Posted on February 22nd 2011
We’ve just put up on our website another consultation response - this time to the MOJ consultation on the reform of Legal Aid which was due for submission last week. Apparently the MOJ were flooded with responses and as such their inbox actually crashed on the final day! Legal issues We've previously set out our key general concerns about these provisions. In this particular response we went on to highlight some of the legal problems that might arise from the proposals. So far as the asylum support proposals go there seems to be a real risk that the provisions would not be consistent with Article 21(2) of the EU Reception Directive. This requires domestic law to make provision for access to legal assistance to pursue appeals against negative decisions- and should be read in the context of Article 47 of the EU charter which obliges states to provide free legal assistance to those lacking sufficient means. Of course we've also pointed out that other exclusions, in so far as they affect matters that fall within the the scope of Community law in any way, could also be unlawful given that Article 47 of the EU Charter, but also EC general principles/case law on Article 6 ECHR on the provision of legal aid (which can’t ordinarily be relied upon in immigration cases) could potentially come into play. On top of that, we've highlighted an issue about how these provisions sit with Article 8 ECHR in the case of overstayers with Article 8 claims who are prohibited from working/accessing benefits, but are also required to pay for tribunal fees (as they will not be entitled to legal aid). Evidence based policy making? Perhaps more interesting than all of the above is LSC research that we’ve dug up on the subject in the light of some of the asesrtions made in the Green Paper. The LSC has an interesting legal research centre. There’s a lot of fascinating stuff here which we heavliy relied on in our response. In particular reserach commissioned by the LSC, Causes of Action: Civil law and Social Justice found that:
- The provision of legal aid at the beginning of a problem can save money in the long run.
- The provision of legal aid plays a key role in reducing public expenditure overall.
- Respondents represented at courts or tribunals do fare considerably better than those who were unrepresented.
- Respondents who obtain advice are far more successful in securing whatever their objectives are.
- Respondents whose advice is funded by legal aid are more likely than others who obtained advice to secure some or all of their objectives.
- Justiciable problems have additive effects so that each time a person encounters one justiciable problem, they often tend to encounter others.
- Justiciable problems directly impact on, and relate to health, education, housing, welfare, commerce, citizenship, policing and communities.
- Telephone advice (a single gateway through telephone advice is proposed in the paper) is not a cheap alternative to face to face advice, and that this is unsuitable for certain groups- asylum seekers and immigrants happen to fit into those categories.