tag:theconversation.com,2011:/global/topics/legal-aid-7503/articlesLegal aid – The Conversation2024-02-14T23:35:14Ztag:theconversation.com,2011:article/2236272024-02-14T23:35:14Z2024-02-14T23:35:14ZEnding legal aid for cultural reports at sentencing may only make court hearings longer and costlier<p>The government’s move to remove legal aid funding for what are commonly known as <a href="https://www.culturalreports.nz/for-defendants">cultural reports</a> at sentencing has been <a href="https://www.nzherald.co.nz/nz/politics/prime-minister-christopher-luxon-fronts-media-as-clock-ticks-on-100-day-plan/TPUOCXQ73ZH7FKX3FDLTLN5T4U/">wrapped up in rhetoric</a> about restoring “personal responsibility”, reducing “discounts” or “reductions” on sentences, and <a href="https://www.beehive.govt.nz/release/government-law-and-order-crackdown-begins">saving money</a>.</p>
<p>This may be popular, even populist, but it carries the risk of not achieving any of those purported goals. In fact, court hearings may become longer and more expensive.</p>
<p>To understand why, we need to look at the entire process of sentencing. It is governed by the <a href="https://www.legislation.govt.nz/act/public/2002/0009/latest/DLM135342.html">Sentencing Act 2002</a>, which requires judges to take into account many factors when considering a sentence.</p>
<p>Based on the facts of a case, judges must decide on the purpose of sentencing. For example, should it be for punishment, deterrence or rehabilitation? </p>
<p>Judges must also take into account various principles, including the seriousness of the offence, the defendant’s level of culpability, and any circumstances that make a sentence particularly severe.</p>
<p>There are also various aggravating and mitigating factors, such as the motive for the offence, the level of planning, and whether the defendant has any intellectual restrictions.</p>
<h2>What judges must take into account</h2>
<p>Take a simple offence such as shoplifting. There is a difference between someone who shoplifts expensive items to sell them, and so is in the business of shoplifting, and someone who steals food for their family. </p>
<p>Even within the former group, there is a difference between someone who has been persuaded to be involved because they are suggestible, and someone who has no such impairment.</p>
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<p>Judges also need to be aware of the likely effect of a sentence. Will a person be particularly vulnerable in prison, for instance? Will prison lead to a cycle of re-offending, maybe from gang recruitment? Is there any other action more likely to prevent re-offending? </p>
<p>In short, judges need a lot of information to help reach a proper sentence. This may have to come from experts, including reports from psychiatrists or psychologists when there is a mental health or impairment issue, as is often the case. </p>
<p>Similarly, reports about alcohol or drug use that cause a disproportionate amount of offending can be introduced from relevant specialists.</p>
<h2>Reasons for offending</h2>
<p>Probation officers are one source of information under <a href="https://www.legislation.govt.nz/act/public/2002/0009/latest/DLM135581.html">section 26</a> of the Sentencing Act. They may provide material relating to the cultural and social circumstances of an offender and make recommendations. </p>
<p>But probation officers have limits: they may not have much time and may not have the necessary expertise. This is where <a href="https://www.legislation.govt.nz/act/public/2002/0009/latest/DLM135583.html">section 27</a> of the Sentencing Act comes in. It provides for an additional source of this information, which has been available for almost 40 years. </p>
<p>When parliament passed the <a href="https://www.legislation.govt.nz/act/public/1985/0120/latest/whole.html">Criminal Justice Act 1985</a>, section 16 allowed a request for the court to hear from someone about a person’s “ethnic or cultural background”, how that might be relevant to the reason for offending, and how it might help avoid further offending. Any offender could use this provision. </p>
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<p>When the Sentencing Act 2002 was introduced, this provision was continued and expanded. The offender may now ask for someone to address their “personal, family, whanau, community, and cultural background”. </p>
<p>More particularly, they can address how that might have been part of the offending, how it might be relevant to any sentence, and how support might help prevent further offending. Again, any offender can use this provision. </p>
<p>Its significance is underlined by the provision that the court can only refuse to hear the information if “special reasons” make it “unnecessary or inappropriate”. And if no request is made, the judge may suggest it.</p>
<h2>The right to a fair trial</h2>
<p>To be clear, there is no proposal to remove this long-standing right to use section 27 reports. The only proposal is that legal aid will not fund them. </p>
<p>It is true that the cost to legal aid has risen significantly in recent years. But this is partly because it has been clarified that legal aid was the correct funding mechanism for cultural reports. </p>
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<p>The Ministry of Justice used to pay for them because they were considered a court report. But this was stopped and the reports became a <a href="https://www.stuff.co.nz/national/crime/106498201/ministry-stops-funding-court-reports-that-examine-cultural-context-of-crimes">disbursement for legal aid</a>. </p>
<p>Also, senior judges have been clear these reports can contain useful information, meaning other judges have become more willing to consider them. The fundamental right to a fair trial includes a fair sentencing hearing, with the judge having all information that is useful. </p>
<h2>Shifting costs elsewhere</h2>
<p>Without legal aid funding for section 27 reports, then, what will happen? Obviously, those rich enough not to rely on legal aid will be able to use them. </p>
<p>On one level, therefore, there will be an additional barrier to equal justice for those who are poorer. Since Māori make up over 50% of the prison population, this inequity will also have an ethnic component.</p>
<p>But this obvious unfairness is something judges and lawyers will try to avoid. </p>
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<p>Defence lawyers have a professional responsibility to make sure all relevant information is put before the court. If this cannot come in the form of a report prepared by someone with the relevant expertise, the lawyer will have to look elsewhere.</p>
<p>So, we can expect lawyers to ask other experts, including drug counsellors or psychiatrists, to collate and include relevant information. </p>
<p>Lawyers may also request information from child welfare agency Oranga Tamariki, or from medical notes, to collate and put before a judge. Expect more oral evidence to be called – from social workers who might have had a role in the offender’s background, for example. </p>
<p>In short, expect longer court hearings and more time put in by lawyers. This will potentially cost a lot more than any savings to legal aid from not funding section 27 reports.</p><img src="https://counter.theconversation.com/content/223627/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Kris Gledhill is currently working on a project relating to the Sentencing Act 2002 the expenses for which are funded by the Borrin Foundation. He is also a co-opted member of the Criminal Bar Association's Executive Committee. The views expressed in this article are his own. </span></em></p>The right to a fair trial means cutting the funding of cultural reports will simply shift the burden. Lawyers will find other ways to put the same information before a judge.Kris Gledhill, Professor of Law, Auckland University of TechnologyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2070452023-06-07T16:48:56Z2023-06-07T16:48:56ZThe legal aid sector is collapsing and millions more may soon be without access to justice – new data<figure><img src="https://images.theconversation.com/files/530326/original/file-20230606-21-c0vhx5.jpg?ixlib=rb-1.1.0&rect=232%2C100%2C4935%2C3337&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">A sector on the verge.</span> <span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/law-offices-lawyers-legal-statue-greek-618830477">edwardolive/Shutterstock</a></span></figcaption></figure><p>The UK government has <a href="https://www.gov.uk/government/consultations/legal-aid-means-test-review/outcome/government-response-to-legal-aid-means-test-review--3">announced changes</a> to legal aid access in England and Wales, updating means test thresholds to account for inflation. These thresholds are the maximum amount of capital or income that a person can have to be eligible for legal assistance at public expense. </p>
<p>Under these changes, the government estimates that over 2 million more people will be eligible for civil legal aid each year. Eligibility, though, is not the same as access. The reality is that fewer and fewer people have access to civil legal aid advice and representation, because provision is collapsing. </p>
<p>Civil legal aid covers issues like housing, mental health, community care, immigration and asylum, and family law. The scope of these was much reduced by austerity measures in the Legal Aid, Sentencing and Punishment of Offenders <a href="https://www.legislation.gov.uk/ukpga/2012/10/contents/enacted">(LASPO)</a> Act 2012. </p>
<p>I obtained legal aid provision figures from the Ministry of Justice’s Legal Aid Agency, via a freedom of information request, covering the 12 months from September 2021 to August 2022 (the last full year available). The numbers, combined with <a href="https://www.gov.uk/government/publications/directory-of-legal-aid-providers">publicly available data</a>, paint a picture of a collapsing sector. </p>
<p>There was a 20% <a href="https://www.lag.org.uk/article/214219/the-new-lord-chancellor-faces-a-legal-aid-sector-on-the-verge-of-collapse">reduction</a> in the number of housing legal aid providers in the 18 months to March 2023. The same period saw a 21% loss of legal aid providers for mental health, and a 27% loss in welfare benefits. In immigration and asylum, over 30% of the providers given contracts in September 2018 had stopped doing legal aid work by March 2023.</p>
<p>Providers (private law firms or charities) are given contracts by the Legal Aid Agency to provide legal aid in specific areas of law – but they cannot be compelled to take on cases.</p>
<p>In fact, the current situation is worse than even these figures suggest, because 30% of the housing provider offices (129) did not undertake any new legal aid cases in the year to 31 August 2022. Nine of the 131 geographical “procurement areas” in England and Wales saw no new housing cases opened in that year. </p>
<p>Often, this is because they are unable to recruit any qualified lawyers on the salaries available, or because they cannot afford to take on legal aid cases. Others take on very small numbers of cases because they are at capacity, given the number of lawyers they can afford. </p>
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<p>In welfare benefits, a staggering 71% of offices did not report any new legal aid cases in the year, though this is largely because legal aid is now only available for Upper Tribunal and higher court appeal cases. </p>
<p>Even in community care, which was much less affected by the LASPO cuts, 41% of the 127 contracted offices undertook no new legal aid matters in the year, and 17% of offices stopped doing legal aid work in the 18 months to March 2023. Only ten new matters were reported in the north-east of England, and 12 in the south-east (excluding London).</p>
<h2>Demand outstripping supply</h2>
<p>Importantly, these figures do not indicate a lack of demand for the services of legal aid providers. In asylum, the last year saw <a href="https://rli.blogs.sas.ac.uk/2022/11/04/new-freedom-of-information-data-indicates-half-of-asylum-applicants-are-unable-to-access-legal-aid-representation/">at least 25,000</a> more applicants for legal aid than providers had capacity to take on. This is at least a 45% deficit, and only includes main applicants (not their dependants).</p>
<p>A housing lawyer <a href="https://www.lawgazette.co.uk/news-focus/news-focus-laspo-at-10-can-the-damage-be-undone/5115627.article">described</a> having so much demand at her firm that they have to allocate a senior solicitor to triage the most desperate cases, turning away the rest. </p>
<p>There is a clear regional inequality to provision of legal aid. For example, the Legal Aid Agency <a href="https://www.gov.uk/government/news/civil-news-further-tender-to-replace-hpcds-services-opens">failed</a> to find any providers at all for 11 areas to deliver its new, court-based early advice scheme to prevent housing loss. </p>
<p>Legal aid providers report difficulties recruiting across all areas of law, given the loss of lawyers and the overall low fees. Civil legal aid fees have <a href="https://publiclawproject.org.uk/content/uploads/2023/01/230123_New-Fees-for-New-Services-consultation-response-ILPA-PLP-statement.pdf">not increased at all</a> since fixed fees were introduced for most work in 2007, and have fallen significantly in real terms. </p>
<p>There is also a huge amount of unpaid admin and bureaucracy imposed by the Legal Aid Agency. There are serious delays in payment to providers because most work is paid for at the end of the case. But lawyers often cannot close and bill their cases because of slow processing by government departments and the courts.</p>
<h2>An unworkable policy</h2>
<p>Even after the <a href="https://lapg.co.uk/lapg-statement-on-the-governments-published-response-to-the-legal-aid-means-test-review/">means test changes</a>, in England and Wales the new limits to qualify for legal aid are £7,000 in capital (such as savings and other financial assets) and gross income of no more than £946 a month (£11,352 per year), with additional allowances for dependants. A person might also qualify for legal aid, but have to pay a contribution, if they have a disposable (rather than gross) income of up to £946 per month.</p>
<p>There is no regular review mechanism to update these limits in line with inflation. Critics point out that this consultation, launched in March 2022, was already out of date by the time the response was published in May 2023.</p>
<p>There is <a href="https://walkerlaird.co.uk/legal-aid-in-scotland-a-guide-to-eligibility-legal-aid-contributions/">greater eligibility</a> in Scotland. The threshold for capital is £13,017 and the disposable income threshold for full legal aid is £3,521 per year. Clients with disposable incomes of up to £26,239 remain eligible to pay legal aid rates rather than private rates, though they may have to contribute more as their income goes up.</p>
<p>The UK’s legal aid capacity crisis has been a long time building, but it has come to a head with cost of living concerns – and is likely to become even sharper with the government’s plans to <a href="https://theconversation.com/how-the-uks-plan-to-send-asylum-seekers-to-rwanda-is-21st-century-imperialism-writ-large-181501">remove asylum seekers to Rwanda</a>. Civil servants have reportedly warned the government that it will <a href="https://www.theguardian.com/uk-news/2023/may/25/braverman-bill-could-lead-to-3000-asylum-seekers-being-deported-a-month">have to increase legal aid fees</a> for asylum work, otherwise it will be impossible for people to access legal advice before being removed. </p>
<p>If the UK government fails to ensure the viability and availability of legal aid, there will be no more lawyers to provide advice and representation for millions of <a href="https://theconversation.com/the-home-office-is-sabotaging-its-own-plan-to-tackle-the-asylum-backlog-200759">newly-eligible</a> (and desperately needy) people. This is what happens when legal aid is cut too far. The system survives for a period of time on goodwill, and then it collapses.</p><img src="https://counter.theconversation.com/content/207045/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Jo Wilding receives funding from the ESRC for the research on which this article is based.</span></em></p>Numbers obtained through a freedom of information request reveal the dire state of the legal aid sector in England and Wales.Jo Wilding, Lecturer in law, University of SussexLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1891932022-08-24T13:42:36Z2022-08-24T13:42:36ZCriminal barrister strike is no surprise – their pay can start at less than minimum wage<p>Criminal barristers in England and Wales <a href="https://www.theguardian.com/law/2022/aug/22/barristers-england-wales-vote-indefinite-strike">have voted in favour</a> of an all-out, indefinite strike after years of declining pay. This industrial action will begin in the first week of September and escalates existing instances of withdrawn labour in relation to cases funded by criminal legal aid.</p>
<p><a href="https://www.criminalbar.com/resources/news/ballot-announcement-22-08-22/">Nearly 80%</a> of the roughly 2,000 members of the Criminal Bar Association taking part in the ballot voted to move to an uninterrupted strike. This situation will continue for the foreseeable future until barristers see signs of their demands for a 25% increase in pay being met. </p>
<p>This is not without risk for barristers, who could potentially face fines or professional sanctions. Many practitioners have felt intimidated by a <a href="https://www.thetimes.co.uk/article/lord-chief-justice-accused-of-trying-to-intimidate-striking-barristers-v09qkm955">message sent by the lord chief justice</a> to crown court judges, which said that striking barristers should be referred to regulators.</p>
