Thursday, June 4, 2015

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Challenging Draconian Attacks On Legal Aid

Robert Murtagh of RRM &, CO LAW a legal practice in North Belfast, outlines the main thrust of the legal aid cuts that the Department of Justice intend to implement and which is being challenged through Judicial Review and in a strike of Crown Court actions by both solicitors and barristers.



Introduction


I have been asked to submit a paper on Legal Aid and the changes that will occur over the next number of years. I have been asked by two different organisations to gather my thoughts on this. One Organisation is a private sector Insurance Company who is looking to plug the gap through Legal Expenses cover but obviously that is a fee paying structure and only those that take out the Policy will have the cover. The other Organisation is a Trade Union looking at it from a social justice point of view and how going forward these changes will affect working people. Even though there are two different organisations the paper remains the same as the issues cut across both organisations.

Legal Aid is the provision of assistance to people otherwise unable to afford Legal Representation and access to the Court system. There is a further enshrined article under the European Convention of Human Rights and that is the right to a fair Trial.

Historically Legal Aid has played a strong role in ensuring respect for economic social rights which are engaged in relation to Social Security, Housing, Social Care, Health and Education Services Provision which may be provided publicly or privately as well as employment law anti discrimination legislation.

There is also Access to Justice and the Criminal Law Aspect.

Classic Welfare States were built across the modern world in the 1940’s following World War two.

In the 1950’s and 1960’s the role of the Welfare State changed and individuals were free to pursue there own goals.

In the 1960’s and 1970’s demand rose for the right of individuals to legally enforce economic, social and Cultural Rights and the Welfare Provisions they as individuals were entitled to.

The 1980’s saw the beginning of stress on the system and this resulted with tension with Legal Aid together with reduced funding.

According to Francis Regan Legal Aid Provision is supply driven, not demand driven leading to wide gaps between provisions that meet actual demand.


Present State of Play


With Legal Applications the merits of any case are considered.

The merits are a legal issue.

There is also a financial eligibility part and there are two factors which are taken into account namely Income and Capital.

Deductions from a person’s income can be made in respect of any dependent child or dependent relative aged less than 20 years. The deduction is currently £65.62 per dependant per week.

If the client is on passport benefits namely Income Support, Income based ESA, State Pension Credit, and Income related employment and support allowance they will qualify for Legal Aid.

For Civil Legal there is a lower limit for disposal income is £3,355.00. The upper disposal limit is £9,937.00 and in Personal Injury cases it rises to £10,955.

With Capital the lower Capital limit is £3,000 and the upper limit is £6,750.00 and again with Personal injury it rises to £8,560.00.

A disposal Income therefore of £234.00 per week plus will rule out a person for Legal Aid assistance.

There are three outcomes to a Legal Aid application.

1) If the client is under the lower limits they are financially eligible for Legal Aid.

2) If the client is between the lower and upper limits they are financially eligible for help with Legal Costs although they will have to pay a contribution and they contribution is determined on a sliding scale depending on their income and capital.

3) If a client is above the upper limits they are not entitled to any help from Legal Aid.


The difficulty in looking at Northern Ireland specifically to see what changes are proposed now that the Conservative government have been elected with A majority and will be in Government for the next 5 years is that in Northern Ireland we have the Stormont Assembly. Minister Ford the Alliance Leader is Minister for Justice. One of the departments that he is responsible for is Legal Aid. The Writer will not rehearse all the attention that has arisen between Minister Ford and the two branches of the Legal Profession namely the Barristers and the Solicitors but suffice to say that there have been and now seem to be even more tensions.

In Northern Ireland at present Minister Ford has simply issued a 15% levy on Legal Aid costs. This does not affect the citizen but means that any Solicitor or Barrister who submits a report to Legal Aid will have a 15% levy. That levy is a deduction of fees. Whilst nobody will have symphony for Solicitors and Barristers the position is these organisations do support the economy, and people in work and contribute to Taxes and National Insurance PAYE etc.

The Hillsborough Castle maintained the Legal Aid funding in Northern Ireland at 84 million for the first three years of devolution.

The Department of Justice target is to reduce Legal Aid spending to £75 million by 2015.

At present spending from 2012 – 2013 has been £91.8 million and this year it looks as if it will reach £104 million.

David Ford has sought to cut spending by reducing the number of Counsel assigned to cases and simplifying means test.

He initially tacked criminal legal aid in a draconian manner reducing the fees to Solicitors and Barristers by up to 50%. Cuts have also been recently introduced on criminal legal aid and this will be addressed later. Minister Ford has now turned his attention to Civil Legal Aid.

