detention from scope at the same time as retaining claims which challenge the lawfulness of that detention is logically inconsistent. Where continuing detention will depend on the merits of the underlying immigration application it will be inimical to the provision of appropriate advice for the adviser to be expected to advise only on a challenge to the detention itself.

b. Many immigration applications are made in circumstances where the persons concerned are children and/or the victims of trafficking and/or otherwise cannot be described as making a "free and personal choice" to come or to remain in the UK.

c. The exclusion from scope of immigration cases will frustrate the policy behind immigration rules intended to prevent persons from having to remain in abusive relationships in order to stay in the UK. The retention of funding for domestic violence cases does not appear to extend to immigration cases and, therefore, very vulnerable persons will be unable to benefit from that retention where their immigration status is in issue.

d. Migrants will tend to encounter greater difficulties in attempting to represent themselves than UK citizens by reason of cultural and language barriers. This will have a detrimental impact on their right to a fair hearing and an effective remedy.

20. The MoJ EIA reveals that the proposed removal will have an overwhelmingly disproportionate impact on Black and Minority Ethnic groups who would comprise 85% of clients losing legal aid for this purpose.

21. The DLA is also concerned about the specific gap in discrimination protection that will result from the proposal to remove most types of immigration cases from scope. It is difficult to conceive of many situations in which a person would seek to bring a case of discrimination before the Special Immigration Appeals Commission or the First tier or Upper Tribunal (Immigration and Asylum) without at the same time appealing against the immigration decision in question. Thus to provide legal aid for a discrimination claim but to exclude legal aid from the appeal against the decision allegedly tainted by discrimination cannot be justified as rational or proportionate.

Welfare Benefits

22. The DLA strongly opposes the exclusion of welfare benefits from scope and is concerned that a large proportion of those in receipt of benefit or eligible for benefit will be disabled persons. They are far more likely to have problems with access to the courts by reason of physical or mental health problems and will therefore be particularly affected by the withdrawal of funding.

23. The MoJ EIA also records the impact on BAME groups of this particular exclusion as being 85%.

24. The DLA notes that the government has retained the exclusion of welfare benefits cases from scope save for judicial review cases and claims relating to the contravention of the Equality Act 2010. The government’s suggestion that applicants (a large proportion of whom will have language /communication difficulties and/or other disabilities/disadvantages) can present their cases without legal assistance flies in the face of what is said by those who are in fact engaged in the daily provision of such advice (e.g. Citizens Advice).

The effect on litigants in person and the conduct of proceedings.

25. The MoJ EIA acknowledges that the proposed reduction in the scope of legal aid will result in an increased number of litigants in person which "may potentially lead to delays in proceedings, poorer outcomes for litigants (particularly when the opponent has legal representation) implications for the judiciary, and costs for Her Majesty’s Courts Service." The DLA is extremely concerned that this reduction of the scope of legal aid is likely to deprive many of access to a fair hearing.

26. There is also a significant risk of increased or wasted costs resulting from the removal of legal aid. While a representative advising under legal aid must be satisfied of the merits of the case, an unrepresented party is under no such constraints. Unrepresented parties may not be able to identify relevant points of law and may seek to advance other points requiring judges to find their way through lengthy pleadings and bundles of documents which fail to advance an arguable point of law. These problems will be significantly greater for the vulnerable groups which have been identified as the main users of legal aid.

The Community Legal Advice helpline

29. In its original response, the DLA set out the reasons for its strong opposition to the proposal to establish the Community Legal Advice helpline as the single gateway to access civil legal aid advice. [7] We set out our objections to the use of a helpline as the only way of accessing legal aid and also to the proposal to allow access to legal aid in a face-to-face meeting only to those who could show that they met very strict exceptions at paragraphs 84-85 our original response. The "single telephone gateway" proposal was also met with strong and vocal opposition by many other interested groups. In particular, the Housing Law Practitioners Association stated that they considered it to be the one of most objectionable proposals in the Green Paper (See HLPA Response at http://www.hlpa.org.uk/cms/2011/02/legal-aid-reforms-response/, para. 4).