<p>But barristers are desperate. <a href="https://www.criminalbar.com/resources/news/cba-ballot-june-2022/">They are reacting to</a> a decrease in real earnings of 28% since 2006, including earnings from legal aid falling by 23% over the pandemic. The relatively low rates of pay, especially for junior barristers, mean that high numbers of practitioners are leaving the profession, putting more pressure on those who stay.</p>
<p>Although issues of underfunding in legal aid go back decades, the renewed strike action has been prompted by the recent <a href="https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/1041117/clar-independent-review-report-2021.pdf">independent review of criminal legal aid</a>, which recommended that fees be increased by a minimum of 15% without delay. </p>
<p>The review also highlighted that the likely starting income for criminal barristers was £9,000 to £10,300 a year. This means many are effectively working for well below the minimum wage – while some commercial law firms offer starting salaries of up to £100,000.</p>
<p>So junior criminal barristers typically earn dramatically less than they could for work that nonetheless requires high levels of expertise and is extremely challenging. This leads many to leave the profession before they reach higher pay levels, which also affects the diversity of the bar. The review identified that women and ethnic minorities in particular are leaving.</p>
<p>The Criminal Bar Association is concerned that <a href="https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/1060773/clair-government-response-conultation-print.pdf">the government’s response</a> to the review was underwhelming and lacking in urgency. The government would only agree to increase fees by the minimum recommended amount of 15%, far less than the 25% that <a href="https://www.theguardian.com/law/2022/jun/27/criminal-barristers-begin-strike-in-row-over-legal-aid-fees">the criminal bar association say</a> is needed to support barristers. </p>
<h2>Working overtime</h2>
<p>Strike action has not been taken lightly and the <a href="https://victimscommissioner.org.uk/news/annual-report-courts-backlog/">impact will be considerable</a>. The backlog in the courts means more time on remand for defendants and an agonising wait for victims and their families. Yet, a continuation of industrial action comes as no surprise to those of us researching legal aid in England and Wales. </p>
<p>Together with our colleagues <a href="https://research.monash.edu/en/persons/catrina-denvir">Catrina Denvir</a> and <a href="https://research.monash.edu/en/persons/jess-mant">Jess Mant</a>, we recently conducted the legal aid census, the <a href="https://lapg.co.uk/wp-content/uploads/We-Are-Legal-Aid_Findings-from-the-2021-Legal-Aid-Census_Final.pdf">largest ever workforce survey</a> of legal aid lawyers on behalf of <a href="https://lapg.co.uk/">Legal Aid Practitioners Group</a>. Our analysis will also be the subject of an upcoming book, Legal Aid and the Future of Access to Justice.</p>
<p>Our work on the legal aid census found that for legal aid lawyers generally (not just criminal barristers), pay is a significant concern. The most common salary for all practitioners is between £30,000 and £39,999, and the majority of practitioners earn less than £49,999, despite many holding senior positions. </p>
<p>More than half of legal aid practitioners either disagreed or strongly disagreed that the salary and working conditions for their roles were fair. Some 94.3% of practitioners reported working more hours than what they were paid under different types of “fixed” fees. On average, legal aid lawyers work 106 minutes for every 60 minutes of pay. </p>
<p>In reality, there is no such thing as being paid “overtime”. Preparing documents for court, dealing with clients, waiting for cases to start, and wasted work on those that don’t, all involve many hours of work without pay. It is unsurprising that half of legal aid practitioners told us that their work has an overall negative impact on their wellbeing. </p>
<p>We found that across all areas of legal aid work, criminal law is where it is most challenging for barristers to take on new cases. The most common reason for this was due to financial constraints, often related to difficulties recruiting and retaining junior barristers to do the work. Alarmingly, criminal lawyers comprised 29.6% of all those in our survey who had left the sector. The future of the profession is very much in doubt.</p>
<p>The strike will continue until there are signs from the government of a real commitment to change in terms of meeting the requested higher rates of pay. A system underwritten by collective goodwill can only cope with so much strain. The criminal justice system is at risk of complete collapse without fair remuneration for its workers.</p><img src="https://counter.theconversation.com/content/189193/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>The authors do not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and have disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Ongoing strike action by criminal barristers could disrupt trials until demands for better pay are met.Daniel Newman, Senior Lecturer in Law, Cardiff UniversityJacqueline Kinghan, Senior Lecturer in Law, University of GlasgowLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1716632021-11-12T01:30:14Z2021-11-12T01:30:14ZNew Zealand’s legal aid crisis is eroding the right to justice – that’s unacceptable in a fair society<figure><img src="https://images.theconversation.com/files/431603/original/file-20211112-638-vumywu.jpg?ixlib=rb-1.1.0&rect=19%2C9%2C6557%2C2544&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><span class="source">Shutterstock</span></span></figcaption></figure><p>Most lawyers are happy to accept we’ll never be as popular as doctors. We are probably on a level with dentists: nobody really wants to see them – until they have a toothache. </p>
<p>Same with lawyers. Having to sort out a legal dispute without a lawyer can often be as problematic as doing dentistry on yourself. </p>
<p>Disputes about all sorts of things – bullying bosses, violent spouses, governmental overreach, custody of children, what happens to people with dementia – can end up in court. Judges are given significant powers over us. They can take away liberty, property and children; they can order psychiatric treatment. </p>
<p>That is why the right to a fair trial is such a fundamental one – and why the legal aid system is integral to that fairness. So, the recent
<a href="https://www.lawsociety.org.nz/news/law-society-statements/thousands-suffer-in-justice-squeeze-legal-aid-a-covid-response-crisis/">Law Society survey of lawyers</a> that found the legal aid system is “on life support” is cause for deep concern.</p>
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<h2>Balancing the odds</h2>
<p>Our court system is largely based on the adversarial model, whereby arguments are made from those involved and the neutral judge (or judge and jury) makes a decision. This requires what is termed “equality of arms” – essentially, equal access to lawyers. </p>
<p>Otherwise, there is an imbalance, which might lead to an unfair result with significant adverse consequences. This is also why legal aid is of fundamental importance to a society that values equity. </p>
<p>Governments, corporations and well-resourced organisations will invariably have lawyers. Society pays for these in full if they are working for public bodies. Society also pays in part for lawyers who represent commercial bodies, since their fees will be allowable against income and so, will reduce taxes paid. </p>
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<p>It has long been accepted that society has to provide lawyers for those who face the power of the state in criminal proceedings. In 1912, the New Zealand Parliament <a href="http://www.nzlii.org/nz/legis/hist_act/jotpaa19123gv1912n12345/">enacted a legal aid system</a> for criminal defendants who did not have sufficient means. The starting point was to pay those lawyers at the same rate as prosecuting lawyers. </p>
<p>But many important decisions are also made in the civil courts. A <a href="http://www.nzlii.org/nz/legis/hist_act/laa19393gv1939n42144/">legal aid scheme for civil proceedings</a> was introduced in 1939, aimed at “poor people”. </p>
<p>When the system was <a href="http://www.nzlii.org/nz/legis/hist_act/laa19691969n4791/">revised and extended in 1969</a>, the aim was to make better provision for those of “small or moderate means”. This also proposed that legal aid lawyers should be paid 85% of the rate they would otherwise have charged. </p>
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<h2>Lawyers abandoning legal aid</h2>
<p>Much has changed since. If you get legal aid now, it is in the form of a loan – rarely written off – <a href="https://www.rnz.co.nz/news/in-depth/453297/kiwis-in-need-of-legal-aid-stung-by-interest-that-outstrips-mortgage-rates">bearing interest</a> and leading to caveats on any assets. </p>
<p>But it is more likely you won’t be granted legal aid at all, because only those with <a href="https://www.legislation.govt.nz/regulation/public/2011/0144/latest/DLM3743601.html?src=qs">severely constrained resources</a> qualify. </p>
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<p>And, as the Law Society survey shows, even if you do qualify there is a good chance you won’t be able to find a lawyer. The survey found over 60% of lawyers have no interest in doing legal aid work. Of those who are willing, many have to limit the numbers of cases they can take on. </p>
<p>This means legally aided clients are more likely to be turned away. The situation will probably worsen, too, because a quarter of those willing to do legal aid are planning to do less in the future. </p>
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<h2>Red tape and low pay</h2>
<p>Among the other problems identified by the surveyed lawyers is the level of bureaucracy they face. This can be traced back to a <a href="https://www.beehive.govt.nz/sites/default/files/Legal%20AidReview.pdf">review of legal aid</a> in 2009, which led to the current legislative framework under the Legal Services Act 2011. </p>
<p>The review placed a heavy reliance on anecdotal evidence of misbehaviour by some lawyers. It has always been true that legally aided spending has to be justified, but the current regime seems to be micro-managed.</p>
<p>The other significant problem is that legal aid <a href="https://www.rnz.co.nz/news/is-this-justice/453369/legal-aid-system-broken-and-may-collapse-chief-justice">pay rates are low</a> and haven’t changed for many years. It’s not just that lawyers can earn more – a lot more – if they avoid legal aid. It’s that legal aid rates sometimes barely cover their costs. </p>
<p>When legal academics ask law students why they want to be lawyers, the desire to help people in difficult situations is a common answer. This can be especially true for students from groups who face more disadvantage, including Māori, Pacific Island and refugee communities. </p>
<p>But those desires can only go so far if the work does not provide a living.</p>
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Read more:
<a href="https://theconversation.com/criminal-lawyers-are-regularly-exposed-to-trauma-how-can-nzs-justice-system-look-after-them-better-167625">Criminal lawyers are regularly exposed to trauma — how can NZ's justice system look after them better?</a>
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<h2>Eroding the right to justice</h2>
<p>Of course, it is easy to be cynical about lawyers asking for funding for lawyers. This comes back to the image problem. Contrast it with medical professionals calling for a better-funded health service, including better pay for doctors and nurses. The public is generally sympathetic.</p>
<p>But just as access to health is a good thing, so is access to justice. They are both prerequisites for a decent society.</p>
<p>If we go back to the origins of legal aid, it involved a recognition that relying on charity was not an appropriate response when the stakes are high. There was an acceptance fair trials are a keystone of the justice system, and legal aid can contribute to equal access to justice for all. </p>
<p>This right to justice is recognised in the <a href="https://www.legislation.govt.nz/act/public/1990/0109/latest/DLM224792.html">New Zealand Bill of Rights Act 1990</a>. But it is being hollowed out as time goes by, as fewer people can obtain legal aid and fewer lawyers are willing to do such work. </p>
<p>The Law Society survey suggests urgent action is required to avoid a justice gap that should be unacceptable in modern New Zealand.</p><img src="https://counter.theconversation.com/content/171663/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Kris Gledhill is affiliated with the Criminal Bar Association, which represents both defence and prosecution lawyers, and regularly works with lawyers, including those who undertake legally aided work; he used to be a barrister in England and Wales, where the majority of his work was paid under legal aid. </span></em></p>As the Law Society recently reported, legal aid in New Zealand is ‘on life support’. Urgent action is required to avoid the justice gap becoming a chasm.Kris Gledhill, Professor of Law, Auckland University of TechnologyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1447862020-09-15T18:28:06Z2020-09-15T18:28:06ZWhy are police still charging youth with simple drug possession? The case for decriminalization<figure><img src="https://images.theconversation.com/files/357928/original/file-20200914-20-1rjgwwv.jpg?ixlib=rb-1.1.0&rect=233%2C0%2C6071%2C3989&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Decriminalization of simple drug possession would treat drug use as a health issue, not a criminal justice issue.</span> <span class="attribution"><span class="source">(Shutterstock)</span></span></figcaption></figure><p>The stories are similar: before they were searched by police, young people swallowed whatever substance they had on them for personal use, to avoid “catching” additional charges. Each of us has heard them repeatedly while working with youth.</p>
<p>This impulsive ingestion has <a href="https://www.cihi.ca/en/health-professionals-express-concerns-over-rates-of-youth-hospitalizations-due-to-substance-use">significant ramifications for youth, families and communities</a>. It is particularly dangerous for youth, who may not have built up enough tolerance for the substance, or are unaware of what they have actually purchased. These youth often have already taken another drug before they encounter police, and mixing more than one substance, or taking more of the same substance, is known to <a href="http://www.drugcocktails.ca">lead to worse outcomes in youth</a>. </p>
<figure class="align-center ">
<img alt="A pair of handcuffs lies on top of a fingerprint card." src="https://images.theconversation.com/files/357651/original/file-20200911-22-1of1hqg.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/357651/original/file-20200911-22-1of1hqg.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/357651/original/file-20200911-22-1of1hqg.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/357651/original/file-20200911-22-1of1hqg.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/357651/original/file-20200911-22-1of1hqg.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/357651/original/file-20200911-22-1of1hqg.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/357651/original/file-20200911-22-1of1hqg.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Over the past two years, simple possession cases involving young people in Nova Scotia have been referred to restorative justice programs.</span>
<span class="attribution"><span class="source">(Unsplash/Bill Oxford)</span></span>
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</figure>
<p>This leads us to ask: why are police still charging people for possession of substances for personal use under the <a href="https://laws-lois.justice.gc.ca/eng/acts/c-38.8/fulltext.html">Controlled Drugs and Substances Act (CDSA)</a>? In Canada in 2018, <a href="https://www150.statcan.gc.ca/n1/pub/85-002-x/2019001/article/00013/tbl/tbl15-eng.htm">more than 6,300 youth were arrested</a> or had interactions with police for drug possession.</p>
<h2>Toxic candy</h2>
<p>Alprazolam (Xanax) is a type of benzodiazepine medication often used to treat anxiety and panic disorders, but is also <a href="https://theconversation.com/xanax-how-does-it-work-and-what-are-the-side-effects-94594">used recreationally by young people</a>. When ingested in a toxic amount — which varies by age and weight — it can lead to coma, <a href="https://dx.doi.org/10.1097%2FADM.0000000000000350">slow and ineffective breathing and even death</a>. </p>
<p>As manufacturing of illicit substances evolves, so does the appearance, content and strength of those substances. Alprazolam pills pressed to look like <a href="https://thestarphoenix.com/news/local-news/police-seize-xanax-resembling-sweetarts-candy">SweeTARTS</a> and other candies have been found in Canadian communities. A “sweet tart” or “xanie tart” varies in its potency and may <a href="https://doi.org/10.1001/jamainternmed.2016.4306">contain other substances including fentanyl and heroin</a>. If impulsively ingested by a youth who is not accustomed to the drug, the results could be life-altering. </p>
<h2>A health issue, not a criminal justice issue</h2>