As part of the reformed programme the Legal Aid and the coroners court’s bill was introduced to the assembly on the 31st March 2015.

The bill will dissolve the Northern Ireland Legal Services Commission (responsible for Legal Aid) and transfer its responsibilities to a new Legal Services Agency in the Department of Justice. This is a follow on from what happened in England.

All applications for Civil Legal Aid will continue to be taken on the merits of the case with Applications for Criminal Legal Aid still decided by the Judiciary decisions on the funding of Civil Legal Services will be based on a uniform prescribed merits test rather than the proposed statutory funding code.

Criminal Legal Aid for the moment will remain as it was the responsibility of the Courts.


England


As already stated Minister Ford because of the Election and the crisis over Welfare reform has not spelt out what proposals he has for slashing Legal Aid in Northern Ireland other than the 15% levy. One therefore has to look at England for guidance and it is the English example which will be followed.

One important document to look at will be the official report of the committee for Justice dated the 8th October 2014 shared by Paul Given. In that report it is obvious that the Northern Ireland assembly take the view that Legal Aid is now too costly and they are very much considering economies of scale.

Also of importance is the Report from English Solicitors know as the Legal Aid practitioners group it spells out in no uncertain terms the ravages that have occurred in England although the report concludes that the costs which were intended to be saved through the cuts in Legal Aid is being outweighed by the knock on costs to society.

As the report confirms these additional costs to society and the public purse have not been considered or understood by the Government.

The most drastic changes to England were the whole areas of law were removed from the scope of Legal Aid all together.

The largest group of cases affected has been private Family Law cases were unless it can be proved that domestic violence has recently taken place no Legal Aid at all is available for advice or representation in relation to the future of children or other Family matters.

This has had a devastating affect on Children in particular. In addition to private family cases most Welfare benefit cases, Immigration, Clinical Negligence, Employment, debt, many housing case and most recently prison law all been removed from the scope of Legal Aid altogether the result of all this is that people who intended to be able to access Legal Advice through Legal Aid are left without having any help.

In additional to the dramatic changes to the scope of Legal Aid in England the Conservative Government also introduced sufficient changes too eligibly on the basis of a means assessment.

Changes to the treatment of a person’s main dwelling house have resulted in some people being ineligible of Legal Aid despite having no funds to pay for Legal Advice.

An example that would jump out would be an elderly person living alone in a house perhaps not in a great condition but were the mortgage over the years has either been paid out completely or substantially reduced.

In England even people who are receipt of means tested welfare benefits such as Universal Credit are now also means tested on their capital for Legal Aid this is completely ridiculous as the majority of clients who are on means tested benefits have no capital, they are unable to prove their capital because of the strict evidence requirements.

There was a mandatory telephone gateway introduced under the English rules which allows a person to ring a telephone number if they have a Legal problem.

But most people find it difficult to use the telephone and it has been independently assessed that the telephone advice is off a poor quality.

There is also a residence test that excludes from the scope of Legal Aid people who have not been in the UK for a period of 12 months.

Importantly it also excludes people who cannot prove they meet the test which will be the majority of clients who need Legal Aid as unfortunately it is this section of the community that will least likely to have passports, driving licences etc.

Within days of the legislation being passed further changes were announced to Judicial Reviews.

These changes are not concerned with resources they intended to restrict the ability of individuals to challenge decisions of the state.

The English Magistrate Court association has released figures showing a 30% rise in cases where people are now representing themselves.

Mediation for Family Law matters fell by 38% in the year after the reforms.

The Ministry does not know and has shown little interest in the knock on costs of its reforms across the wider public sector as a result of increased physical and mental health problems caused by the inability to access advice to resolve legal problems in fact the Ministry recently admitted that it still has little understanding of why people go to court and how people access Legal Aid!

There have also been substantial reductions and difficulties with criminal legal Aid.

Whilst the Government is both England and Northern Ireland have been successful in portraying Solicitors and Barristers (the top end earners) the vast majority of Solicitors and Barristers have an industrial wage in providing a service to the most vulnerable in our society.

With Criminal work there has been a 50% reduction in the fees payable for work done in the Crown Court.

Solicitors are not been replaced within firms and perhaps more importantly those leaving Law School are finding it impossible to obtain apprenticeships.


Real Problems


Essentially therefore if one looks at the English example in a nutshell here is the direction we will be travelling in regarding out Legal System.

1) No Legal Aid at all for money damage claims i.e. Personal Injuries.

2) Clinical Negligence cover to be removed.

