LASPO and its superficial stability

Posted on 13 Dec 2017 by Concobhar Jolliffe-grimes

Disclaimer: The views expressed below are that of the individual author.

Austerity demands a cost and legal aid is that sacrificial lamb, as the government have fostered a profit-over-person culture. In 2013, in an attempt to curtail costs, The Legal Aid, Sentencing and Punishment of Offenders Act, ruthlessly stripped the legal aid budget of £230m; the fundamental base that provided for the poorest and neediest in society access to courts. Specifically, the act essentially took all immigration work out of scope, leaving unrepresented appellants, over-stretched pro bono services and self-funding clients, to the detriment of the local community.

The unpopularity of the bill was undeniable. Defeated 14 times in the House of Lords and finally passed by the narrowest of margins. Lord Bach went as far as to label it “ludicrous, immoral and wicked.” When the act eventually came into force, Lord Bach’s hostility materialised and there was a sharp fall in immigration work to practically nothing. Such cuts to legal aid meant lack of free representation. Surely miscarriages of justice must follow. Furthermore, asylum cases were also left alone which themselves are subject to long delays and high complexity.

Pre-LASPO, it was to an extent true that immigration cases subsidised asylum work. The unprofitability of asylum work “halved the size of a team in southern England.” Coupled with another provider in the same area forced to withdraw from this type of work, citing the ‘stress of frequent auditing’, payment disputes and contractual requirements forcing its hand. Put simply, the low payment rates don’t outweigh the hassle. This withdrawal clearly leaves the burden of demand on smaller and now isolated providers in the region. Common sense dictates that this burden leaves many unable to find advice for people seeking asylum, thus exposing Britain’s vulnerable underbelly. The small number of legal aid agencies are decreasing further, as access to justice is seemingly improbable if not impossible to obtain. It seems LASPO had bigger ripple-effects than foreseen.

The Government responds to such pessimism through reporting that workflow with immigration cases are down. However, this doesn’t negate the need for legal aid with the introduction of LASPO. The people who would have previously been able to count on such aid turn to other unregulated parties and third-sector agencies. This has “concerned an increasing number” of people as it may just build upon the harm provoked by the cuts.

The Government’s 2015 report on monitoring the impact of LASPO also points towards the public purse and money saved. Although though this is again inadequately conveyed, as it fails to take into account those who now have to carry the cost of those without access to justice. The famous analogy follows, ‘legal aid is no longer that fence at the top of the hill but is now the ambulance at the bottom.’ For example, individuals now turning to their family, friends and local community create widespread socio-economic issues that aren’t adequately mapped in yes/no graphs. On top of this, the majority of respondents to the governments paper, disagreed with the content. The varying law firms, judges and advice organisations believed that pro bono had increased in this area. Seemingly, LASPO has certainly ensured that everyone is uncertain as to the real impact and lasting effects.

However, to the governments credit, they haven’t completely picked the bones of legal aid clean as LASPO introduced the safety net of Exceptional Case Funding. Essentially a scheme that steps in where a refusal of funding would breach a human right, then allowing the appeal for legal aid. Four years on from its implementation, whilst the current figures depict little change in the immigration appeals process, they fail to properly undermine ECF. This trend continues.

In R (on the application of G and others) v Director of Legal Aid Casework and another (British Red Cross Society intervening) [2014], the claimants had been refused civil legal aid. However, their judicial review challenge was successful. The judge had erred in his interpretation of this funding scheme in LASPO and underlined a violation with Article 6 and 8. This positively demonstrates the availability of legal aid in certain circumstances however the challenges in trying to secure it pose serious threats to its effectiveness…

In the absence of clear guidelines, it is difficult for the lay man to know how to apply for the scheme; the statistics show that the majority of applications are refused anyway; these issues have accumulated to ward off legal practitioners from attempting this route. Coupled with the intensive and time-consuming work that is involved, all seem to suggest that the viability of the Exceptional Case Funding is bleak at best. Whilst governmental response to this case has led to a simplification of the process, the rarity of success still persists.

Fundamentally, reports reflecting little change in immigration appeals are unjustly shedding positivity upon legislation that remains “ludicrous, immoral and wicked.”. From the burden now placed on asylum seekers to the alternatives for legal aid to the ‘un-exceptional’ case funding scheme, LASPO is undermined to its core. It is in any case too early to explore the full effects and although one may have their suspicions as to the result of drastic cuts, only time will determine the legal aid legacy of the coalition government.

Tags: mind_the_gap /

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