<p>Since its inception, the <a href="https://www.nslegalaid.ca/legal-information/youth-law/">Nova Scotia Legal Aid youth office</a> has assisted youth with simple possession charges, contrary to <a href="https://laws-lois.justice.gc.ca/eng/acts/c-38.8/page-2.html#docCont">s.4(1) of the Controlled Drugs and Substances Act</a>. However, in the past two years, no youth legal aid lawyer has had this charge go beyond the preliminary stages of court proceedings. Federal Crown attorneys have exercised their discretion to withdraw or refer simple possession charges to <a href="https://novascotia.ca/just/rj/">restorative justice programs</a>. As criminal charges can be dismissed if a youth completes restorative justice, they avoid the stigmatization that may come with a youth court record. </p>
<p><a href="https://www.ppsc-sppc.gc.ca/eng/pub/fpsd-sfpg/fps-sfp/tpd/p5/ch13.html">Updates to the Public Prosecution Services of Canada (PPSC) deskbook</a> appear to reflect a crystallization of this conventional practice and recognize that simply possessing and using substances ought to be dealt with through the health system, and not the criminal justice system. Unfortunately, as long as police can arrest a youth and lay the charge of simple possession, the health risks we’ve each seen in social work, the emergency room and legal aid will remain unchanged.</p>
<p>The risk of being handcuffed by a police officer, being charged or the thought of being obliged to appear in a courtroom can be extremely consequential to a child. Most young people have very little insight into the workings of the justice system. It is likely they will assume that being found with a substance like Xanax will land them in a locked facility. </p>
<p>They may already be under the influence of a substance when they realize they are at risk of a police officer finding it in their possession. This clouds their judgement in an already stressful situation and further increases the risk that they will consume an unsafe amount of a substance to get rid of it, potentially leading to serious harm or death.</p>
<figure class="align-center ">
<img alt="A police officer wearing a neon yellow jacket that reads 'POLICE.'" src="https://images.theconversation.com/files/357652/original/file-20200911-16-1fmlev7.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/357652/original/file-20200911-16-1fmlev7.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=311&fit=crop&dpr=1 600w, https://images.theconversation.com/files/357652/original/file-20200911-16-1fmlev7.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=311&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/357652/original/file-20200911-16-1fmlev7.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=311&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/357652/original/file-20200911-16-1fmlev7.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=390&fit=crop&dpr=1 754w, https://images.theconversation.com/files/357652/original/file-20200911-16-1fmlev7.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=390&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/357652/original/file-20200911-16-1fmlev7.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=390&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<span class="caption">Young people may already be under the influence of a substance when they encounter police, clouding their judgement and increasing the likelihood of swallowing unsafe amounts of a substance to prevent police from finding it.</span>
<span class="attribution"><span class="source">(Pixabay)</span></span>
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<p>A <a href="https://www.ccsa.ca/sites/default/files/2019-04/CCSA-Decriminalization-Controlled-Substances-Policy-Brief-2018-en.pdf">2018 policy brief on decriminalization</a> by the Canadian Centre on Substance Abuse and Addiction examines how other countries approach possession and connection back to supportive health programs. The <a href="https://globalnews.ca/news/7161215/drug-decriminalization-canada-future/">Canadian Association of Chiefs of Police supports the decriminalization of personal, illicit drug possession</a>, and the <a href="https://www.theglobeandmail.com/canada/article-canada-takes-step-to-decriminalize-of-drug-possession-amid-opioid/">Public Prosecution Service of Canada is taking steps</a> to decrease the likelihood of conviction for personal, illicit drug possession. </p>
<p>Until further decriminalization efforts can be made, what can be done now? </p>
<h2>A safer alternative</h2>
<p>Consider the impact of police officers offering people the chance to turn over any illicit substances without consequence, regardless of previous charges or any existing legal conditions requiring them to refrain from substances. </p>
<p>This practice may avoid accidental overdoses and reduce the risk of medical complications while youth are in the custody of police, sheriffs or correctional officers, most of whom do not have the training, tools or time needed to treat a person experiencing an overdose. It may also decrease the <a href="https://sph.unc.edu/sph-news/former-inmates-at-high-risk-for-opioid-overdose-following-prison-release/">risk of accidental overdose</a> when released from custody, should they be remanded into forced sobriety. </p>
<p>This change in practice could <a href="https://www.toronto.ca/wp-content/uploads/2018/05/9105-A-Public-Health-Approach-to-Drugs-Discussion-Paper.pdf">help address the stigma around substance use</a>, which is a barrier to seeking help. Analyzing substances handed over could provide life-saving information and increase the likelihood of apprehending those who manufacture and traffic these substances. </p>
<p>Given the <a href="https://ama.com.au/ausmed/treat-addiction-health-issue-not-crime-%E2%80%93-experts">recognition that substance misuse is a health and social issue, not a criminal issue</a>, we hope that police officers will use their <a href="https://www.cbc.ca/news/canada/nova-scotia/nova-scotia-police-chief-decriminalizing-drugs-1.5648297">discretion</a> and offer a safer choice for youth. </p>
<p>Like the <a href="https://www.canada.ca/en/health-canada/news/2017/05/good_samaritan_drugoverdoseactbecomeslawincanada.html">Good Samaritan law</a> that ensures people will not be criminalized for making sure another receives proper medical attention, such a practice would only be useful if those affected know about it. Letting people know they will not be charged for their personal substances will take time, communication and acceptance of the <a href="https://www.ccsa.ca/sites/default/files/2019-04/CCSA-Addiction-Care-in-Canada-Treatment-Guide-2017-en.pdf">best practice research on substance use disorders</a>.</p>
<p><em>This article was co-authored by Paul Sheppard, a youth lawyer with Nova Scotia Legal Aid in Halifax.</em></p><img src="https://counter.theconversation.com/content/144786/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>The authors do not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and have disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Young people often swallow any drugs they have on them when they encounter police, risking overdose to avoid a drug possession charge.Kristyn Anderson, PhD (Health) student, MSW, RSW, RMFT, Dalhousie UniversityKirstin Weerdenburg, Pediatric Emergency Physician, Faculty of Medicine, Dalhousie UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1209052019-07-29T11:52:19Z2019-07-29T11:52:19ZLegal aid at 70: how decades of cuts have diminished the right to legal equality<figure><img src="https://images.theconversation.com/files/286025/original/file-20190729-43122-1evue9v.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Access to justice has been diminished by swinging budget cuts in England and Wales</span> <span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/closeup-lawyers-hand-protecting-justice-scale-571649245?src=dSLcGhWwAgqL15lm0uWcow-1-8&studio=1">Andrey_Popov/Shutterstock</a></span></figcaption></figure><p>Happy birthday <a href="https://www.fabians.org.uk/wp-content/uploads/2017/09/Bach-Commission-Appendix-6-F-1.pdf">legal aid</a>! For 70 years, the people of England and Wales have <a href="https://api.parliament.uk/historic-hansard/acts/legal-aid-and-advice-act-1949">enjoyed the right</a> to be provided legal assistance at public expense if they cannot afford a lawyer.</p>
<p>Despite the importance of legal aid as a means to achieve social justice, the scheme is now a shadow of what it was once intended to be. Degraded by successive governments, legal aid is increasingly criticised for funding the defence of those seen as not “deserving” it. It is often <a href="https://www.lawgazette.co.uk/news/shamima-begum-case-pushes-legal-aid-into-national-spotlight/5070002.article">framed negatively</a> in the press, with outrage that “taxpayers’ money” is supposedly being <a href="https://www.itv.com/goodmorningbritain/news/fugitive-speedboat-killer-used-100000-in-legal-aid-to-fund-appeal-for-manslaughter-conviction">“given” to convicted criminals</a> instead of <a href="https://www.dailymail.co.uk/news/article-6921827/Shamima-Begum-legal-aid-despite-stripped-UK-citizenship.html">victims and their families</a> – a false dichotomy that seeks to diminish the rights of many of those who qualify for legal aid.</p>
<p>The very principle of legal aid is to ensure that everyone has equal access to advice and representation in order to uphold their rights. But antagonistic attitudes have fuelled negative public perception of the scheme, allowing large cuts to take place. This has been <a href="https://www.theguardian.com/politics/2013/jan/09/skivers-v-strivers-argument-pollutes">heightened under austerity</a>, allowing protections for society’s most vulnerable to be savaged in the name of claimed economic necessity. </p>
<p>The legal aid system now is under-resourced, with great pressure on those who provide advice and representation, and too often <a href="https://www.waterstones.com/book/the-secret-barrister/the-secret-barrister/9781509841141">lets down those people most in need</a>.</p>
<h2>Justice politicised</h2>
<p>Legal aid <a href="https://api.parliament.uk/historic-hansard/commons/1948/dec/15/legal-aid-and-advice-bill">was introduced</a> “for those of slender means and resources, so that no one would be financially unable to prosecute a just and reasonable claim or defend a legal right”. Sitting alongside the welfare state, the idea was that people needed recourse to a properly funded system of legal advice to enforce their welfare rights through the courts if necessary. In the decades after its launch, the reach of legal aid was expanded to include other areas of civil law, before criminal cases were included from the 1960s.</p>
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<p>The cost of legal aid became highly politicised after the increasing budget – which quadrupled between <a href="https://www.fabians.org.uk/wp-content/uploads/2017/09/Bach-Commission-Appendix-6-F-1.pdf">1985 and 1995 to £1.4 billion</a> – became a bone of contention for governments keen on reducing expenditure. The Conservatives decreased eligibility for civil legal aid from 1987 onwards, making it available to only those on the lowest incomes (<a href="https://www.fabians.org.uk/wp-content/uploads/2017/09/Bach-Commission-Appendix-6-F-1.pdf">to less than half of the UK’s population</a>, when it was once available to more than three quarters of people. At the same time, new rules meant almost 10% of those who used legal aid had to pay towards it.</p>
<p>When Tony Blair became prime minister in 1997 under a Labour government, he maintained the focus on curbing legal aid, as war was raged against <a href="https://www.thetimes.co.uk/article/blair-was-wrong-to-brand-lawyers-fat-cats-says-ally-kns7zjmql">demonised “fat cat” legal aid lawyers</a>. The budget continued to rise, however, reaching over £2 billion during Blair’s time in office. This was in large part due to massive amounts of <a href="https://www.theguardian.com/commentisfree/2017/aug/31/tough-on-crime-prisons-crisis-prisoner-numbers">new legislation and criminal offences</a>. Crown Prosecution Service costs went up massively too, as Blair sought to tackle persistent offending and antisocial behaviour – without acknowledging how that added to the legal aid bill. </p>
<p>From 2012, the coalition government dramatically cut £751m from the £2.2 billion legal aid fund through the <a href="https://www.legislation.gov.uk/ukpga/2012/10/contents/enacted">Legal Aid Sentencing and Punishment of Offenders Act</a> (LAPSO). This was primarily achieved through reducing lawyers fees, and removing large parts of public funding for social welfare law – despite this area being one which people on low incomes, who are typically disadvantaged, are prone to experience difficulties with.</p>
<p>In the year before the reforms, 91,000 people received legal advice for welfare benefits cases. After LASPO, legal advice fell by 99% to just 478 people. And this at a time when problems with <a href="https://www.theguardian.com/society/2019/apr/04/study-found-universal-credit-causing-hardship-a-year-and-half-ago">new benefits such as Universal Credit</a> and the “<a href="https://www.theguardian.com/careers/2017/may/22/cruel-and-humiliating-why-fit-for-work-tests-are-failing-people-with-disabilities">cruel and humiliating</a>” fit-to-work tests meant people were likely to need advice more than ever. </p>
<h2>Justice constrained</h2>
<p>Austerity doubly hits the poorest communities. It restricts access to services and benefits, while making it harder to challenge the decisions of the state. As legal aid has been diminshed, access to justice has become more difficult in other ways too. <a href="https://www.theguardian.com/law/2019/jan/27/half-of-magistrates-courts-in-england-and-wales-closed-since-tories-elected">Courts have been closed</a> and <a href="https://www.theguardian.com/law/2018/may/02/6500-jobs-to-be-lost-in-modernisation-of-uk-courts">frontline staff replaced</a> with online services. Yet, following <a href="https://www.gov.uk/government/publications/post-implementation-review-of-part-1-of-laspo">a recent review of LASPO</a>, the government promised just £8m – mostly to promote IT – to fix the failings of the justice system. But vulnerable people need face-to-face advice, they need to be able to develop trusting relationships with the lawyers they go to for help, and feel they are being understood.</p>
<p>Seventy years since it was first established, urgent action is now needed to get legal aid back to the original principles of equity and equality. These ideals must be enshrined in policy and practice, not only for the benefit of this generation but for all of the future generations to come.</p>
<p>Eligibility criteria should be liberalised to avoid the current situation where <a href="https://www.lawsociety.org.uk/news/press-releases/struggling-families-disqualified-from-justice/">families living below the poverty line</a> might not qualify for legal assistance for issues such as fighting eviction. Legal aid fee rates should be increased to address <a href="https://www.theguardian.com/law/2018/apr/17/criminal-defence-solicitors-may-be-extinct-in-five-years-says-law-society">the crisis of recruitment and retention</a> that is facing this part of the legal profession too. While the scope of civil legal aid must cover more areas, reversing damaging cuts to areas such as family and immigration law. Legal help should be available earlier too, to stop problems escalating. In housing law, for example, legal aid is not available for disrepair issues until an issue has become serious enough to impact the health of the resident. </p>
<p>The Fabian Society <a href="https://fabians.org.uk/publication/the-right-to-justice/">has recommended</a> a new right to receive reasonable legal assistance without burdensome costs to tackle some of these problems. This would be accompanied by a set of guiding principles that would include promoting public legal education and ensuring that citizens can enforce the right. We also believe that <a href="https://www.gov.uk/government/organisations/legal-aid-agency">the Legal Aid Agency</a> – which manages the scheme as an executive agency of the Ministry of Justice – should be replaced by an independent body at arm’s length from government. Greater autonomy would mean it would be better placed to resist political pressures.</p>
<p>Legal aid is a public good and essential for a properly functioning democratic society. This anniversary should be an opportunity to not only celebrate a principle that has the potential to ensure equality before the law, but also cause us to take stock and get angry at how these rights have continued to be stripped away.</p><img src="https://counter.theconversation.com/content/120905/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>The authors do not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and have disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Seventy years after it was first launched, legal aid’s principles of equality are a shadow of what they once were.Daniel Newman, Senior Lecturer in Law, Cardiff UniversityFaith Gordon, Lecturer in Criminology, Monash UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1173412019-06-02T13:48:46Z2019-06-02T13:48:46ZA year of Doug Ford: Retreating on cuts or just taking a break?<p>It’s been a bad few weeks for Ontario Premier Doug Ford as he approaches the first anniversary of his election last June. First at the opening of the <a href="https://www.thestar.com/politics/provincial/2019/05/15/premier-doug-ford-booed-at-special-olympics-ceremony.html">Special Olympics</a>, and then at a <a href="https://www.cbc.ca/news/canada/toronto/ford-collision-conference-booed-1.5144117">high-profile tech conference</a> in Toronto, he was greeted with choruses of boos.</p>
