Without foundation: the government’s attack on access to justice for children and young people

By Sam Hawke

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The recent legal aid proposals threaten to fundamentally change the way society’s most vulnerable members are protected, says Sam Hawke, a volunteer for the Migrant & Refugee Children’s Legal Unit (MiCLU) at Islington Law Centre and JustRights, who followed the Joint Committee on Human Rights evidence session last week.

On Wednesday 23rd October 2013, Parliament’s Joint Committee on Human Rights (JCHR) heard oral evidence on the government’s further plans to cut legal aid. These include the removal from scope of anyone who is unable to prove at least 12-months’ residence in the UK, and the removal of funding for prison law cases involving anything but claims under Articles 5 or 6 of the European Convention on Human Rights (ECHR). Also suggested is the denial of funding for judicial review claims that, for whatever reason, don’t make it past the permission stage, and for judicial review claims deemed ‘borderline’.

The evidence sessions were clear: the biggest victims of these proposals are children, care leavers, victims of sexual abuse and human trafficking – some of society’s most vulnerable people, for whom legal aid provides an indispensable foundation of support without which many may be placed at future risk of harm.

No doubt these proposals should be viewed as part of a wholesale attack on the rights of the politically marginalised, especially as Parliament begins to debate the latest vehicle for the disenfranchisement of migrants, through the Immigration Bill.

Last July, the Committee published a report into the rights of unaccompanied migrant children, to whom the residence test is a particularly acute threat. It concluded that the rights of children are all too often ignored amidst the clamour for immigration control, and much the same can be said for the two proposals before the Committee. Whatever the justification for the proposals – the twin claims of austerity and, more recently, ideology – the oral evidence before the Committee made clear their complete failure to protect the rights of vulnerable children. The evidence demonstrated the fundamental damage these proposals threaten, and should provide anyone strong reason to oppose them.

 “A sea change”

From a time when legal aid covered all that wasn’t expressly excluded, prior to April 2013, to a future where legal aid covers only what has been expressly included under the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO), we meet what Dr Nick Armstrong (Matrix chambers) described as a “sea change”. Now, almost no one gets funding, except where, by s.10 of LASPO (the exceptional case funding regime), an individual’s inability to bring a claim effectively or fairly may result in a breach of Article 6 ECHR.

Martha Spurrier, a barrister at the Public Law Project, revealed how ineffective this regime is: for one, a miniscule fraction of applications have thus far been accepted for funding and not one litigant in person has been successful, some of the very people the exception was designed to help. The problems are tragically simple, as Martha Spurrier noted: if your particular vulnerability precludes you from effectively representing yourself, it’s likely to preclude you from effectively applying for exceptional funding as well. And, as she noted, a Freedom of Information Act request revealed that there’s in fact no training for people operating what the government says is the crucial safety valve by which the problems of LASPO and the new proposals will be solved.

Baroness Helena Kennedy queried whether other exceptions built into the proposals might step in to assist. She received a strong denial, illustrated with a deeply worrying example. Childcare proceedings are one such exception to the residence test. But what if a child runs away from home and seeks the accommodation and protection to which they’re entitled under the Children Act? Unless that child takes with them documents sufficient to prove their 12-month residence in the UK, they won’t receive legal aid if support is wrongly denied them.

Similarly threatened are those with other community care problems, for which there is again no exception: where residence cannot be proved, no legal aid will be provided to help any child seeking assistance for his or her special educational needs. Moreover, even where, for example, victims of child trafficking are receiving legal aid for issues directly related to their plight, they may still need help to access accommodation and other basic services as they attempt to regularise their status. So where assistance with one of a child’s legal issues may fall within scope, that help will then be undermined by the lack of legal aid for the problems that remain.

Or what if the government body tasked with deciding whether or not you’re a victim of trafficking gets it wrong? How will a child challenge his or her failure to be deemed a member of the class of persons for whom exceptions are made? Alistair Pitblado, the Official Solicitor to the Senior Courts, recounted his experience representing young people in disputes as to age and the difficulties they face in providing evidence to the authorities where it’s needed.

Children in prison

Dr Hywel Francis opened the issue of legal aid in prison law cases by recounting the words of Chris Grayling, that there will no longer be any legal aid funding for those who simply don’t like their prison. But, as the Committee heard, his statement was hugely misleading: rather, prisoners may need to move prison to secure access to specific programs their fulfilment of which is essential for rehabilitation. As Laura Janes, Acting Legal Director for the Howard League for Penal Reform, told the Committee, the availability of sexual offences rehabilitation across the country is extremely limited, and so the conditions in a young offender’s institution could truly mean the difference between safe and unsafe release in the future.

