Barrister LIZ DAVIES examines how unjust Tory laws are destroying vulnerable people’s lives
OPPOSITION to the government’s legal aid cuts claims some victories.
The well-publicised action by criminal lawyers over the last two years finally forced Michael Gove, Secretary of State for Justice, to retreat from his predecessor Chris Grayling’s “dual contracts” proposal.
“Dual contracts” would have restricted the number of solicitors’ firms providing criminal legal aid services, so that clients would have had no or little choice about who might represent them.
Coupled with a cut of 8.75 per cent in legal aid payment rates, solicitors’ firms would be working on rock- bottom margins. Legal aid cases would have to be conducted by low-paid employees working from templates, and with the real possibility that an important point might be missed.
The cheap labour is dedicated and committed, usually young law graduates desperately waiting for a training qualification, but high-quality legal aid services should not rely on goodwill, or desperation.
Gove has retreated both on dual contracts, and the more recent pay cut. Criminal legal aid services, currently run on a shoestring, will continue on that shoestring, at least for a while.
And last week the government lost in the Court of Appeal over one of its cuts to family legal aid. In 2013, legal aid for family cases was withdrawn completely unless one of the parties had suffered domestic violence in the previous 24 months. There was a lengthy list of how that person could prove that she (it is usually “she”) had experienced domestic violence: her partner’s conviction or caution, a court injunction, detailed letters from social services, doctors or refuges.
The problem, of course, is that many women do not report domestic violence at all. Then they find themselves wanting to tell the court about it, in the context of a dispute over arrangements for the children. Without proof of domestic violence, they don’t get legal aid and end up representing themselves. Family judges have complained bitterly — in submissions to the government and in high-profile judgements — about the unfairness for all concerned when litigants in family cases are not represented.
The Court of Appeal decided that the 24-month period was arbitrary, and that the evidence required made no provision of victims of financial (rather than physical or emotional) abuse. It’s a defeat for the government, which will have to reconsider those regulations, but doesn’t deal with the underlying restriction on legal aid — that it is not generally available in family cases.
Don’t think that the Court of Appeal will always support legal aid. Another Grayling initiative — to restrict legal aid to people who can prove 12 months’ lawful residence in Britain — was held to be unlawful in the High Court, but the Court of Appeal overturned that decision and decided it was lawful.
Essentially the Court of Appeal decided that politicians knew what they were doing when they approved this “residence test” for legal aid. It sounds on a par with all the other anti-migrant steps taken by this government: restricting housing rights, cutting benefits to EU migrants etc. But it equally affects British citizens.
Not everyone has their passport to hand and can prove 12 months’ lawful residence. And why shouldn’t migrants get legal aid if they need to challenge an unlawful decision?
On top of that, civil legal aid cuts that came into force in 2013 will stay, at least until a change in government.
Legal aid is not available for advice on welfare benefits dispute (surely the area of law where clients are least likely to be able to pay for advice), for employment law cases, for areas of housing law and, above all, legal aid is not available for family cases except where someone can prove she has experienced domestic violence. Add in sweeping cuts to legal aid payment rates and even where legal aid might be available for a civil case, finding a legal aid lawyer can be impossible.
Jeremy Corbyn has consistently defended legal aid, both as a backbencher and now as leader of the opposition. He has spoken at Justice Alliance rallies, done the hard technical graft on the justice committee and hosted legal aid events in Parliament. The Labour Party has set up a review, led by Lord Willie Bach, into the impact on access to justice caused by the cuts to legal aid. The best hope for legal aid is a Corbyn socialist Labour government in 2020.
Liz Davies is a legal aid barrister specialising in housing and homelessness law. She is an honorary vice-president of the Haldane Society of Socialist Lawyers. She writes this column in a personal capacity.