<p>Toronto Mayor John Tory, with the strong support of his entire city council (with the sole exception of for the premier’s nephew, Coun. Michael Ford) had launched a public campaign specifically targeting the <a href="https://www.thestar.com/news/city_hall/2019/05/13/toronto-mayor-says-local-mpps-are-misleading-voters-over-massive-public-health-cuts.html">11 Conservative members of provincial parliament</a> from the City of Toronto over the Ontario government’s budget-cutting and restructuring initiatives. Mayors in the <a href="https://www.thestar.com/politics/provincial/2019/05/26/it-almost-looks-like-they-just-werent-ready-to-be-in-government.html">rural central Ontario Conservative heartland</a> were also beginning to question the government’s direction.</p>
<p>A year ago, Ford’s arrival as Ontario’s premier was seen as a harbinger of a <a href="https://www.theglobeandmail.com/opinion/article-how-ontario-became-ford-nation/">populist realignment</a> in Ontario and Canadian politics. Now polls suggest Ford <a href="https://www.mainstreetresearch.ca/ford-pc-support-collapses-while-liberal-voters-prefer-tory-as-their-leader/">has personal approval ratings</a> well below former Liberal premier Kathleen Wynne’s in the run-up to the 2018 election. </p>
<p>The leaderless Liberals, who lack party status in the legislature, as well as the NDP, are out-polling Ford’s Progressive Conservatives. Polls suggest the Liberal party, if led by Toronto Mayor John Tory, <a href="https://www.thestar.com/politics/provincial/2019/05/07/john-tory-could-be-strongest-leader-for-ontario-liberals-poll-suggests.html">would defeat</a> Ford by a wide margin. </p>
<h2>Change in direction?</h2>
<p>The Ford government’s recent <a href="https://www.thestar.com/politics/provincial/2019/05/27/premier-doug-ford-cancels-retroactive-cuts-that-have-hit-public-health-child-care-and-other-municipal-services.html">step back on retroactive budget cuts to municipalities</a> perhaps comes as no surprise in this context. The larger question is whether it constitutes a tactical retreat or a more serious change in direction by the populist premier. </p>
<p>Ford was elected on a remarkably <a href="https://www.ontariopc.ca/plan_for_the_people">thin platform</a>, principally promising cuts in taxes and hydro rates. These were to be paid for by finding “efficiencies” in government operations, as opposed to actually laying off teachers, nurses and other front-line staff, or by cutting services. </p>
<p>What emerged was a very different reality. The breadth of the budget cuts made by the Ford government have been so broad and so deep it is difficult to identify any specific targets or strategies: <a href="https://ipolitics.ca/2019/05/06/ontario-municipalities-unite-in-opposition-to-public-health-cuts/">public health</a>; <a href="https://www.cbc.ca/news/canada/ottawa/ontario-legal-aid-funding-cut-1.5095058">legal aid</a>; <a href="https://www.cbc.ca/news/canada/toronto/758-renewable-energy-cancelled-1.4746293">renewable energy</a>; <a href="https://www.cbc.ca/news/canada/ottawa/ford-government-cancels-energy-electricity-efficient-programs-centralizing-1.5069318">energy efficiency</a>; <a href="https://www.cbc.ca/news/canada/toronto/greenon-program-ends-1.4713161">climate change mitigation and adaptation</a>; <a href="https://www.thestar.com/politics/provincial/2019/04/11/social-programs-face-1-billion-spending-cut-in-ontario-budget.html">social assistance</a>; <a href="https://www.huffingtonpost.ca/2018/11/22/ontario-pcs-change-definition-of-disability-welfare-reforms_a_23597395/">Ontario Disability Support Program eligibility</a>; <a href="https://www.thestar.com/news/canada/2019/05/22/ford-government-slashes-funding-to-childrens-aid-societies.html">children’s aid</a>; <a href="https://www.thestar.com/news/city_hall/2019/05/02/doug-ford-government-child-care-cuts-will-hit-toronto-hard-city-manager-warns.html">day care</a>; <a href="https://www.nationalobserver.com/2018/12/13/news/ford-cuts-all-provincial-funding-ontario-college-midwives">midwives</a>; <a href="https://www.chatelaine.com/news/doug-ford-education-changes-ontario-cuts/">secondary</a> and <a href="https://www.thestar.com/politics/provincial/2019/01/16/ford-governments-tuition-cut-to-cost-universities-360-million-and-colleges-80-million.html">post-secondary education</a>; <a href="https://www.cbc.ca/news/canada/toronto/what-are-ontario-health-teams-doug-ford-government-1.5035750">health care</a>, particularly complex out-of-hospital care; <a href="https://www.cbc.ca/news/canada/toronto/doug-ford-stem-cell-ontario-institute-regenerative-medicine-1.5137512">medical research</a>; <a href="https://www.cbc.ca/news/canada/toronto/ontario-flooding-cuts-conservation-1.5105897">flood protection</a>; <a href="https://torontosun.com/news/provincial/pcs-cut-ontario-tourism-funding-eliminate-toronto-money">tourism promotion</a>; and <a href="https://www.cbc.ca/news/canada/toronto/what-ontario-s-budget-means-for-toronto-goodbye-gas-tax-revenue-hike-hello-circus-at-ontario-place-1.5090512">gasoline tax transfers</a> for municipalities have all been hit. </p>
<p><a href="https://www.cbc.ca/news/indigenous/ontario-children-youth-advocate-cut-1.4907807">The Children and Youth Advocate’s</a> office and the office of the <a href="https://www.cbc.ca/news/canada/toronto/ontario-offices-merging-1.5058471">Environmental Commissioner of Ontario</a> have been eliminated as independent entities. Think tanks like the <a href="https://mowatcentre.ca/">Mowat Centre</a> and the <a href="https://www.competeprosper.ca/about/-the-institute">Institute for Competitiveness and Prosperity</a> — aimed at mapping out the province’s future — have been terminated. </p>
<p>Although “open for business” is one of the government’s favourite slogans, the most recent cuts flowing from Ford’s first budget have hit sectors seen as essential to the province’s economic future, particularly information technology. There have been major reductions in provincial contributions to the <a href="https://www.cbc.ca/news/technology/ontario-cuts-ai-funding-1.5143533">Vector Institute for Artificial Intelligence and the Canadian Institute for Advanced Research</a>, along <a href="https://www.theglobeandmail.com/business/article-ontario-cuts-funding-to-startup-innovation-programs/">with cuts</a> to the innovation-focused Centres of Excellence, and training, mentoring and start-up support for small businesses. </p>
<p>The outcome of the Ford government’s first year has been described by some as a <a href="https://www.theglobeandmail.com/opinion/article-why-does-doug-ford-hate-the-future-hes-sure-trying-to-burn-it-down/">war on the future</a>, as well as <a href="https://www.globalresearch.ca/doug-fords-war-on-ontarios-poor/5661524">a war on the province’s most vulnerable residents</a>.</p>
<p>The government justified its actions on the basis of an unexpectedly large budget deficit left by the Liberals. Yet the government has itself shredded major revenue sources, most notably, up to <a href="https://www.ontario.ca/page/cap-and-trade-ontario">$2 billion a year from the cancelled greenhouse gas emission cap-and-trade system</a>. It also curtailed planned <a href="https://www.cbc.ca/news/canada/toronto/ontario-budget-2018-doug-ford-kathleen-wynne-1.4597965">tax increases</a> for high-income earners.</p>
<h2>Fight over beer in corner stores</h2>
<p>The government has moved to clarify the true costs of the Liberal <a href="https://news.ontario.ca/opo/en/2017/03/ontario-cutting-electricity-bills-by-25-per-cent.html">Fair Hydro Plan’s</a> 25 per cent reduction of hydro rates, and to modify the financing arrangements for the plan. But the core of the plan, and its costs to the provincial treasury of as much as <a href="https://fao-on.org/en/Blog/Publications/Fair_hydro">$3 billion a year</a>, remain intact. At the same time, the government seems prepared to risk <a href="https://www.cbc.ca/news/canada/toronto/doug-ford-beer-corner-convenience-store-ontario-1.5101868">hundreds of millions</a> of dollars in contract penalties and lawsuits to get beer and wine into corner stores. </p>
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<img alt="" src="https://images.theconversation.com/files/277275/original/file-20190530-69087-4m9kx4.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/277275/original/file-20190530-69087-4m9kx4.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/277275/original/file-20190530-69087-4m9kx4.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/277275/original/file-20190530-69087-4m9kx4.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/277275/original/file-20190530-69087-4m9kx4.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/277275/original/file-20190530-69087-4m9kx4.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/277275/original/file-20190530-69087-4m9kx4.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<span class="caption">Ford arrives for his buck-a-beer plan announcement in Picton, Ont., in August 2018. His government has tabled legislation that would terminate a contract with The Beer Store.</span>
<span class="attribution"><span class="source">THE CANADIAN PRESS/Lars Hagberg</span></span>
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<p>If that wasn’t enough, the government has embarked on a series of conflicts with other levels of government. It’s in a high-profile <a href="https://www.macleans.ca/politics/ottawa/ford-and-trudeau-take-carbon-tax-fight-to-court/">legal and political dispute</a> with the federal government over carbon pricing. At the same time, it’s waged a series of battles with the province’s municipalities.</p>
<p>The City of Toronto has borne the brunt of these attacks, including <a href="https://www.ola.org/en/legislative-business/bills/parliament-42/session-1/bill-5">a decision to cut</a> the size of the city’s council by half in the midst of last fall’s municipal election campaign, and <a href="https://www.thestar.com/news/gta/2018/12/11/council-powerless-to-stop-provincial-takeover-of-ttc-subway-system-confidential-city-report-says.html">a takeover of the TTC subway system</a>. The cuts to public health funding, reductions in expected gasoline tax transfers, changes to the land-use <a href="https://globalnews.ca/news/5312143/ontario-mayors-concerned-cuts-bill-108/">planning rules</a> in favour of developers and unilateral changes in governance structures affected municipalities across the province as well. </p>
<p>A year in, the Ford government has demonstrated a remarkable talent for disruption and destruction. But it has very little to show in terms of constructive progress. The government talked about “protecting the things that matter most” but its cutting-across-the-board behaviour suggests that it didn’t have any sense of what those things might actually be. </p>
<p>The year has produced strikingly few winners under the Ford regime: developers; the nuclear industry; large industrial polluters presented with ever-more “<a href="https://www.cela.ca/sites/cela.ca/files/1238-CELA-Response-Ontario-Environmental-Plan.pdf">flexible</a>” rules; resource extraction companies that will be permitted to “<a href="https://www.thestar.com/politics/provincial/2019/04/18/critics-slam-proposed-changes-to-endangered-species-act.html">pay to slay</a>” species at risk; and most recently, hunters — beneficiaries of a Ministry of Natural Resources and Forestry program that gives <a href="https://www.cbc.ca/news/canada/toronto/hats-hides-deer-moose-ontario-1.5138369">ball caps</a> for animal hides at a cost of $100,000 — the same amount, it has been pointed out, as the province cut from stem cell research.</p>
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Read more:
<a href="https://theconversation.com/doug-fords-ontario-whos-winning-and-what-it-means-for-the-provinces-future-112127">Doug Ford’s Ontario: Who's winning, and what it means for the province’s future</a>
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<p>Where the Ford government goes from here is an open question. The short-term pull-back on cuts to transfers to municipalities is a relatively minor adjustment to the government’s long-term plans laid out in its budget. The government’s core restructuring and budget strategies remain in place. </p>
<p>Ontario residents are only beginning to feel the impacts of those measures, but their patience with the premier’s populist appeal has already worn thin. A deeper change in direction than Ford’s recent temporary budgetary reprieve will be needed to rescue the government’s political fortunes.</p><img src="https://counter.theconversation.com/content/117341/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Mark Winfield receives funding from the Social Sciences and Humanities Research Council, Natural Sciences and Engineering Research Council and the George Cedric Metcalf Foundation. </span></em></p>A year ago, Doug Ford’s election was seen as a harbinger of a populist realignment in Ontario and Canadian politics. Now polls suggest Ford has abysmally low personal approval ratings.Mark Winfield, Professor of Environmental Studies, York University, CanadaLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1161312019-04-28T16:32:38Z2019-04-28T16:32:38ZThe Doug Ford doctrine: Short-term gain for long-term pain<figure><img src="https://images.theconversation.com/files/271238/original/file-20190427-194623-1mbtsze.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Ontario Premier Doug Ford laughs as Finance Minister Vic Fedeli presents the 2019 budget at the legislature in Toronto in April 2019. </span> <span class="attribution"><span class="source">THE CANADIAN PRESS/Frank Gunn</span></span></figcaption></figure><p>Although less than a year in office, Ontario Premier Doug Ford’s government has already demonstrated a remarkable talent for pursuing short-term gains at the expense of serious long-term costs and risks.</p>
<p>The pattern was set early. The Ford government’s first action was <a href="https://www.cbc.ca/news/canada/toronto/doug-ford-ending-cap-and-trade-1.4731954">to terminate</a> the province’s cap-and-trade carbon pricing system. That move the cost the province billions in revenue needed to prepare the province for the already evident impacts of climate change, and to reduce the province’s emissions and prevent even more serious damage.</p>
<p>In exchange, consumers got a reduction of a few cents per litre on gasoline prices — far less than gas prices fluctuate over a typical weekend.</p>
<p>These kinds of moves are coming to be a defining feature of the Ford government. In a world where economies are increasingly defined in terms of knowledge and information services, <a href="https://www.thestar.com/politics/provincial/2019/03/15/ford-government-announces-hikes-to-high-school-class-sizes-but-no-changes-to-kindergarten.html">cuts to secondary</a> and <a href="https://www.thestar.com/politics/provincial/2019/01/16/ford-governments-tuition-cut-to-cost-universities-360-million-and-colleges-80-million.html">post-secondary</a> education run significant risks undermining the province’s long-term economic prospects. </p>
<p>The major cuts in funding to <a href="https://www.cbc.ca/news/canada/ottawa/ontario-legal-aid-funding-cut-1.5095058">legal aid</a> announced in the province’s recent budget will also exacerbate backlogs in the courts as more people, particularly those with low incomes, will find themselves without representation. </p>
<p>Cuts in funding to conservation authorities for <a href="https://www.cbc.ca/news/canada/toronto/ontario-flooding-cuts-conservation-1.5105897">flood protection</a> seem to contradict the words of the government’s own November 2018 “made in Ontario” <a href="https://www.ontario.ca/page/made-in-ontario-environment-plan">environment plan</a>, which acknowledged of the impacts of climate change, including increased risks of flooding.</p>
<h2>Long-term benefits</h2>
<p>Yet even in this context, two recent decisions stand out as particularly significant examples of this pattern, the first related to energy conservation, and the second to the delivery of front-line public health programming. Both these areas are characterized by very high ratios of long-term benefits to immediate costs, and therefore should appeal to a government focused on value for money and “respect or taxpayers.”</p>
<p><a href="https://eco.auditor.on.ca/our-reports/energy/">Energy conservation</a> — in the form of such things as replacing older inefficient, lighting, appliances, heating and air conditioning systems with newer models that provide the same services while using far less energy — is widely acknowledged as the cheapest and most efficient way of meeting energy needs and reducing consumers’ bills. </p>
<p>Conservation measures can also play a major role in managing peaks in electricity demand and stabilizing the grid. The Ford government seemed to acknowledge much of this in its <a href="https://www.ontario.ca/page/made-in-ontario-environment-plan">environment plan</a>, which highlighted the benefits of energy conservation.</p>
<p>Ontario’s 2014 <a href="https://cms.powerauthority.on.ca/opa-conservation/conservation-first-framework-2015-2020">Conservation First Framework</a> had established a province-wide structure for conservation efforts. It established funding and inventive mechanisms, conservation targets at the provincial level and for Hydro One and local electricity utilities, and programming targeted at sectors ranging from low-income households to large industry. The framework was widely regarded as <a href="https://eco.auditor.on.ca/our-reports/energy/">highly effective</a>.</p>