3) Green Form advice for consumer and general contact to be abandoned.

4) Claims against the public authorities namely the Police, Ministry of Defence, the Prison service is to be removed.

5) Green form advice for all welfare benefits to be removed.

6) Removal of Green Form advice for Deft matters.

7) Removal off all Legal Aid for Family and private law cases except for domestic violence that can be proved.

8) Remove Green Form Advice for all housing and immigration matters.

There are wide ranges of other miscellaneous matters in which Legal Aid is also proposed to be removed from namely:

1) Probate matters

2) Breach of Contract

3) Inheritance matters

4) Bankruptcy

5) Actions regarding land disputes

6) Removal of Legal Aid from injunction Proceedings


Finally in relation to Criminal Legal Aid the introduction of a very define means test for Criminal Legal Aid and review of responsibility for the award of Criminal Legal Aid.

There is also reimbursement a provision being discussed whereby if someone is being sentenced that the cost of the prosecution be reimbursed from that person’s income or capital.


What To Do


At present the Law Society of Northern Ireland and the Bar Association of Northern Ireland have launched a Judicial Review against Minister Ford’s recent legislation regarding Criminal Legal Aid fees. It is anticipated that similar action will be taken by the Civil Bar and Solicitors in due course. There is also a strike at the moment being organised by Kevin R Winters & Company Solicitors which obviously are the biggest Criminal Legal Aid practice in Northern Ireland. They and others are refusing to take on new Crown Court cases where the defendant has been returned for Trial at the end of May 2015. This is because of Minister Ford’s recent Crown Court fees represent 45% reduction on the reductions already made in the last 3 years. These Solicitors and others argue that it cannot be done, by that they mean unprofessionally.

It is yet to be seen what the Department of Justice will spell out over the next number of months. The difficulty as already allotted to is because of the difficulties with the Welfare reform bill and the possible collapse of Stormont it is hard to be precise. If however Civil Servants take over the running of the Northern Ireland budget then there will be no uncertainty and certainly will follow to the letter the changes that have occurred in England. This attack in Legal Aid represents the most substantial attack on Access to Justice since the rise of the National socialist party in Germany in the 1930’s. The private sector will look through Legal Insurance to plug some on the gaps through sold and motor Insurance policies.

However looking at the bigger picture the rights of the most vulnerable in our society are being completely eroded and no Legal Insurance Policy can fill that gap.

I hope this article is of some assistance to those who have had the opportunity to read same.

3 comments :

Michael Craig said...

A very comprehensive explanation of the destruction of any notion of equality under the law.

'This attack in Legal Aid represents the most substantial attack on Access to Justice since the rise of the National socialist party in Germany in the 1930’s.'

Absolutley correct.

This together with anti-trade union legislation, massive cuts in subsistence for the unemployed, the sick and disabled, and the scapegoating of immigrants and the precariat should be recognised for what it is. A move towards fascism.

Neo-lberalism has decided that it's time for a cull.

tiarna said...

The family courts I think have been getting hit the hardest for the past couple of years over in England. A London Court not so long ago said that parent could not appear before it without legal assistance and last week a higher court reversed that decision and so in very serious cases parents are left to their own devices in case where children can be taken into care or one parent or other will lose access to their children.

These changes are likely the start of decade long changes to come.

The European Court of Human Rights has also been adjusting its decisions to facilitate the UK removing legal safeguards and resources where professional representation is being undermined.

For decades NI Lawyers have been said to take on far more cases than they should -unlike across the water. If you were unhappy with your lawyer before then think again -the quality of legal assistance, the amount of pre trial preparations are all going to take a nose dive.

Throughout all these changes you can bet your bottom dollar that Ford and and gov dept will have unlimited legal budgets, resources and the best lawyers available to defend any abuse of powers, bad decisions, and cockups they make.

Gerard. said...

It's a pity this piece is so technical. There's a blog called the barristers wife that lays things out in ordinary terms and gives examples of the changes that have taken place in England and Wales. This blog stopped writing for some reason as far back as 2013, but the exhibits it gives are very good in explaining what exactly is going on.


https://abarristerswife.wordpress.com

I think the article here relies too heavily on the financial aspect of things, because it's going to affect pay as wel as justice, but the human cost is going to be high. But again we sat back and watched changes coming in to all aspects of tHe welfare state happening in England and Wales as if it was nothing to do with us when usually it's a case of where they go we follow.

Can't see the strike doing anything, too late... Can't see Ford give way on anything and for many the only avenue to "justice" will be to access the courts for themselves. From what I hear things aren't much better in the south?