The human cost of cheap justice
A London barrister recently helped a teenage girl win a legal appeal against a government decision to remove her from Britain. This girl had been trafficked into the country for sexual exploitation. She had been repeatedly raped over a number of years and had fallen pregnant.
The barrister’s representation was funded by legal aid. Without it, this victim of trafficking would have been sent back to her country and put at risk of being exploited by her traffickers once again.
In technical terms, ‘legal aid’ is publicly funded legal advice and representation provided to people otherwise unable to afford it, in England and Wales. While our National Health Service (NHS) provides free healthcare to the sick, free legal services are available not only to those accused of a criminal act, but also to people who may face violence or destitution. In 2012-13, some $3 billion was spent providing 2.3 million acts of legal aid. This pales in comparison to the 2012-13 NHS budget of $173 billion – it costs relatively little to ensure access to justice is universal and not just for the richest in our society.
When the Conservative and Liberal Democrat Coalition came into power, legal aid became a target for austerity measures that had already radically reduced frontline legal aid services. In April 2013 the Legal Aid Sentencing and Punishment of Offenders Act 2012 came into force. It removed funding for many legal issues for the poorest groups in society, including welfare benefits, housing disrepair, debt, employment, and immigration. Despite these devastating cuts, on 9 April 2013 the government announced new proposals, called Transforming Legal Aid (TLA), to cut another $349 million per year by 2018-19 from both civil and criminal legal aid.
A campaign was launched to oppose the TLA cuts arguing that victims of trafficking, refugees, victims of domestic violence, prisoners and foreign nationals facing abuse while in Britain could be denied the protection of the law. The proposed ‘residence test’ is described by many lawyers as unlawful and discriminatory.
Senior members of the judiciary, including the Lord Chief Justice and the Master of the Rolls, expressed concern that the criminal legal aid measures will make miscarriages of justice more likely and the civil legal aid proposals will give rise to more litigants in court without representation. Undoubtedly, the reforms will also make it harder for individuals to bring judicial review cases to challenge unlawful acts by the state, which undermines the constitutional principle of the rule of law.
On 5 September 2013, the government published its response. It ignored the nearly 16,000 formal replies to the TLA Consultation. Most of the proposals will be implemented within months and with few changes. The plan to introduce price competition in the criminal legal aid system (called a ‘race to the bottom’ on quality) was dropped but criminal fees paid by the government will be cut by 17.5 per cent. Many criminal legal aid practices will be forced to close as a result.
On the civil proposals, the government’s concessions (such as to those to victims of trafficking) do not go nearly far enough. For example, if authorities had not accepted the girl described in the opening lines of this post as a victim of trafficking, she would not have qualified for legal aid to review that decision in the courts.
One great frustration for legal aid campaigners has been the government’s unwillingness to engage with counter arguments on costs. It has been calculated that just a few of the proposals, designed to save $9.5 million, will actually increase spending by $47.6 million in other areas. Legal aid actually saves money: by providing appropriate advice early on, up to $14 of public money is saved for every $1.59 invested.
These proposals do not target inefficiency in the legal aid system. Instead, frontline services have been hit first – and hit hard. The real cost of cheap justice is a human cost: more poor and vulnerable people will be facing violence, deportation, or destitution without any legal support. This is the bill we must refuse to pay.
Alice Cullingworth is a member of Young Legal Aid Lawyers (YLAL). @YLALawyers
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