<p>Virtually all of this was eliminated by the Ford government in March, <a href="https://www.theglobeandmail.com/business/article-ontario-pulls-the-plug-on-electricity-conservation-programs/">when the province terminated</a> its entire framework for electricity conservation. </p>
<p>Energy conservation measures, particularly for buildings, that had also been central components of the provincial climate change strategy <a href="https://www.thestar.com/business/real_estate/2018/06/20/green-ontario-cancellation-leaves-homeowners-industry-scrambling.html">ended with the elimination of the cap-and-trade system</a> as soon as Ford took office.</p>
<p>All that remains of the province’s once comprehensive strategy are some programs for industry and the low-income sector. Utility-provided programming related to natural gas remains intact for now, although there is no certainty regarding its long-term role. The short-term gain from all of this will amount to less than $10 per person per year.</p>
<h2>Electricity shortage looming</h2>
<p>While province has a <a href="http://www.ieso.ca/Power-Data/Supply-Overview/Transmission-Connected-Generation">surplus of electricity</a> for now, that situation is going to change significantly over the next few years with the looming and <a href="https://www.alternativesjournal.ca/community/blogs/renewable-energy/opinion-playing-politics-pickering-nuclear-no-one%E2%80%99s-best-interest">dangerously overdue</a> retirement of the Pickering nuclear plant, and with reactors at the Darlington and Bruce facilities coming off-line for refurbishment. </p>
<p>Conservation would be the least costly and lowest impact option to fill these gaps, yet the province has just eliminated much of the foundation of experience and capacity needed to respond to these emerging needs. Electricity costs can only rise as a result.</p>
<h2>Short-changing public health</h2>
<p>While there was a brief reference to moving energy conservation off electricity rates in the <a href="https://www.ontariopc.ca/plan_for_the_people">2018 Progressive Conservative platform</a>, there was no mention of cutting funding to local public health programming. That changed dramatically with the Ford government’s first budget. </p>
<p>The budget included a <a href="https://www.cbc.ca/news/canada/toronto/association-public-health-agencies-ontario-cut-spending-units-1.5099787">$200 million cut</a> in funding for programs delivered by local public health units as part of a proposed restructuring and consolidation of the units. </p>
<p>In the case of the city of Toronto, this will amount to a withdrawal of <a href="https://www.theglobeandmail.com/opinion/article-doug-fords-public-health-cuts-will-come-back-to-haunt-us/">50 per cent</a> of provincial funding. These cuts will go directly to front-line public health services — vaccination programs, the management of infectious diseases, health inspections of restaurants and food vendors and drinking water safety. </p>
<p>Local <a href="https://toronto.citynews.ca/2019/04/18/1b-cut-to-toronto-public-health-called-cruel-and-short-sighted/">medical officers of health</a> have pointed out that these cuts are likely to “have significant negative impacts on the health of residents.” The chair of the Toronto Board of Health has been more direct, stating that <a href="https://torontosun.com/news/local-news/people-will-die-toronto-public-health-will-lose-1-billion-over-decade-due-to-pc-cuts-cressy-says">“people will die”</a> as a result of the cuts.</p>
<h2>Remembering Walkerton</h2>
<p>Less direct cuts to public health services and oversight were implicated as <a href="http://www.archives.gov.on.ca/en/e_records/walkerton/report1/index.html">contributing factors</a> to the May 2000 Walkerton drinking water contamination tragedy, in which seven died and nearly 3,000 were made seriously ill. The Ford government’s moves are more direct, affecting front-line delivery of public health services. </p>
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<img alt="" src="https://images.theconversation.com/files/271239/original/file-20190427-194612-nmb7v1.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/271239/original/file-20190427-194612-nmb7v1.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=493&fit=crop&dpr=1 600w, https://images.theconversation.com/files/271239/original/file-20190427-194612-nmb7v1.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=493&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/271239/original/file-20190427-194612-nmb7v1.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=493&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/271239/original/file-20190427-194612-nmb7v1.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=620&fit=crop&dpr=1 754w, https://images.theconversation.com/files/271239/original/file-20190427-194612-nmb7v1.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=620&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/271239/original/file-20190427-194612-nmb7v1.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=620&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<span class="caption">A five-year-old girl lies with her teddy bear as she is taken to an evacuation helicopter in Walkerton, Ont., in May 2000. Public health cuts played a role in the tainted water scandal in the small farming town.</span>
<span class="attribution"><span class="source">(CP PHOTO/Kevin Frayer)</span></span>
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<p>It’s difficult to imagine a more short-sighted choice in a time marked by re-emergence of serious infectious diseases, <a href="https://www.theglobeandmail.com/life/health-and-fitness/article-what-is-measles-and-why-is-it-making-a-comeback-a-guide/">like measles</a>, that were thought to be virtually eradicated in Canada.</p>
<p>Both energy conservation and public health services suffer from the relative invisibility of their benefits — they are about avoiding costs and preventing bad outcomes. This may partially explain why they were targeted by the Ford government. At the same time, both sets of decisions seem to demonstrate a remarkable incapacity to think or recognize benefits beyond the shortest of terms.</p>
<p>The government’s moves are consistent with an apparent emerging Ford doctrine of short-term gain for long-term pain. That doctrine carries with it major risks of embedding long-term structural costs for the province and its taxpayers, while undermining their ability to deal with the economic, social, environmental and health consequences.</p><img src="https://counter.theconversation.com/content/116131/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Mark Winfield receives funding from the Social Science and Humanities Research Council, Natural Sciences and Engineering Research Council and the George Cedric Metcalf Foundation. </span></em></p>There’s an apparent emerging Doug Ford doctrine in Ontario of short-term gain for long-term pain. It threatens to embed long-term structural costs for the province and its taxpayers.Mark Winfield, Professor of Environmental Studies, York University, CanadaLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1156152019-04-16T22:46:04Z2019-04-16T22:46:04ZOntario’s cuts to legal aid for refugees: Racist, xenophobic and possibly unconstitutional<figure><img src="https://images.theconversation.com/files/269678/original/file-20190416-147483-1nrlcp6.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">In a political dispute with Ottawa, Doug Ford's Ontario government has stopped funding legal aid for refugee claimants. This 2017 photo shows a young asylum seeker being held by an RCMP officer and her father after crossing the border into Canada from the United States. </span> <span class="attribution"><span class="source">THE CANADIAN PRESS/Paul Chiasson</span></span></figcaption></figure><p>The recent Ontario <a href="http://budget.ontario.ca/2019/index.html">budget included a 30 per cent cut to legal aid.</a> This will cause hardship for many low-income residents of Ontario, who are disproportionately drawn from racialized communities.</p>
<p>Refugees are among those who will suffer the most. <a href="https://globalnews.ca/news/5160635/ontario-budget-legal-aid-refugee-claimants/">The announced cuts include a prohibition</a> on using provincial money for legal aid for refugee claimants. <a href="https://www.thestar.com/news/gta/2019/04/15/legal-aid-stops-taking-new-immigration-refugee-cases.html">Legal Aid Ontario has responded</a> by immediately suspending all funding for lawyers to take on new immigration and refugee matters, other than preparing forms for refugee applications.</p>
<p>Previously, <a href="http://legalaid.on.ca/en/news/newsarchive/2019-04-15_refugee-services-clients.asp">Legal Aid Ontario spent about $34 million a year to support legal aid for refugee claimants</a>, with about $18 million coming from the province. The province says it should not be responsible for refugee law services, which is an area of federal jurisdiction.</p>
<p>The cuts are not really about jurisdiction, however. <a href="https://laws-lois.justice.gc.ca/eng/const/page-4.html">Criminal law is also an area of federal jurisdiction,</a> and it will continue to represent the biggest area of legal aid services in Ontario. Rather, the cuts are due to two reasons.</p>
<h2>A matter of politics</h2>
<p>The first is politics. The Ontario government <a href="https://www.theglobeandmail.com/canada/article-ontario-asks-federal-government-for-45-million-to-fund-legal-aid-for/">asserts that Ottawa is not doing enough to prevent a refugee crisis</a>. The Ford administration says Canada’s borders are out of control, with too many irregular border crossers transiting via the United States. They decry Justin Trudeau’s famous #WelcomeToCanada tweet from January 2017 as being responsible for an increase in numbers of refugees entering the country.</p>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"825438460265762816"}"></div></p>
<p>Meanwhile, the number of refugee claimants coming to Canada — while up in recent years — <a href="http://www.policyschool.ca/wp-content/uploads/2017/08/Social-Policy-Trends-Asylum-Claimants-August.pdf">is not far from longer term historical averages</a> and <a href="https://www.cbc.ca/news/canada/montreal/asylum-seeker-canada-border-crossing-data-1.4949765">the number of irregular border crossers (those crossing at non-official entry points) has declined</a> of late.</p>
<p>So there is no crisis. In fact, <a href="https://data.worldbank.org/indicator/sm.pop.refg">Canada does much less to support refugees than other countries with far fewer resources</a>. The federal government has also been <a href="https://www.amnesty.ca/news/amnesty-international-us-and-canada-directors-condemn-proposals-restrict-refugee-protection">criticized by human rights organizations for harsh border control measures</a> that violate the rights of refugees.</p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/269680/original/file-20190416-147514-rkaazu.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/269680/original/file-20190416-147514-rkaazu.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/269680/original/file-20190416-147514-rkaazu.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/269680/original/file-20190416-147514-rkaazu.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/269680/original/file-20190416-147514-rkaazu.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/269680/original/file-20190416-147514-rkaazu.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/269680/original/file-20190416-147514-rkaazu.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Doug Ford and Justin Trudeau have clashed over which government should cover the costs of refugees who are coming to Ontario via the United States.</span>
<span class="attribution"><span class="source">THE CANADIAN PRESS/Chris Young</span></span>
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</figure>
<p>Nonetheless, the Ford Conservatives’ story is that <a href="https://www.ontariopc.ca/plan_for_the_people">they will stand up “for the people</a>” of Ontario in the face of allegedly weak federal border control policies. They think this stance is a political winner, so they’re sticking with it, regardless of whether it’s true or not.</p>
<p>That brings us to the second reason for the cuts: racism and xenophobia.</p>
<h2>The growth of far-right ideology</h2>
<p>When the Ford Conservatives talk about being for “the people,” they mean some people, not others — and they certainly do not mean refugees. Ford is not the only one to make this distinction.</p>
<p>Beating up on refugees is a key part of the growth in far-right, anti-immigrant, racist ideology in the <a href="https://www.pbs.org/wgbh/frontline/article/how-the-far-right-has-reshaped-the-refugee-debate-in-europe/">European Union</a>, the <a href="https://www.hrw.org/world-report/2018/country-chapters/united-states">U.S.</a> and <a href="https://www.nytimes.com/2018/07/01/opinion/south-korea-racism.html">elsewhere</a>. It is distressing to see this taking root in Ontario.</p>
<p>There is one silver lining in this otherwise disappointing news. The announced cuts will lead advocates to pursue constitutional litigation to require legal aid for refugees.</p>
<h2>Legal aid is a right</h2>
<p>Currently, legal aid must be provided in many criminal proceedings as a matter of constitutional law. The result is that legal aid resources go largely to criminal law services, at the expense of legal services for low-income people facing eviction, intimate partner violence, workplace discrimination, deportation, being cut off social assistance and other important legal challenges.</p>
<p>Like criminal law, however, refugee determinations involve high stakes and <a href="https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/39/index.do">important rights</a>. If not properly recognized, refugee claimants may be deported to face persecution, torture or even death. Because of these stakes, claimants are constitutionally entitled to a refugee determination process that complies with the principles of fundamental justice.</p>
<p>At the same time, <a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1873999">research</a> has demonstrated that access to high quality lawyers is a key driver of positive outcomes in refugee determinations.</p>
<p>This combination means that if refugee claimants cannot afford counsel, they may be constitutionally entitled to legal aid. A Supreme Court of Canada case, <a href="https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/1725/index.do"><em>New Brunswick v G(J),</em></a> establishes that legal aid is constitutionally required in certain non-criminal legal proceedings where the rights at stake are very serious, where the proceedings are complex and where the litigant is not capable of self-representing — all factors that are present in many refugee hearings.</p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/269679/original/file-20190416-147487-71bnd5.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/269679/original/file-20190416-147487-71bnd5.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/269679/original/file-20190416-147487-71bnd5.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/269679/original/file-20190416-147487-71bnd5.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/269679/original/file-20190416-147487-71bnd5.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/269679/original/file-20190416-147487-71bnd5.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/269679/original/file-20190416-147487-71bnd5.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<span class="caption">Ontario Premier Doug Ford’s government uses the political slogan ‘For the People’ – but that doesn’t include people like refugees and others who will be impacted by cuts to the legal aid program in Ontario.</span>
<span class="attribution"><span class="source">THE CANADIAN PRESS/Christopher Katsarov</span></span>
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<p>It would be ironic if the Ford cuts lead to litigation that establishes not only a constitutional right to publicly funded counsel for refugees, but that also helps pave the way for constitutionally mandated legal aid for low-income and disproportionately racialized people with other important non-criminal law legal needs.</p>
<p>That really would benefit “the people” — by which we mean all people in Ontario, including refugees.</p><img src="https://counter.theconversation.com/content/115615/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Sharry Aiken is an Associate Professor at the Faculty of Law, Queen's University. She has been a recipient of research and conference funding from the Social Sciences and Humanities Research Council. She is a former president of the Canadian Council for Refugees, a member of the CCR's Legal Affairs Committee and past co-chair of the Board of Directors of the Canadian Centre for International Justice. She is also a member of the Canadian Association for the Study of Forced Migration. </span></em></p><p class="fine-print"><em><span>Sean Rehaag is an Associate Professor at Osgoode Hall Law School and is a Faculty Affiliate with York University's Centre for Refugee Studies. He has done paid consulting work with the United Nations High Commission for Refugees, and has served as an unpaid expert witness in constitutional litigation involving refugee issues and human rights. He is a member of refugee rights organizations such as the Canadian Association of Refugee Lawyers and the Refugee Lawyers Association, as well as several academic organizations such as Canadian Association of Refugee and Forced Migration Studies and the International Association for the Study of Forced Migration. He currently holds research funding from the Social Sciences and Humanities Research Council.</span></em></p>The recent decision by the Ontario government to drastically cut funds for legal aid will cause hardship for many low-income residents of Ontario and for refugees claimants.Sharry Aiken, Associate Professor of Law, Queen's University, OntarioSean Rehaag, Associate Professor, Osgoode Hall Law School, York University, CanadaLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/934612018-03-20T14:20:04Z2018-03-20T14:20:04ZHow solid research is helping to change minimum living standards – and the law<figure><img src="https://images.theconversation.com/files/211162/original/file-20180320-31608-yniv7w.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Income shouldn't restrict access to justice.</span> <span class="attribution"><a class="source" href="https://www.shutterstock.com/download/success?src=KbW0HVj8tk-t3-5Nw8Y8og-1-1">Shutterstock</a></span></figcaption></figure><p>The Law Society has mounted a <a href="https://www.lawsociety.org.uk/News/Stories/priced-out-of-justice-legal-aid-means-test-report/">major challenge</a> to the legal aid system’s increasingly stringent restrictions that now entitle only those on the very lowest incomes to help with civil legal costs.</p>