Evidence was also heard as to the denial of rights for young people recently released from prison. As Laura Janes also noted, the Howard League runs an advice helpline for young people in prison with nowhere to live on release. Where a Local Authority fails to fulfil its duties to provide accommodation, young people in prison risk being denied eligibility for early release simply for want of a home.

Simon Hughes asked whether the new advocacy services in prisons may assist in fulfilling prisoners’ Article 6 rights and safeguarding an individual’s treatment in prison. Laura Janes stated that they provide an excellent service to imprisoned young people, but can in no way replace or substantially supplement the role of a legal aid lawyer. Their training is largely non-legal and they are, she suggested, vastly overstretched: each advocate allegedly sees 20 children over a 1-hour period a week, amounting to around 3 minutes per child.

Key to the government’s case for the removal of funding for prison law is the supposed adequacy of prisons’ internal complaints mechanisms. Nick Hardwick, the Chief Inspector of Prisons, was highly critical. Despite what he deemed the necessity that prisoners themselves perceive the process as fair, inspections have allegedly revealed two thirds of individuals examined don’t perceive it as such. More worrying still, one out of 10 young people studied refused to lodge complaints out of fear of reprisals from prison staff.

Furthermore, much as with the problems identified earlier, the system’s only safety valves are barely ever operated by those running the system. Funding for legal representation in adjudication before a Prison Governor may be granted on fulfilment of criteria determined in the case of Tarrant. However, as Simon Creighton stated, permission is only ever granted in a tiny fraction of cases. Laura Janes further recounted the case of a suicidal young person who set fire to her cell and was to appear before a Governor: the Committee was asked, if she was denied funding by this route, as she was, who will ever receive it? In fact, the latest proposals threaten to seriously undermine the legitimacy and credibility of the prison system in the eyes of prisoners as a whole. Dr Armstrong related this to a mortal game of ‘Kerplunk’, where the government removes straw after straw as it tests how much it can get away with before ultimate collapse.

Simon Creighton of the Prisoners’ Advice Service provided a particularly distressing example of the kind of tragedy the recent proposals may cause: the disappearance of legal aid for mother and baby cases in prison. These simply cannot be resolved by the internal prison procedures, as they will involve outside authorities such as the Social Services. Moreover, where urgent, the Prison Ombudsman cannot respond quickly enough to provide relief. Critically vulnerable people such as those giving birth in prison may be told that, due to their behaviour (which may itself be linked to their particular vulnerabilities), they cannot remain with their babies. Only where such people can find solicitors willing to pursue a judicial review without any of the preparatory work (that would be excluded from funding) and no background to the case, will such people have any hope of vindicating their legal rights.

Discrimination against children

Questions as to the legality of the proposed changes were also dispatched in similarly strong terms. As Tim Buley (Landmark chambers) stated later in the session, there is a “powerful argument” that the residence test would breach Article 14, prohibiting discrimination in the enjoyment of any ECHR rights, it being a refusal of access to legal aid simply on the basis of an individual’s residency status. But as Ilona Pinter, Policy Adviser at the Children’s Society, later pointed out, this would also be a further breach of the UK’s obligations under Article 2 of the United Nations Convention on the Rights of the Child: children must not be discriminated against on the basis of their status or that of their parents. She further noted research from Oxford University’s Refugee Studies Centre on the 120,000 undocumented child migrants in the UK whose rights are under threat through the enforcement of immigration control. As GPs and nurses begin scrutinising the immigration status of children in their care, the residence test represents a further means by which the government will be able to deny them essential, rights-protecting services.

Simon Hughes asked whether there might be a “legitimate aim”, consistent with past principle and policy, in restricting the scope of certain public services to individuals of more than 12-months residence in the UK. Dr Russell Hargrave, Asylum Aid’s Communications & Public Affairs Officer, demonstrated the fundamental error of such a suggestion: it completely ignores why individuals need help. Take child victims of trafficking, suffering in this country through no fault of their own and often unlikely to be able to prove their residence even if it’s over 12-months in length – confiscation of travel documents provides to their captors a crucial means of control. And so, as Dr Hargrave pithily remarked, the very reasons for which they’ll most likely fail the test are the very reasons for which they need help in the first place.

