JusticeWatch: The MoJ’s ‘culture of refusal’

The MoJ’s ‘culture of refusal’
Lawyers who help people in danger of losing their homes claim they are being forced to take on cases at their own financial risk as the Legal Aid Agency adopts a ‘culture of refusal, reported The Guardian.

Applications for legal aid in homelessness cases has ‘tumbled’ despite a steep rise in the number of street sleepers over the past six years. Figures obtained by the shadow justice minister, Gloria De Piero, through parliamentary questions show that since the 2013 LASPO cuts, applications for civil representation in homelessness cases had fallen by 34%.

Housing lawyers told the paper that applications were being deterred due to strict interpretation of regulations. ‘The LAA are blocking access to justice and making perverse decisions about the merits of cases in situations where the courts, the solicitors and the barristers involved all agree there are good reasons for the matter to be heard in court,’ commented Jo Underwood, the managing solicitor at Shelter.

Simon Mullings, a solicitor at the law firm Edwards Duthie Shamash, said there was growing evidence of a culture of refusal. ‘If legal aid is not granted it means people’s rights are not being enforced,’ he said. Sue James, supervising solicitor in housing at Hammersmith Law Centre, said that as the shortage in legal aid solicitors grew there was ‘an increasing risk that people will find themselves without a housing solicitor to challenge homelessness decisions taken by local authorities. A consequence of this will inevitably lead to more people becoming homeless.’

Public interest
Meanwhile, t
he families of London Bridge terror victims have been refused legal aid. ‘Grieving relatives coming to terms with their loss have now been told inquests won’t be state-funded, and that they are not entitled to legal aid as it is “not in the public interest”,’ reported The Sun.

Yasmin Waljee, senior counsel at Hogan Lovells representing families of six of the victims, described the situation as ‘deeply disturbing’. ‘Their legal aid applications have been turned down on the basis that it would not be in the wider public interest,’ she told The Times.

‘The idea that the state believes families should handle a complex inquest of significant public interest without help is an extraordinary position to take… . The idea that the state believes families should handle a complex inquest of significant public interest without help is an extraordinary position to take.’
Yasmin Waljee

More than 40 MPs have signed a motion demanding that the families of those killed in terrorist attacks are automatically  given non-means-tested funding.

Alarm bells ringing
The Conservative Government was ‘absolutely right’ to review LASPO, wrote the Tory MP Alex Chalk for the Conservative Home site. LASPO was intended to reduce the legal aid budget by £450 million in today’s terms.

‘But in the event, it went further than that,’ Chalk continued. The MP is a member of the House of Common’s justice committee ‘Last year, spending was £950 million less than in 2010. To put that in context, the entire MoJ budget for the year ending 2017 was £7.4 billion,’ Chalk said. ‘That includes total prisons expenditure. Or, put another way, British spending on assistance to Syria alone has been more than the entire legal aid budget.’

‘There is now a serious concern that, without some steps to restore a measure of access to justice, serious injustice will inevitably follow. It would be unacceptable if deserving individuals, with right on their side, found themselves the victim of rough justice (even perhaps street justice) because they were unable to get legal advice or settle their case in court. It goes against the kind of country we are.’
Alex Chalk

Alarm bells were ringing, he said. ‘We can’t ignore them. To protect this pillar of our free society we need to do what Conservatives naturally do when problems can be seen coming down the line: act pragmatically and decisively.’

The MP said that there were two ‘proportionate, cost-effective’ measures that would improve access to justice without ‘blowing a hole in the public finances’: reinstating legal aid for early advice should be restored; and the strict financial eligibility requirements for legal aid should be updated.

Over 35 MPs from have so far signed up to a #TakeYourMPToWork campaign by the All-Party Parliamentary Group on Legal Aid and Young Legal Aid Lawyers (as reported on the Legal Cheek site here). The initiative follows the government’s recent commitment to piloting early legal advice in housing law cut following the 2013 LASPO legal aid cuts

The MPs include legal aid minister Paul Maynard, justice minister Robert Buckland, shadow justice secretary Richard Burgon, as well as former barrister as well as former Tory MP and leader of Change UK Anna Soubry, and Caroline Lucas of the Green Party.

Tribunal delays
Employment tribunals were ‘still being delayed by several months’ and courts ‘not responding to calls’, solicitors told The Law Society’s GazetteA survey by the Employment Lawyers Association found that courts are taking longer to reply to written correspondence than they did a year ago.

Tribunal fees were declared unlawful by the Supreme Court in 2017 and since then claims have more than doubled. ‘While 4,291 single claims were received in January to March 2017, 9,500 were received in January to March 2019,’ the Gazette reported. ‘The number of outstanding cases has also surged by almost 40% compared to the same quarter last year.’ Three quarters of 387 respondents said that replies to written correspondence and applications took longer than they did a year ago.

‘The individual comments from the survey highlight a system that is crying out for more judicial and administrative resource,’ commented Shantha David, solicitor at Unison Legal Services. ‘Of course all of these delays inevitably lead to increased costs for clients. As one respondent put it, it is “embarrassing to explain these delays to clients and leads to a loss of confidence in the rule of law. What is the point of having employment rights if they cannot be effectively enforced?”’

‘Disruptive impact’
Also in the Gazette more on the research into unrepresented defendants which the MoJ attempted to bury (here) before being leaked to BuzzFeed’s Emily Dugan. Congrats to Emily who won the Paul Foot award for her work on access to justice issues here.

The Gazette had a 13-page featuring interviews with six prosecutors and 15 Crown court judges. Unrepresented defendants were perceived to have a ‘disruptive impact’ on court efficiency.

‘Defendants were prone to over-participation, making long speeches not focused on the relevant issue, and giving the court irrelevant correspondence,’ the journal reported. ‘Defendants might continually talk over others and juries were sent out more frequently.’

All the judges said defendants should be represented and were willing to delay a hearing if representation could be obtained.

Possible solutions includes ‘a Crown court duty solicitor scheme, giving defendants access to someone with legal training to help on matters such as assessing strength of evidence, employing legal representatives on an ad hoc basis, judicial discretion to grant representation and training for newly qualified prosecutors on how to manage unrepresented defendants’.

About Jon Robins

Jon is a journalist and has written about the law and justice for the national papers and specialist press for more than 15 years. Jon is a visiting journalism lecturer at Winchester University, a visiting senior fellow in access to justice at the University of Lincoln and patron of Hackney Community Law Centre. He has won the Bar Council’s legal reporter of the year award twice (2015 and 2005). Jon is editor and co-founder of LegalVoice

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