<p>It argues that the system is failing to uphold a principle of common law: that people should not have to sacrifice an acceptable living standard in order to afford the cost of getting access to justice. This principle was established by the <a href="https://www.supremecourt.uk/cases/docs/uksc-2015-0233-judgment.pdf">Supreme Court</a>, based on a quantified measure of a socially acceptable living standard that was produced from <a href="http://www.lboro.ac.uk/research/crsp">my team’s research</a> at Loughborough University.</p>
<p>This measure is a powerful illustration of how systematic evidence can transform how we think about and implement standards. It is commonly accepted that we should maintain stated educational or health standards, and indeed that these should improve over time as society progresses. There is also a desire to maintain decent living standards for the population, but considerable controversy about what this should entail. </p>
<p>Mechanisms for maintaining minimum levels of income, such as means-tested benefits, are not subjected to any type of rigorous inspection – as schools are by the regulator Ofsted, for example – that could show incomes falling below expected standards. When benefits started declining in real terms in 2013 – because they <a href="https://www.theguardian.com/uk/2012/dec/05/george-osborne-link-benefits-inflation">stopped being uprated in line with inflation</a> – no Office for Income Standards handed out a “must improve” rating. </p>
<p>The previous Labour government did pass a <a href="https://www.legislation.gov.uk/ukpga/2010/9/contents">Child Poverty Act</a> (since repealed), with targets for reducing the number of children in poverty, defined as being in households with below 60% of median income. But this useful indicator has never fully achieved the status of a “standard”, partly because it is an abstract statistic rather than a description of what an acceptable standard of living entails.</p>
<h2>A new way of looking at income requirements</h2>
<p>This helps to explain why the <a href="http://www.lboro.ac.uk/research/crsp/mis/">Minimum Income Standard (MIS)</a> – a regular calculation for the UK since 2008 – has attracted growing interest and influence. Carried out independently by the Centre for Research in Social Policy at Loughborough, with the support of the Joseph Rowntree Foundation, the research behind the standard is based on detailed deliberations by members of the public on what goods and services households of different types should be able to afford in order to cover essential material needs and to have the opportunities and choices required to participate in society. The results are used to draw up and cost minimum weekly budgets.</p>
<p>Those adopting this standard have valued how it determines living standards that distinguish “needs” (for example, a mobile phone that enables an individual to communicate – included) from “wants” (an iPhone, an aspirational item – not included). </p>
<p>In 2016, the Living Wage Commission, representing unions, employers and other stakeholders, <a href="https://www.legislation.gov.uk/ukpga/2010/9/contents">concluded</a> that a Living Wage should “accurately reflect the views of ordinary people” about what is needed to live on. It also confirmed MIS as the main basis for setting the voluntary Living Wage, now paid by around 4,000 employers. </p>
<p>The standard has also become the most commonly used tool for <a href="http://www.lboro.ac.uk/media/wwwlboroacuk/content/crsp/downloads/reports/Survey%20of%20charities'%20use%20of%20the%20Minimum%20Income%20Standard%20to%20help%20them%20assess%20the%20financial%20needs%20of%20individuals%20and%20households.pdf">charities</a> giving individual grants to help identify who is in need. They are attracted by the idea of using a living standard that allows for and invites social participation – after all, charities greatly value the external validation of criteria to determine who they should support. </p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/211163/original/file-20180320-31614-1ejr9ky.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/211163/original/file-20180320-31614-1ejr9ky.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/211163/original/file-20180320-31614-1ejr9ky.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/211163/original/file-20180320-31614-1ejr9ky.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/211163/original/file-20180320-31614-1ejr9ky.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=502&fit=crop&dpr=1 754w, https://images.theconversation.com/files/211163/original/file-20180320-31614-1ejr9ky.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=502&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/211163/original/file-20180320-31614-1ejr9ky.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=502&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<span class="caption">The Scottish government has started to adopt the MIS measure.</span>
<span class="attribution"><a class="source" href="https://www.shutterstock.com/download/success?src=LJla1EQerumEPxUOdi7iUg-1-0">Shutterstock</a></span>
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<p>And so the authority of the standard grows as it becomes more widely used. The <a href="http://www.gov.scot/Resource/0052/00527441.pdf">Scottish government</a> has also adopted MIS to help measure fuel poverty, and it is being used experimentally to set <a href="http://dolphinliving.com/new-rent-policy-at-the-new-era-estate/">“living rents”</a>.</p>
<h2>The cost of justice</h2>
<p>In July 2017, the Supreme Court <a href="https://www.supremecourt.uk/cases/docs/uksc-2015-0233-judgment.pdf">ruled</a> that it was unreasonable for the government to charge fees for employment tribunals without an adequate system to help workers afford them if they could not do so out of their own incomes. The court ruled that people should not be required to sacrifice “ordinary and reasonable expenditure” in order to access justice – using MIS as the benchmark. As a consequence, the employment tribunal fees were withdrawn.</p>
<p>In the Law Society’s interpretation, this precedent means that the means-test for legal aid should also not force someone to choose between meeting their needs and accessing justice. I have therefore written a <a href="https://www.lawsociety.org.uk/news/documents/priced-out-of-justice-report/">report</a> for the Law Society evaluating the adequacy of legal aid on this basis. My findings show clearly that people can be excluded from legal aid even though their incomes fall well short of what they would require to meet their needs as measured by MIS, and even without covering legal costs. </p>
<p>This experience shows that national standards can develop not only via top-down government diktat, but also from the production of evidence-based benchmarks and their incremental adoption by employers, civil society and the courts. The big question now, as the Ministry of Justice considers the Law Society’s case for the reform of legal aid, is whether central government will also heed this evidence.</p><img src="https://counter.theconversation.com/content/93461/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Donald Hirsch is a member of the Labour Party</span></em></p>An evidence-based measure of minimum income has been widely adopted – and could now change the rules around legal aid.Donald Hirsch, Professor of Social Policy, Loughborough UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/865702018-01-03T11:48:23Z2018-01-03T11:48:23ZWhy paralegals should be given the right to take on more legal aid case work<figure><img src="https://images.theconversation.com/files/200548/original/file-20180102-26157-1bs5i5t.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Doing lots of the legal leg work. </span> <span class="attribution"><a class="source" href="https://www.shutterstock.com/home">www.shutterstock.com</a></span></figcaption></figure><p>Paralegals are traditionally seen as the unskilled version of a solicitor or barrister – doing much of the background paperwork but not representing a client by themselves or undertaking court work. But this misconception does disservice to the valuable work paralegals undertake, and at a time when cuts to legal aid mean many people can no longer afford expensive legal fees, paralegals should start taking on more case work. </p>
<p>In a similar way to solicitors and barristers, paralegals are regulated by two professional bodies, the <a href="http://www.theiop.org/">Institute of Paralegals</a> (IoP) and the <a href="http://www.nationalparalegals.co.uk/">National Association of Licenced Paralegals</a>, which handle complaints and set standards of conduct and ethics. The IoP <a href="http://www.theiop.org/careers/become-a-qualified-paralegal/law-graduates.html">estimates</a> that there are 60,000 paralegals working in solicitor firms, equating to 44% of all those employed in these firms. Paralegals can also be self-employed, work for government, the not-for-profit sector, in industry or even be part of a paralegal law firm. Such is the growth in the number of paralegals that the <a href="http://www.theiop.org/regulation/paralegal-law-firms.html">IoP estimates</a> there may be more paralegals than solicitors working in solicitor firms within the next ten years. </p>
<p>Much of this growth is linked to <a href="http://www.bbc.co.uk/news/uk-politics-22936684">changes introduced in 2013</a> to the availability of legal aid, meaning that in areas such as family law and <a href="https://theconversation.com/revealed-legal-advice-for-asylum-seekers-disappearing-due-to-legal-aid-cuts-86897">immigration law</a> there is now extremely limited legal aid support. Solicitor fees can often prove too costly, which has led to an increasing numbers of litigants looking for alternatives. Some represent themselves in court, while others use the services of non-qualified people, called <a href="https://theconversation.com/what-are-mckenzie-friends-and-why-are-they-appearing-in-more-courtrooms-65756">McKenzie friends</a>. </p>
<p>This has had an impact on the courts, with cases often taking longer and people needing additional support. As a result, the Ministry of Justice launched a <a href="https://consult.justice.gov.uk/digital-communications/legal-services-review/consult_view/">consultation</a> in late 2017 on the effect of the legal aid cuts. </p>
<h2>Allow paralegals to do more</h2>
<p>Meanwhile, since many paralegals specialise in a few practice areas such as family law, conveyancing or inheritance, their costs can be lower than other legal practitioners. Paralegals can already assist those unable to afford solicitors (and possibly a barrister too) and can receive support from the state, such as legal aid, to fight a case.</p>
<p>In late 2017, the <a href="http://ppr.org.uk/">Professional Paralegal Register</a> and the Institute of Paralegals ran a <a href="http://ppr.org.uk/paralegals/ppr-consultation-2017/?utm_source=theIOP&utm_medium=display&utm_content=970x150&utm_campaign=conference-website&display=bottom-banner">consultation</a> on whether paralegals should be able to argue cases in court. Although paralegals have not been banned from doing so, they have not explicitly been granted the rights of audience in court. The potential positive impact of giving them such rights, particularly for access to justice, is undeniable. I strongly believe that any future changes to legal aid policy should favour paralegals undertaking a larger amount of the case load. </p>
<h2>Training changes</h2>
<p>If paralegals are to take on more responsibility within the English legal system, they will need a different type of training – and I think universities should be more involved. Some universities have already begun to do this: for example, <a href="http://www.nalptraining.co.uk/universities">seven universities</a> already run law programmes that enable students to graduate with a diploma from the National Association of Licensed Paralegals. </p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/200551/original/file-20180102-26169-cbn1z8.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/200551/original/file-20180102-26169-cbn1z8.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/200551/original/file-20180102-26169-cbn1z8.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/200551/original/file-20180102-26169-cbn1z8.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/200551/original/file-20180102-26169-cbn1z8.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/200551/original/file-20180102-26169-cbn1z8.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/200551/original/file-20180102-26169-cbn1z8.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<span class="caption">Make lessons practical.</span>
<span class="attribution"><a class="source" href="https://www.shutterstock.com/home">Shutterstock</a></span>
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<p>Ongoing changes to the way legal professionals are trained offer a good opportunity to embed paralegal training into undergraduate and postgraduate law degrees. In November 2017, the Solicitors Regulation Authority <a href="https://www.sra.org.uk/sra/news/press/sqe-regulations-approved-2017.page">finalised examination regulations</a> for the new Solicitors Qualifying Examination, which must be taken by all solicitors. The first new exams will start in 2020. As a result, universities are redesigning their courses by September 2018 to ensure their law programmes comply with these proposed changes. This provides an opportunity to embed key areas of paralegal practice at all levels of an undergraduate law degree. </p>
<p>The revalidation could also cause a rethink in the types of assessment that undergraduate students undertake on a law degree. Scenario-based learning and assessments could be further developed to replicate what graduates will encounter as either paralegals or solicitors. The current preference for written examinations on abstract legal theory, and sometimes supplemented with coursework, could be modified to include other types of assessment to fully demonstrate the competencies graduates must have in practice. In particular, this could include developing and assessing verbal skills in a courtroom setting. Such advocacy skills in a paralegal could prove invaluable for clients who can’t afford to hire a lawyer. </p>
<p>There are calls for paralegals to get their own professional qualification on top of a law degree, but this will depend on how universities and law schools adapt now to the opportunities to adapt their courses.</p><img src="https://counter.theconversation.com/content/86570/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Adam Doyle does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Cuts to legal aid could see paralegals taking on more case work.Adam Doyle, Head of Law and Criminology Department, University of East LondonLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/889072017-12-18T13:47:49Z2017-12-18T13:47:49ZInside Britain’s asylum appeal system – what it’s like to challenge the Home Office<figure><img src="https://images.theconversation.com/files/199241/original/file-20171214-27555-18nqnsf.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">An asylum appeal court: a judge's view.</span> <span class="attribution"><span class="source">Rebecca Rotter</span>, <a class="license" href="http://creativecommons.org/licenses/by-nc/4.0/">CC BY-NC</a></span></figcaption></figure><p>New evidence suggests that where an asylum seeker ends up in Britain could have a significant impact on the likelihood that they are granted refugee protection, regardless of whether their life is in danger. From an Afghan child fleeing forced recruitment into the Taliban, to a Ugandan lesbian fleeing police violence, geography seems to be affecting the justice process that asylum seekers often depend upon for their safety and their lives.</p>
<p>Freedom of Information <a href="https://eur03.safelinks.protection.outlook.com/?url=http%3A%2F%2Fwww.bbc.co.uk%2Fnews%2Fuk-42153862&data=02%7C01%7CJennifer_Allsopp%40hotmail.com%7C82bf423d539a47f8664908d5383eafd3%7C84df9e7fe9f640afb435aaaaaaaaaaaa%7C1%7C0%7C636476764241048517&sdata=oHe%2FhnDh%2FOCBUGDGyPoQa9Po9jJCzO6QQ1Jtq5WalDc%3D&reserved=0">data</a> obtained by the BBC’s Victoria Derbyshire programme pointed towards the legal “lottery” asylum seekers face depending on where their appeal is heard. The new data related to 36,000 asylum appeals heard between January 2013 and September 2016. It showed asylum seekers were almost twice as likely to win an appeal at Taylor House in Clerkenwell, London (47%) than Belfast (24%) and significantly more likely than in Glasgow (28%).</p>