30. The DLA reiterates its opposition to the single telephone gateway and continues to believe that it is seriously ill-advised for three main reasons:

· an exclusive gateway will have a disparate adverse impact on groups defined by sex, disability and ethnicity;

· the impossibility of providing full and accurate advice by telephone to all potential legal aid clients and the risk of inaccurate diagnosis which could, wrongly, exclude clients from the advice to which they are entitled – which, in turn raises issues of access to justice;

· the impact of the forecasted huge reduction in funding for face to face legal help on the survival of not for profit legal aid providers across the country.

31. The DLA notes with some alarm that the government proposes to include community care in the proposed mandatory telephone gateway. The DLA has had sight of a letter sent to the Parliamentary Under Secretary of State for Justice on 26th August 2011 by a group of expert community care legal practitioners [8] urging the government to remove community care from the proposed mandatory gateway and to undertake a full and proper consultation as to the suitability of such a proposal including consideration of measures which might secure effective access to legal advice and representation for the vulnerable client group concerned.

32. The letter provides instrumental confirmation, and more, of the issues identified and summarised by the DLA in its original response. It indicates, importantly, that community care is not an area of law in which there is currently a non-mandatory CLA telephone service operating. This fact rather suggests that the decision to include community care could not have been founded upon any evidence that such a service was or was likely to be suitable for this particular cohort of applicants for legal assistance. As the letter also indicates, community care clients are, as a group, significantly more likely than others to be frail or disabled and are least likely to have effective verbal communication skills. This client group is therefore the category of clients most likely to require face to face consultation in order for suitable legal advice and representation to be delivered. The DLA is startled that the government considered it appropriate to make this proposal in the face of opposition to the single telephone gateway by responders to the original consultation, and this time in relation to a client group in respect of which it could hardly be seen to be more inappropriate. The DLA entirely endorses the views expressed in the above-mentioned letter to the Parliamentary Under Secretary and emphatically encourages the government to reconsider its position.

Reduction in funding for face to face legal help

33. The EIA estimated that funding for face to face legal help to not for profit legal help providers, including law centres, CABx, race equality councils and other local advice agencies, will be reduced by 85%. The funding for face to face legal help to solicitors will be reduced by 75%.

34. In many parts of the country it is already very difficult for people who believe they have been victim of unlawful discrimination to obtain to find a lawyer able to provide publicly funded legal help.

35. The DLA simply cannot see how agencies such as law centres and local advice agencies will survive if they lose 85% of their funding for legal help. Their survival is further put at risk by the decisions of many local authorities to cut funding for local advice services. Rarely, if ever, does a body that is forced to close for lack of funds ever re-open. So the loss will be permanent and the losers will be members of the public who will not have the advice they need in order to protect and defend their rights in many areas including discrimination.

36. While few solicitors firms will be equally dependent on legal help funding, the DLA does not expect many firms to fill any gaps in the provision of legal help. We are greatly concerned that while we have a new Equality Act, expanding rights against discrimination for many people, in practice, fewer people will be able to receive good quality timely advice in order to enforce these rights.

Other solutions?

37. Many legal aid cases are the result of administrative shortcomings of public authorities and their failure to make accurate and appropriate initial decisions. Huge legal aid costs could be saved if public authorities improved their decision-making procedures. That better decisions can be made is evidenced by the success rate when particular decisions are challenged. For example, the Disability Charities Consortium report that, currently, the Work Capability Assessment is overturned in 40% of appeals.

38. The DLA noted the comments of the Chair of the Administrative Justice and Tribunals Council [9] when he highlighted the failure of public bodies to get decisions right first time across many areas of public decision-making. He identified that 41% of social security appeals were successful, in immigration, there was a 37% success rate and 43% of victims of criminal injuries were successful when they appealed against the decision of officials. He commented that public bodies fail to learn the lessons of successful appeals; while they may put the matter right in the particular case they do not change their systems and repeat the same mistakes, which is a serious waste of taxpayers’ money.

September 2011