Monday, December 15, 2014 Exceptional legal aid funding should be made available for those fighting deportation in difficult immigration cases, the court of appeal has ruled. The decision is a fresh blow for the justice secretary, Chris Grayling, who has made deep cuts in the legal aid bill. It is his seventh courtroom defeat following a series of judicial review setbacks. There has been widespread criticism of the way in which the Legal Aid Agency (LAA) resists providing support despite explicit legal provision in the 2012 Legal Aid, Sentencing and Punishment of Offenders Act (Laspo) for funding in “exceptional cases. Three appeal court judges, the master of the rolls, Lord Dyson, Lord Justice Richards and Lord Justice Sullivan, refused to overturn a ruling in the high court earlier this year which said that the guidance issued by Grayling was unlawful and too restrictive. The lower court had quashed refusals of legal aid in six cases where it said the guidance “sets too high a threshold” and produces unfairness by denying publicly funded legal advice to applicants in exceptional cases. The cases involved EU nationals appealing against decisions that they should be deported following criminal convictions, an alleged victim of trafficking from Nigeria and other cases involving the right to enter and remain in the UK. The high court indicated that in some of the six cases legal aid should have been granted, but said all of them must be reconsidered in the light of the ruling. The Laspo legislation was introduced to reform the legal aid system by Kenneth Clarke, Grayling’s predecessor, in order to cut the legal aid bill by £350m a year by 2015. The act made wide-ranging changes to the provision and scope of legal aid, including for immigration cases. Most of the reforms came into force on 1 April 2013. The Court of Appeal said that the LAA should have provided legal aid to three of the five cases being considered. The LAA had already provided help to the sixth case before the appeal started – resulting in a 4-2 defeat for Grayling. In its unanimous judgment, the appeal court judges said: “The [MoJ] guidance is not compatible with article 6(1) [of the European convention on human rights which guarantees a fair trial] and article 47 [of the EU charter of fundamental rights]. It impermissibly sends a clear signal to caseworkers and the director [of the LAA] that the refusal of legal aid will amount to a breach only in rare and extreme cases. “... The guidance is not compatible with article 8 of the convention [right to family life] in immigration cases. As is now conceded by [Grayling], para 60 of the guidance wrongly states that there is nothing in the current case law that would put the UK under a legal obligation to provide legal aid in immigration proceedings in order to meet its procedural obligations under article 8.” The judges added: “We would point out that, in some circumstances, legal advice to the litigant in person may be more important than legal representation at the hearing for ensuring effective access to justice. We suggest that consideration be given to whether, in an appropriate case, [exceptional funding] be provided for early legal advice even where it is not considered to be necessary for representation at the hearing.” Commenting on the judgment, shadow justice minister Andy Slaughter said: “Just when you thought the mess around the government’s legal aid changes couldn’t get any worse, new depths are plumbed. The government’s legal aid cuts were rushed through before preparing the necessary evidence to justify them. “Labour, alongside most of the legal profession, warned that this would lead to miscarriages of justice and would raise substantial barriers to access to justice. David Cameron should listen and fix the mess he has created.” In a further challenge to MoJ cuts in legal aid, both the Law Society, which represents solicitors in England and Wales, as well as the London Criminal Courts Solicitors’ Association (LCCSA) have launched judicial review cases seeking to overturn Grayling’s attempts to reduce the number of legal aid contracts available to law firms who deal with criminal cases. Jon Black, president of the LCCSA, said: “This [ruling]... shows the government’s misplaced determination to ignore warnings and continue hell-bent on a course of denying justice to those most in need of it, won’t wash with our judges. “At a time when Mr Grayling is on a mission to curb judicial reviews, today’s judgment by the second highest court in the land serves as a timely reminder that there’s a long line of judges who are prepared to exercise their judicial independence in assessing the harm and potential harm to our justice system and those entitled to its protection. “As we ourselves have no choice but to also look to the high court to assess the legality of slash-and-burn proposals for criminal defence in magistrates courts and police stations, we urge Mr Grayling to think again before another of his reforms becomes a costly and devastating experminent.” Bill Waddington, chair of the Criminal Law Solicitors Association, said: “[The] ruling is yet another blow to the Lord Chancellor’s legal aid cuts. He has now lost a number of JRs in a row, yet his wrong-headed reforms continue to roll on apace and will place legal representation beyond the reach of all but the wealthy. “The right to representation is not a welfare benefit, it is a democratic right and that is why, in conjunction with the LCCSA, we have notified the MoJ that we will launch a JR into the unlawful nature of the proposed two-tier contract. “If we do not act now we will consign the cherished principles of equality before the law and access to justice to the dustbin of history, and as we approach the 800th anniversary of the Magna Carta that would be an ironic tragedy.” An MoJ spokesperson said: “We note the judgment and will carefully consider our next steps. We continue to believe that the exceptional funding scheme is functioning as intended. Its purpose is to provide funding where it is legally needed. Legal aid is a vital part of our justice system but resources are not limitless and must be properly targeted at the cases that need it most. The system must be sustainable and fair for those who use it and the taxpayers who pay for it.”
Posted on: Mon, 15 Dec 2014 17:25:59 +0000
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