<p>As part of a <a href="http://geography.exeter.ac.uk/asylumappeals/">recent research project</a>, we observed over 400 asylum appeals and saw firsthand the inconsistencies in the system.</p>
<p>Asylum appeals are a chance for people whose application for refugee status has been rejected by an official in the Home Office to argue before a judge that their case should be reconsidered, or be granted further leave to remain on human rights grounds. The overall success rate on appeal in 2016 was <a href="http://www.migrationobservatory.ox.ac.uk/resources/briefings/migration-to-the-uk-asylum/">over 40%</a>, meaning that more than two fifths of the government’s initial refusal decisions that year were found to be wrong – an astonishingly high figure within the strict terms set out in British law. </p>
<p>There are various reasons why London courts might have higher appeal success rates. London offers some of the best quality immigration law firms in the country and has the densest network of such firms. Often London lawyers are not keen to make the long journeys to courts outside London for hearing that can take all day.</p>
<p>The problem is that asylum seekers are not usually offered a choice on where they are housed and if they refuse to move, they could become homeless. For many poor asylum seekers, this means moving away from London, thereby often foregoing their access to the widest network of legal firms in the country. The UK’s politics of austerity have created new <a href="http://onlinelibrary.wiley.com/doi/10.1111/anti.12258/abstract">legal aid deserts</a> in many areas outside of London. These disparities in success rates are therefore particularly worrying for poorer asylum seekers. Especially as the chances of winning an asylum claim as an unrepresented appellant are painfully low.</p>
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Read more:
<a href="https://theconversation.com/revealed-legal-advice-for-asylum-seekers-disappearing-due-to-legal-aid-cuts-86897">Revealed: legal advice for asylum seekers disappearing due to legal aid cuts</a>
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<p>It’s hard to convey the gravity of the appeal hearing from the perspective of those whose lives may depend on it. An unrepresented male asylum seeker from Gambia, interviewed in Cardiff in February 2014, told us: </p>
<blockquote>
<p>This is stressful. I am alone, I have no family, so it is me alone fighting for my life. The Home Office solicitor was saying I was [lying]. But it is all on the judge – let him decide now. I’ve got no solicitor, no one to speak to, so I go and speak [for myself], that’s what I do.</p>
</blockquote>
<p>For many the process of the appeal is re-traumatising. In the course of our research we observed appellants sobbing and retching in the toilets. One woman counted rosary beads, another fainted.</p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/199721/original/file-20171218-27568-12sua9x.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/199721/original/file-20171218-27568-12sua9x.png?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=448&fit=crop&dpr=1 600w, https://images.theconversation.com/files/199721/original/file-20171218-27568-12sua9x.png?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=448&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/199721/original/file-20171218-27568-12sua9x.png?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=448&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/199721/original/file-20171218-27568-12sua9x.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=564&fit=crop&dpr=1 754w, https://images.theconversation.com/files/199721/original/file-20171218-27568-12sua9x.png?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=564&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/199721/original/file-20171218-27568-12sua9x.png?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=564&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<span class="caption">A rosary left by an appellant in the ladies’ toilet of an appeals court.</span>
<span class="attribution"><span class="source">Jennifer Allsopp</span>, <span class="license">Author provided</span></span>
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</figure>
<h2>Inconsistencies</h2>
<p>Many asylum seekers meet their representative just minutes before the hearing. The shortage of consultation rooms means it is common in busy centres to observe asylum seekers recounting traumatic incidents of persecution to their lawyers while squatted in a public, crowded corridor next to a vending machine, sometimes in tears.</p>
<p>The quality of interpreting is also variable, and often also worse in centres outside major urban centres. In one case we observed, an appellant revealed that the interpreter had misinterpreted “I escaped” with “I was scared”. Because of a well-documented “<a href="https://eur03.safelinks.protection.outlook.com/?url=https%3A%2F%2Fwww.theguardian.com%2Fcommentisfree%2F2015%2Fnov%2F24%2Fgay-asylum-seekers-sexuality-home-office&data=02%7C01%7CJennifer_Allsopp%40hotmail.com%7C82bf423d539a47f8664908d5383eafd3%7C84df9e7fe9f640afb435aaaaaaaaaaaa%7C1%7C0%7C636476764241048517&sdata=tfA0%2BONEKNJpdQwT2sr%2F0UgINhVk0q29L6BYQSP7ljM%3D&reserved=0">culture of disbelief</a>” towards asylum applicants on the part of decision-makers, even small mis-translations can put people at risk of being refused asylum on the grounds of poor credibility.</p>
<p>A lack of consistent process from judges both within and across the different centres is particularly concerning. In a <a href="http://journals.sagepub.com/doi/full/10.1177/0964663917703178">recent study</a> we found that female immigration judges tended to be more helpful towards appellants on the day of the hearing in comparison to male judges. Female judges more frequently explained the nature of the proceedings to appellants and reassured them that they could ask if they did not understand anything. Overall, the judges – both men and women – tended to provide less guidance to female appellants. We did observe some judges going beyond the call of duty to make appellants feel comfortable.</p>
<p>When some judges follow best practice and others do not, disparities are compounded. This level of discretion is inappropriate. This could be tackled with measures as simple as developing video introductions to the procedure in a range of languages. Individual judges are currently largely left to their own devices during the hearings, with no audio or video recording of the hearing to hold them to account, and members of the public are rarely present to scrutinise what happens. One judge told us, asylum tribunals are “not the Old Bailey, we don’t need to cross our ‘i’s’ and dot our ‘t’s’”.</p>
<p>Without a proper explanation of the process at the start, many appellants were confused about what was happening in their hearings. An asylum seeker from Iraq told us that he was desperate for the toilet but unaware that he could ask for a break. In the two-hour appeal, he had recounted watching his brother’s murder and was twice reduced to tears. Another appellant had thought that their whole hearing was a practice.</p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/199250/original/file-20171214-27555-wc6m8y.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/199250/original/file-20171214-27555-wc6m8y.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=397&fit=crop&dpr=1 600w, https://images.theconversation.com/files/199250/original/file-20171214-27555-wc6m8y.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=397&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/199250/original/file-20171214-27555-wc6m8y.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=397&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/199250/original/file-20171214-27555-wc6m8y.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=499&fit=crop&dpr=1 754w, https://images.theconversation.com/files/199250/original/file-20171214-27555-wc6m8y.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=499&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/199250/original/file-20171214-27555-wc6m8y.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=499&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<span class="caption">The Home Office. Asylum decisions made by officials are often overturned on appeal – but it’s a lottery.</span>
<span class="attribution"><span class="source">via shutterstock.com</span></span>
</figcaption>
</figure>
<h2>An unfair situation</h2>
<p>Fatigue, repetition and scheduling are important elements that shape the judges’ behaviour towards the appellants. We found that the helpfulness of judges declined throughout the week. One judge who came to speak to us after a hearing confessed that the “compassion fatigue” of observing multiple hearings per day can be difficult to manage.</p>
<p>Although most judges were attentive to and respectful of appellants, on several occasions, the fatigue manifested itself. We overheard judges requesting legal representatives rush hearings – in one case because they were going on holiday. One judge repeatedly nodded off. Another looked on when a Home Office representative repeatedly swore at the appellant.</p>
<p>Representatives for the Home Office in the hearings we watched often made it difficult for appellants to put their full case forward by using aggressive styles of questioning or letting simple misunderstandings by the appellant go uncorrected. One Home Office presenting officer told us that they used this as a deliberate tactic to make the appellants appear evasive. She explained that in her long career she had never met an asylum seeker she believed, commenting that, “they all lie”. Other Home Office representatives were much more sensitive in their questioning style which allowed the appellants to recount their stories with greater ease.</p>
<p>These newly documented inconsistencies in success rates across tribunals and in procedure undermine faith in the fairness of British law. Failure to do right by those in fear for their lives is shameful and will only result in ever higher appeal rates and a waste of taxpayers’ money.</p><img src="https://counter.theconversation.com/content/88907/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Jennifer Allsopp receives funding from the Economic and Social Research Council. </span></em></p><p class="fine-print"><em><span>Andrew Burridge receives funding from Economic and Social Research Council. </span></em></p><p class="fine-print"><em><span>Melanie Griffiths receives funding from the Economic and Social Research Council.</span></em></p><p class="fine-print"><em><span>Nick Gill receives funding from the Economic and Social Research Council (grant number ES/J023426/1) and the European Research Council (project i.d. 677917).</span></em></p><p class="fine-print"><em><span>Rebecca Rotter receives funding from the Arts and Humanities Research Council. </span></em></p>Inconsistencies in how judges handle appeal cases and different levels of legal provision around the country can leave asylum seekers facing a lottery.Jennifer Allsopp, PhD Candidate and Researcher in Migration Studies, University of OxfordAndrew Burridge, Associate Research Fellow at the College of Life and Environmental Sciences, University of ExeterMelanie Griffiths, Senior Research Associate , University of BristolNick Gill, Professor in Human Geography, University of ExeterRebecca Rotter, Research Fellow, Social Anthropology, The University of EdinburghLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/868972017-11-15T09:10:07Z2017-11-15T09:10:07ZRevealed: legal advice for asylum seekers disappearing due to legal aid cuts<figure><img src="https://images.theconversation.com/files/193579/original/file-20171107-1061-g1h04v.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">A woman at Yarl's Wood detention centre in 2015. </span> <span class="attribution"><span class="source">via shutterstock.com</span></span></figcaption></figure><p>Ever since changes were introduced in 2013 to the way legal aid works in England and Wales, <a href="https://www.amnesty.org.uk/press-releases/cuts-legal-aid-have-decimated-access-justice-thousands-most-vulnerable">campaigners</a>, <a href="https://sirhenrybrooke.me/2017/11/04/the-laspo-review-2-my-address-to-the-bar-conference/">judges</a> and <a href="https://www.parliament.uk/business/committees/committees-a-z/commons-select/public-accounts-committee/news/report-implementing-reforms-to-civil-legal-aid/">politicians</a> have been telling the government that many people are now <a href="https://www.theguardian.com/uk-news/2017/jun/29/legal-aid-cuts-may-have-stopped-grenfell-tenants-pursing-safety-concerns">unable to access</a> legal advice and representation. </p>
<p>In October, the government announced a long-awaited <a href="https://www.theguardian.com/law/2017/oct/31/impact-of-cuts-to-legal-aid-to-come-under-review">review of the changes</a> made in the Legal Aid, Sentencing and Punishment of Offenders Act (LASPO). This is urgently needed and welcome. </p>
<p>My ongoing research with asylum lawyers suggests that the changes have created serious difficulties for people to access legal aid, even for cases that should still be covered by it, such as asylum, trafficking, certain types of housing law and welfare benefits. It is also increasingly difficult for lawyers to provide legal aid for these kinds of cases.</p>
<p>Rates of pay for all areas of civil legal aid work were <a href="https://www.theguardian.com/law/2011/aug/22/legal-aid-law-centre-closures">cut by 10%</a> in 2011, before LAPSO took almost all non-asylum immigration law out of the scope of legal aid two years later. This left potentially complex areas of law – refugee family reunion, deportation, claims for the right to remain in the UK for children and young adults <a href="http://www.justforkidslaw.org/let-us-learn/let-us-learn-blog">who have been here most of their lives</a> – outside the scope of legal aid. It also meant providers who were already on the edge were unable to stay in the legal aid market.</p>
<p>Each <a href="https://www.gov.uk/government/publications/directory-of-legal-aid-providers">provider with a legal aid contract</a> is allocated a number of what are called “matter starts”, new cases which it can open within that contract year, most of which will be paid at a fixed fee, which depends on the type of case. Many providers saw their allocation drastically cut with the removal of non-asylum immigration casework from the scope of legal aid in 2013. This left some <a href="http://www.lag.org.uk/magazine/2013/02/lsc-awards-2013-civil-contracts.aspx">too small to be viable</a>, particularly not-for-profit organisations which had no private paying clients to subsidise their legal aid work. </p>
<h2>Shrinking provision</h2>
<p>Data I received via a Freedom of Information request in early October from the Ministry of Justice showed large parts of England and Wales, including eastern England and much of south-west England – are now without any immigration and asylum providers at all, while other areas are badly under-served and have had huge cuts in their number of matter starts. My additional research shows that there is now only one provider in Plymouth, none in Cornwall, and none in Somerset, Wiltshire or Dorset. In Bedfordshire and south Hertfordshire, the number of matter starts more than halved from 930 in 2014-15 to 458 in 2016-17. </p>
<p>Some providers now survive by reducing the amount or quality of work they do on legal aid cases, keeping the cost per case within the fixed fee.</p>
<p>Asylum cases, which still qualify for legal aid, tend to take longer to close and are more complex than most non-asylum cases. In the past, to some extent the non-asylum cases subsidised the asylum work when they were still covered by legal aid. But when LASPO took effect, one not-for-profit provider I studied in southern England halved the size of its team, not because of a lack of demand but because there was a limit to how much it could afford to subsidise the unprofitable asylum work. </p>
<p>Since LASPO, the only other provider for asylum legal aid services in the same area, known as a “procurement point”, has withdrawn from legal aid work, citing the <a href="https://www.newlawjournal.co.uk/content/out-cold-time-axe-legal-aid-agency">stress of frequent auditing</a>, contract compliance requirements and quibbles over payment. The partners in that firm decided the low payment rates on legal aid did not outweigh that hassle. This left the one small provider referred to above – less than half the size of the firm which withdrew – for the three counties which make up that procurement point. The area includes a town to which asylum applicants have historically been dispersed, and where asylum advice is therefore in demand. Support groups report being unable to find legal advisers for people seeking asylum.</p>
<h2>Paperwork hurdles</h2>
<p>Immigration detention creates particular difficulties for lawyers. Firms which provide advice in detention centres do so via face-to-face “surgeries” at which they can spend up to half an hour each with up to ten clients. A half-hour appointment is at best very limited for a lawyer to understand the basics of the case, often through an interpreter via speaker phone, explain their advice and assess the client’s eligibility for further legal aid if appropriate. </p>