The importance of legal aid lawyers

Laura Janes noted the role of a legal aid lawyer is not only in enforcing a child’s legal rights in court, but clarifying both their rights and entitlements with authorities – especially where prison services, for example, are under immense pressure and young people are, as a result, routinely ill-advised. This was especially so, Dr Russell Hargave pointed out, with an organisation such as the Home Office that has received multiple judicial criticism for its systemic bureaucratic failings. What will children or their families do, for instance, when the Home Office tells them that their passports have been lost, thereafter stripped of the only documents they have to prove their eligibility for legal aid?

Alison Harvey also noted the effect that the residence test will have on what can already be excruciating delay for families in need of support. She noted the death of an asylum seeker and her son in Westminster last year from a brain infection and starvation, respectively: their dire circumstances revealed the destitution into which many families are thrown by government neglect and delay.

As has been stated by numerous children’s and women’s rights group, Baroness Kennedy enquired as to whether the proposals disproportionately affect women and children. Placing the issue in the wider context of this government’s brutal cuts – which have already been condemned by many as disproportionately affecting women and children – Ilona Pinter stated that it’s becoming increasingly difficult for unaccompanied migrant children to find support from their Local Authorities. She noted a recent Newsnight request under the Freedom of Information Act 2000 that revealed that 119 out of 208 Councils had illegally housed homeless children in Bed and Breakfast accommodation. Nonetheless, the exceptions to the recent proposals don’t include claims in respect of support under ss.17 and 20 of the Children Act 1989, crucial provisions by which homeless children are entitled to accommodation.

As a question from Conservative Baroness Berridge revealed, one particularly galling fact is that the Government remains subject to no formal rules as to which cases it can or cannot pursue: Tim Buley (often representing government) stated his strong suspicion that certain government departments pursue certain cases regardless as to the whether they can meet a border line chance of success. As the Committee heard, a fundamental inequality of arms between state and citizen threatens to be built further into a system designed to vindicate the rights of the most vulnerable people in society, often against government departments resisting out of sheer ignorance of the legal terrain.

A threat to us all

As Tim Buley (of Landmark Chambers) pointed out, it is one thing for the government to attempt to limit the breadth or depth of rights available to non-nationals, or at least those deemed not sufficiently resident in the country. But it is quite another to say that the very modest bundle of rights that non-citizens enjoy are to be rendered unenforceable by the government’s refusal to provide them with legal aid.

Liberal Democrat MP Simon Hughes wondered whether it was fair to say that, if everyone within the jurisdiction of the UK has certain rights, they should be able to enforce them. Allison Harvey, Legal Director of the Immigration Law Practitioners’ Association, was unequivocal: if you can’t enforce your rights, the rule of law simply doesn’t run.

“I am not being alarmist, but there is a deep truth in the adages that the price of liberty is eternal vigilance, and that all it takes for wrong to triumph is for good people to do nothing.” That was said by Lord Neuberger, President of the Supreme Court – giving the JUSTICE Tom Sargant Memorial Lecture on 15th October on ‘Justice in the Age of Austerity’. He was talking about the rule of law, and its destruction by a lack of access to the courts. By the end of the sessions, the precipitous nature of the proposed changes seemed clear.

We’ve only recounted the proposals’ effects on society’s most vulnerable members. Adult migrants, adult prisoners, and a host of other ordinary men and women are seriously threatened by the changes too. Successive governments have pushed us further and further towards the point at which legal assistance for the poor and marginalised will disappear. The cuts that our legal system faces are the worst of a terrible lot, but must not be understood as a fait accompli by the Lord Chancellor. As the JCHR heard last Wednesday, we have every reason to stop him. Let’s act now before it’s too late.

JustRights is a coalition of charities campaigning for fair access to advice, advocacy, and legal representation for children and young people.

See JustRights’ briefings on the impact of legal aid changes on children and young people at http://justrights.org.uk/?q=resources/publications

Contact your local MP – To email them easily, and find suggestions of what to say go to http://www.younglegalaidlawyers.org/write-to-your-mp

Share stories of those who have been helped/protected by legal aid at http://savelegalaid.wordpress.com/

Join #saveukjustice on Twitter for updates and follow @JustRights1 https://twitter.com/JustRights1 and the Migrant & Refugee Children’s Legal Unit (MiCLU) at https://twitter.com/MiCLUteam

If you have any further queries please contact miclu@islingtonlaw.org.uk.

Artwork provided by Jessamy Hawke. For more see www.jessamyhawke.co.uk . No reproduction of this image without the artist’s express permission.

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