By James Drennan, Advocacy team volunteer
The rule of law, the cornerstone of the British legal system, states that each case which is alike should be treated the same, and further, that each citizen/subject has the right to be protected from unjust discrimination by the state. Everyone, finally, is entitled to the protection of the state, and can only be deprived of their liberty after careful consideration from a court of law, this after having his or her position fairly represented.
It seems, however, that words such as ‘fairness’ and ‘equity’ in Britain are increasingly being defined as relevant only to those who have residency and – sometimes more importantly – money, something evidenced by the much-debated Legal Aid and Sentencing and Punishment of Offenders (LASPO) Act, which effectively cut legal aid in sectors such as immigration and criminal justice to such an extent that many firms specialising in these areas have been forced to move to more lucrative work or wind up their firm. Threats to legal aid, however, haven’t stopped there; the Ministry of Justice are now proposing to cut legal aid even further.
Under the proposed plans, eligibility requirements will be enhanced, this to curb public funding in cases that ‘do not justify’ it, ultimately for the purposes of saving money. They estimate £220 million per year, if the figures are to be believed – which, if one takes into account massive secondary and tertiary expenditures (such as appeals for cases that have been poorly represented via poor or absent legal counsel) they probably shouldn’t.
Most strikingly, those not having lawful residency in the UK for twelve months prior to the commencement of their case would be exempt from assistance, save in initial asylum claims. Sadly, the decision to scupper legal aid for this last group cannot even to be said to have a cost benefit: even the Ministry’s in-house analysis estimates ‘negligible’ savings at best.
The effects of this proposal on those seeking asylum and refugees with status – those otherwise having the right of residency as part of the UK’s responsibilities under the 1951 Convention on the Status of Refugees – would, quite frankly, be disastrous from a legal perspective. For instance:
- Individuals many who have been detained under immigration powers, would not be eligible for funding to apply for judicial review.
- Civil cases, such as divorce, custody and housing proceedings, would require anyone without 12 months’ residency (including asylum-seekers and recently-established refugees) to prepare their cases in the all-too-common event where they don’t have thousands of pounds to privately pay for a legal team. In other words, an established refugee – who not only has every right to access housing, but in many cases may have mental/physical health issues that could result in vulnerability – and had been unlawfully denied suitable accommodation would find him or herself unable to seek counsel.
- Individuals who often have very little command of English as a spoken language would now be tasked to use it as a technical one, appearing in their own defence, or would be left unaware of their legal position – or even how to follow correct procedure in pursuing a case.
- This would include cases where an asylum-seeking individual has new evidence, and is therefore filing a fresh claim – many of these cases currently result in a successful outcomes, wherein their fears are proven well-founded. The protection of these individuals would be called into question should this proposal be implemented.
One of the many enviable tenets of the British way of life, and how we perceive ourselves, is our mindfulness of having a well-developed, and fair, justice system. This is nowhere more important than in cases where the person who needs to avail him or herself of its protection is fleeing persecution – often at the hands of those tasked to protect these rights in their home country.
Legal aid allows those most vulnerable in our society, often children, to be fairly represented in legal matters – the proposed changes will result in those escaping unfair punishment at the hands of state actors finding themselves in a similar situation here – where the state is less interested in justice, and more interested in checking its (still-shrinking) bank balance.