Tuesday, 16 April 2019

Legal Aid in the Headlines

"The legal aid system needs to be made fairer in terms of how it funds those who require it.  It's fundamentally flawed."

The law empowers the State to do many draconian things.  We can be imprisoned if convicted of criminal offences or even for non-payment of Council Tax.  Children can be removed from the family by way of care proceedings if the family court finds that they are suffering or are likely to suffer "significant harm" - Children Act 1989 s.31.  UK citizenship may be removed from individuals in certain situations - e.g. the Shamima Begum "Jihadi Bride" case.  Coroners investigate unexplained deaths including those which may have resulted from the conduct of agencies of the State itself.

In all of those and in many other areas the individual can be faced with complex law and will need access to legal advice and, if required, representation by a qualified lawyer.  Unfortunately, the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) either cut or limited legal aid in many areas.

On 15 April, the Daily Mail published a further attack on legal aid provision - Families of IRA victims denied legal aid over 1982 Hyde Park atrocity are left furious after Shamima Begum gets legal fees paid by the taxpayer.  The newspaper adopted its usual tactic of contrasting a case involving an unpopular individual with cases involving "more deserving" people who have been denied legal aid.

In February I wrote about the arguably unlawful decision of the Home Secretary in the Shamima Begum case.  Begum is a figure of hate in the eyes of most tabloid journalists and it now appears that she has been granted legal aid to challenge the Home Secretary's decision.  There are few more draconian decisions than deprivation of citizenship and it is crucial that even the mighty Home Secretary acts within the law.  The legal aid decision is entirely right.

In February 2018 legal aid was granted for a civil action against John Downey, a suspect in the 1982 Hyde Park bomb attack but legal aid for this civil action had been refused on 5 previous occasions.  Those refusals point to problems with the reduced scope of legal aid since LASPO and it is to those defects that media attention ought to focus.

The Daily Mail also referred to funding for families seeking to be represented at the Birmingham Pub Bomb inquests - "Julie Hambleton, spokesman for the families of the victims of the Birmingham pub bombings, said they also had to battle for legal aid and had received only a fraction of the funding they hoped for."   Her sister Maxine was among 21 people who died when bombs exploded in two pubs in 1974. She said: 'The legal aid system needs to be made fairer in terms of how it funds those who require it. It's fundamentally flawed.'

Problems arising from the 1974 bombings in  Birmingham and Guildford are examined in this article published by the Law Society Gazette on 11 March 2019.   The resumption of inquests into the 1974 Birmingham and Guildford pub bombings raised a number of issues regarding the process by which complex multi-death tragedies are investigated. These relate not just to the process of investigation, but also the way government responds to complex investigations where state failure or responsibility may be engaged.

We can multiply examples of cases where legal aid was available and where it was not.  The danger in all of this is that sight can be lost of the need for justice according to law no matter who the parties to the cases are. 

In the Supreme Court's judgment in the Unison case, Lord Reed explained the importance of the rule of law - "At the heart of the concept of the rule of law is the idea that society is governed by law […] Courts exist in order to ensure that the laws made by Parliament, and the common law created by the courts themselves, are applied and enforced. In order for the courts to perform that role, people must in principle have unimpeded access to them. Without such access, laws are liable to become a dead letter, the work done by Parliament may be rendered nugatory, and the democratic election of Members of Parliament may become a meaningless charade" - R (Unison) v Lord Chancellor [2017] UKSC 51 at para 68.

In recent years, government has imposed numerous impediments to access to justice including alteration to legal aid provision and the imposition of court fees.  Our system of government and legal system are based on the rule of law and if they are to continue to be respected then it is fundamental that justice must be applied to all cases regardless of the popularity or unpopularity of the individuals involved.  A comprehensive legal aid system offering representation at sensible rates of pay is crucial.   As Julie Hambleton rightly said - "The legal aid system needs to be made fairer in terms of how it funds those who require it.  It's fundamentally flawed."


BBC 15 April 2019 - Legal aid: Who gets it?

Government action:

A post-implementation review of LASPO Part 1 took place in 2018 and the report was published in February 2019.  The central purpose of the review was to carry out an evidence based and objective assessment of the impact of the changes made under LASPO.  The government also looked at how the full range of legal support should be delivered in the future.  Their new approach is outlined in the Legal Support Action Plan.

The Ministry of Justice has also completed a separate review of legal aid for inquests and a Review of Part 2 of LASPO, which focuses on civil litigation costs.

Parliament - Justice Committee:

See the evidence given on 3 April to the Justice Committee by the Secretary of State for Justice

No comments:

Post a Comment