Saturday, 28 August 2010

UK legal aid cuts - Fiat justitia ruat caelum

law lawImage via WikipediaSource: Migrants Rights Network

Fiat justitia ruat caelum is a Latin legal phrase, meaning "May justice be done though the heavens fall."

By Jan Brulc

In the weeks before Refugee and Migrant Justice (RMJ) went into administration, Migrants' Rights Network sent a letter to the Ministry of Justice (MoJ), highlighting some of the issues that cropped up in the process leading to the closure of RMJ, mostly related to the Legal Aid reform and the new system of payment of legal aid to organisations representing their clients.

It wasn’t till recently that we received a reply from Ministry of Justice. The letter we've sent to them was based on the template RMJ communications team circulated among their contacts. So, I would imagine that everyone else who took the time to write to Kenneth Clarke (we haven’t heard back from Mr Damian Green, and it seems that emails sent to the Government don't oblige them to write back), got a similar reply. And for that reason, it is worth dissecting a few statements from the letter.

Let's begin with this: “Though some initial disruption is unfortunately inevitable [with the transfer of work to new service providers], every effort will be made to minimize this.”

Two days ago a statement from the Legal Service Commission (LSC) confirmed that of the 12,500 live cases handed to them after the closure of RMJ, all had now either been marked as closed by the LSC staff or transferred to another provider. Sounds good, except that it's not. It was the death of Osman Rasul in the beginning of August, that made it abundantly clear that the transfer was not a smooth process. Far from it and the background on the case of Mr Rasul highlights this. Mr Rasul had needed to pursue his application to remain in the UK through an appeal. And while more than 1,300 asylum appeals were successful in the first quarter of 2010 alone, these are extremely costly and asylum seekers are regularly turned away by their legal representatives, because the work isn’t profitable.
RMJ on the other hand provided the safety net for some of these individuals who were left down by their initial lawyer and the system's poor initial decision making. RMJ has had a 50% success in the appeals in the immigration courts in 2009. On the day of his suicide the destitute Mr. Rasul had been informed that RMJ, the charity that provided him with legal aid services, had been forced into closure.

Now we read again, about another charity providing legal advice, this time the Greater Manchester Immigration Aid Unit facing a 70% cut in legal aid from October. They like RMJ provide legal assistance to asylum seekers with the most complicated cases (usually appeals) and don't brush aside cases that are not profitable. The organisation has launched its appeal for help, following a similar strategy RMJ used, asking people to write to the Rt Hon Kenneth Clarke.

So if we post our letters now to Ministry of Justice at 102 Petty France, will we read another offical reply printed on the Government headed paper in a couple of months, with an opening line “I have been asked to reply and apologise for the time taken to respond”?!

Let's move on. The letter continues: “An increased number of offices applied to do the work and bid for more than double the amount of cases available. Applicants were notified of the outcome of the tenders on 28 June. The LSC will now work with those organisations to ensure there is continuing quality asylum advice for all categories of clients.”

But does this really mean that the same level of service will be guaranteed as previously. Well, if we look at some of the statements made recently by Refugee Council and Law Society highly unlikely. A point perhaps not stressed enough in the recent media reporting which is crucial here, is that the new system of legal aid operates on a fixed fee regime, which effectively penalises good quality work.

The amount of work charities put into individual cases in order to do a good job and achieve the above average success rate is simply unworkable on a fixed fee system. So the quality of work will drop, especially when it comes to complicated cases where it simply doesn’t pay off to put in the extra hours. And here again the letter is quite telling in saying that "they [RMJ] did not make the efficiency savings that other did"! I would hate to imagine that the efficiency they are referring to equates to working faster and putting in less hours on cases that require more work.

But why take my word for it. Here is an excerpt from a report by ICAR summarising the views of Asylum Aid, ILPA and Children’s Society on changes in Legal Aid: “It is felt that fixed fees (…) will deter advisors from taking on cases that are too complex and encourage practitioners to cut corners.”

And while the letter hails the fact that “offices applied for more than double the cases available”, can someone explain to me how does the number of bidders translate into a quality service. Especially when according to Law Society chief executive Desmond Hudson almost 50 per cent of firms previously doing legal aid haven’t received further work, which leaves tens of thousands of clients out to find another representative in October.
Will this then mean that in October, when we write yet again to MoJ, enquiring about what will happen to all the clients looking for new representatives, a reply might read “Though some initial disruption is unfortunately inevitable, every effort will be made to minimize this”?!

We will continue to monitor the developments and post items in our news section, so if you haven’t yet, subscribe to the weekly newsletter and stay up-to-date.
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