<p>Worse still, the lawyer cannot do any further work on a case unless the client can prove their financial eligibility for legal aid, for example with bank statements. Lawyers say this is relatively easy for a newly arrived asylum seeker, but may be impossible for someone who has been in the UK for a bit longer, possibly as a student, or those working or self-employed for some period.</p>
<p>People who are detained suddenly may find their landlord has disposed of all their belongings and paperwork. Those without good contacts on the outside to obtain bank statements or other documentation may be left without representation, despite being eligible for legal aid. One provider I spoke to estimated that there was usually one client in every ten-slot surgery who she could not represent because of lack of evidence of financial means.</p>
<p>When asylum applications are refused, the applicant is assumed to be lying, or “bogus”, rather than the victim of a system which is not working. Over a third of rejected applications <a href="https://www.refugeecouncil.org.uk/stats">succeed on appeal</a> and perhaps many more would do so given properly funded representation.</p>
<p>The LASPO review needs to take an honest and open-minded look at the evidence about the consequences of the legal aid changes on the justice system. And an honest examination of the evidence must surely conclude that the cuts to legal aid have gone too far.</p><img src="https://counter.theconversation.com/content/86897/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Jo Wilding is a barrister at Garden Court Chambers, which does significant amounts of legal aid work. She has previously received European Union funding for research.</span></em></p>It is becoming harder and harder to access legal aid for immigration cases.Jo Wilding, PhD candidate, University of BrightonLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/841592017-09-22T00:36:47Z2017-09-22T00:36:47ZEvery year, millions try to navigate US courts without a lawyer<figure><img src="https://images.theconversation.com/files/186438/original/file-20170918-8285-10khwo2.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Going to court? You're on your own.</span> <span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/symbol-law-justice-empty-courtroom-concept-170949320">tlegend/shutterstock.com</a></span></figcaption></figure><p>Judge Richard A. Posner, a legendary judicial figure, retired abruptly earlier this month to make a point: People without lawyers are mistreated in the American legal system.</p>
<p>In one of his <a href="http://cases.justia.com/federal/appellate-courts/ca7/16-2471/16-2471-2017-05-22.pdf?ts=1495488652">final opinions</a> as a judge on the United States Court of Appeals for the Seventh Circuit, he <a href="https://nyti.ms/2xVeS8m">expressed frustration</a> at the dismissal of one self-represented litigant’s lawsuit, writing that the prisoner, Michael Davis, “needs help – needs it bad – needs a lawyer desperately.” </p>
<p>Unfortunately, Davis’s circumstances are far from unique. Many lower-income people have no lawyer to help them navigate the legal system, either in civil or criminal cases. </p>
<p><a href="https://nyti.ms/2kNdLo2">Eighty percent</a> of state criminal defendants cannot afford to pay for a lawyer, and only those who are actually incarcerated are constitutionally entitled to appointed counsel. Many people facing misdemeanor charges can, if convicted, be subjected to significant fines and fees, or face the loss of benefits (including housing) or deportation. Yet, they have <a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2943412">no right to an attorney</a>, and those who cannot afford a lawyer will go without one. </p>
<p>Unlike in the criminal context, there’s no federal constitutional <a href="http://civilrighttocounsel.org/">right to counsel in civil cases</a>. Civil cases can involve a range of critical issues, including housing, public benefits, child custody and domestic violence. And while some civil litigants may be entitled to counsel in certain jurisdictions, in most of these cases, people who cannot afford a lawyer will be forced to go it alone. Doing so may mean that they fail to make it through the process, have their case dismissed or lose what otherwise would have been a winning case. </p>
<p>As directors of the <a href="http://law.gsu.edu/a2j">Center for Access to Justice</a> at Georgia State University College of Law, we agree with Judge Posner. People like Michael Davis desperately need help. Without legal assistance, their issues will likely be unresolved or, worse, wrongly resolved against them.</p>
<h1>Unrepresented</h1>
<p>In some states, as many as 80 to 90 percent of litigants are <a href="http://ssrn.com/abstract=2613648">unrepresented</a>, even though their opponent has a lawyer. The number of these “pro se litigants” has <a href="https://nyti.ms/2y99gHy">risen substantially</a> in the last decade, due in part to the <a href="http://www.abajournal.com/files/Coalition_for_Justice_Report_on_Survey.pdf">economic downturn</a> and the relationship between poor economic conditions and issues like housing and domestic relations. </p>
<p>The Legal Services Corporation, the single largest funder of civil legal aid for low-income Americans in the nation, <a href="https://www.lsc.gov/media-center/publications/2017-justice-gap-report">reported in June</a> that 86 percent of low-income Americans receive inadequate or no professional legal help for the civil legal problems they face. Here in Georgia, state courts heard <a href="http://www.gasupreme.us/2017-state-of-judiciary-address">more than 800,000 cases</a> involving self-represented litigants in 2016 alone.</p>
<p>In some types of cases, not having counsel can make a dramatic difference. Take the example of low-income tenants facing eviction. Across the county, roughly <a href="https://nyti.ms/2k0h6fQ">90 percent</a> of landlords are represented by counsel, while 90 percent of tenants are not. Simply having a lawyer increases the odds of being able to stay in one’s home. When tenants represent themselves in New York City, they are evicted in nearly 50 percent of cases. With a lawyer, they win <a href="https://nyti.ms/2mz3MS0">90 percent of the time</a>.</p>
<h1>Navigating the system</h1>
<p>Why is having a lawyer so important? The reality is that even the most mundane legal matters can require dozens of steps and complex maneuvering.</p>
<p>In one study, researchers identified <a href="http://scholarship.kentlaw.iit.edu/cgi/viewcontent.cgi?article=1572&context=fac_schol">almost 200 discrete tasks</a> that self-represented litigants must perform in civil cases – from finding the right court to interpreting the law, filing motions, compiling evidence and negotiating a settlement. Some of these tasks require specialized knowledge of the law and of the court system. Almost all require time away from work and caring for children. Many also require the ability to get to the courthouse, to read and to speak English or access a translator.</p>
<p>The <a href="http://a2jlab.org/">Access to Justice Lab</a> at Harvard Law School has also tracked how labyrinthine the justice system can be. Just starting a routine process – like establishing a <a href="http://a2jlab.org/guardianship-service-of-process-and-a2j/">legal guardian for a minor</a> – can take many steps, and even these can vary in unexpected ways, given the natural variation among judges and the particulars of a specific case.</p>
<p>Regardless of the type of case, missing <a href="http://a2jlab.org/youve-been-served/">just one step</a> could mean you have to start the process all over again or even cause the case to be dismissed, sometimes without the option to refile.</p>
<p>People often quip that there are far too many lawyers. Yet the reality is that, while there are a lot of lawyers in certain geographic areas and certain specialties, in many rural areas – sometimes referred to as “legal deserts” – there are actually far too few lawyers. </p>
<p><a href="http://www.law.gsu.edu/a2j">Our center</a> recently published a <a href="http://law.gsu.edu/center-access-justice/research/">map</a> of Georgia’s legal deserts. In our state, there are five counties without any lawyers at all and another 59 with 10 lawyers or fewer. </p>
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<p>To make matters worse, in many of those counties, public transportation and internet access are sparse, and a significant percentage of the population doesn’t even have access to a vehicle. </p>
<p>The <a href="https://www.srln.org/">Self-Represented Litigation Network</a>, a nonprofit focused on reforming the system to help those representing themselves, has also used <a href="https://arcg.is/0jOezP">mapping tools</a> to depict how access to the justice system can vary across the country and sometimes even within the same state. </p>
<h1>Changing the statistics</h1>
<p>So, what do we do about the fact that the legal system is, for many people without a lawyer, nearly impossible to navigate? We believe that it will take a variety of different approaches to solve this issue.</p>
<p>Some experts, like John Pollock with the <a href="http://www.civilrighttocounsel.org">National Coalition for a Civil Right to Counsel</a>, have focused on expanding the right to counsel in <a href="http://civilrighttocounsel.org/">civil cases implicating basic human needs</a>. Others have advocated for expansion of the right to counsel in lower-level criminal cases where the <a href="http://time.com/76356/a-misdemeanor-conviction-is-not-a-big-deal-right-think-again/">consequences</a> – including obstacles to housing or employment, or deportation – can still be incredibly high.</p>
<p>In <a href="http://www.wsba.org/licensing-and-lawyer-conduct/limited-licenses/legal-technicians">Washington</a>, nonlawyers can be trained and licensed to offer legal support to those unable to afford the services of an attorney.</p>
<p>Still others, like Self-Represented Litigation Network founder <a href="https://accesstojustice.net/about/">Richard Zorza</a>, emphasize <a href="http://www.zorza.net/Simple.pdf">simplification</a> of legal processes, including changing or eliminating the procedural and evidentiary rules that make the process so difficult. For example, the Tennessee Supreme Court has approved <a href="http://www.chattanoogan.com/2016/10/31/335174/Tennessee-Supreme-Court-Adopts-Forms.aspx">plain-language forms and instructions</a>, written at a fifth- to eighth-grade reading level, for use in uncontested divorces between parties with minor children.</p>
<p>Maybe it’s a matter of increasing available <a href="https://www.americanbar.org/groups/delivery_legal_services/resources/pro_se_unbundling_resource_center/self_service_centers.html">self-help resources</a> or placing the <a href="http://ssrn.com/abstract=2613648">onus on the courts</a> and requiring judges to play a more active role in solving the problem. </p>
<p>Which approach is best? It may depend on the case – and an effective solution will include a combination of the above. Some cases will require nothing less than full-service representation by a lawyer, while in other contexts, streamlined procedures and simpler forms may be sufficient for pro se litigants to get a fair shake. </p>
<p>Whatever the solution, the problem is clear: Self-represented litigants’ grievances are real and, for too many, justice is out of reach.</p><img src="https://counter.theconversation.com/content/84159/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Lauren Sudeall Lucas is the Faculty Director of the Center for Access to Justice at the Georgia State University College of Law. She serves on the American Bar Association's Standing Committee on Legal Aid and Indigent Defendants and on the board of directors of the Southern Center for Human Rights. She has received research funding for a study regarding the civil legal needs of indigent criminal defendants from the Charles Koch Foundation.</span></em></p><p class="fine-print"><em><span>Darcy Meals is the Assistant Director for the Center for Access to Justice at Georgia State University College of Law and is the co-chair of the Leadership Council for the Southern Center for Human Rights. </span></em></p>Many who represent themselves in court fail to make it through the process, have their case dismissed or lose what otherwise would have been a winning case.Lauren Sudeall, Associate Professor of Law; Faculty Director, Center for Access to Justice, Georgia State UniversityDarcy Meals, Assistant Director, Center for Access to Justice, Georgia State UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/675922016-12-23T06:40:16Z2016-12-23T06:40:16ZHow legal aid cuts are putting extra strain on family courts<figure><img src="https://images.theconversation.com/files/150791/original/image-20161219-24265-1llqemx.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption"></span> <span class="attribution"><span class="source">designer491/shutterstock.com</span></span></figcaption></figure><p>It has been over three years since the coalition government introduced <a href="http://www.bbc.co.uk/news/uk-politics-22936684">drastic cuts</a> to legal aid. During that time, <a href="https://theconversation.com/innocents-will-suffer-as-legal-cuts-put-paid-to-due-process-21775">much has been written</a> about the impact of those cuts on members of the public attempting to access justice in their family cases. </p>
<p>But there has been another victim of these cuts: the family court system itself. It is currently bulging under pressure from both an increase in applicants who have been forced to represent themselves in family proceedings and also from a rise in applications for injunctions linked to domestic violence. </p>
<h2>Unrepresented parties</h2>
<p>Although the exact numbers of people representing themselves within the court system is difficult to measure, <a href="http://researchbriefings.parliament.uk/ResearchBriefing/Summary/SN07113">a recent government report</a> has indicated the numbers are on the rise. </p>
<p>Without the assistance of legal representatives, out-of-court discussions can be tricky and most negotiation has to be done within the courtroom, with the assistance of a judge. Even where one party has the assistance of a legal representative, <a href="https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/380479/litigants-in-person-in-private-family-law-cases.pdf">hearings are likely to take much longer</a> than those where both parties have representation. </p>
<p>This appears to be because judges are seeking to ensure fairness between the parties and spend time within the hearing confirming that the unrepresented party fully understands the process and what (if anything) they are agreeing to. Guidance on this issue from the <a href="http://www.lawsociety.org.uk/news/documents/litigants-in-person-guidelines-for-lawyers-june-2015/">Law Society</a> indicates that courts may be more willing to grant extensions or adjournments to an unrepresented party.</p>
<p>It was hoped that the introduction of compulsory <a href="http://www.familymediationcouncil.org.uk/family-mediation/assessment-meeting-miam/">mediation information and assessment meetings</a> (MIAMs), in 2014 would prevent this by promoting out of court settlements and in turn reducing the number of family court applications.</p>
<p>Yet, research conducted in April 2016 by the National Family Mediation charity <a href="http://www.nfm.org.uk/index.php/about-nfm/news/605-government-divorce-policy-failing-as-separating-couples-head-straight-to-court">indicated</a> that only one in 20 private family court applications are actually preceded by the supposedly “compulsory” MIAM process. New <a href="https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/577475/legal-aid-statistics-bulletin.pdf">figures</a> show that the number of MIAMs fell by 17% between April and September 2016 and the same period in 2015. </p>
<p>The problem appears to be that, even if one party wishes to follow the full mediation process following the MIAM, the other party must also agree. Without agreement from both parties to the mediation process, the person seeking resolution of their family issue may have no choice but to start legal proceedings without any subsequent advice or assistance.</p>
<h2>Family courts and evidence of domestic abuse</h2>
<p>The cuts to public funding have meant legal aid is largely unavailable in family law cases. The exception is where evidence of domestic abuse or violence can be produced. Yet, in many cases where there has been domestic abuse, victims have been reluctant to speak out and the abuse has ultimately gone unreported. </p>
<p>This issue was picked up last year by the charity <a href="https://www.theguardian.com/law/2016/feb/18/changes-to-legal-aid-for-domestic-violence-victims-ruled-invalid">Women’s Aid</a>, who succeeded in bringing a court action to challenge such restrictions on legal aid. This was on the grounds that restrictions on who is eligible for legal aid caused by the level of evidence needed to prove domestic violence had taken place were undermining the actual purpose of legal aid regulations. That purpose is to ensure that victims of domestic abuse are not materially disadvantaged from having to face their abuser in court. </p>
<p>This resulted in a government review of the regulations. Since April 2016, the Legal Aid Agency <a href="http://www.familylawweek.co.uk/site.aspx?i=ed160432">now accepts</a> evidence of domestic abuse within the last five years in support of a legal aid application, compared to the previous time-frame of two years. Looking at statistical data, this does appear to have helped more people access funding. Newly <a href="https://www.gov.uk/government/statistics/legal-aid-statistics-july-to-september-2016">released figures</a> show a 26% increase in applications for legal aid supported by evidence of domestic violence between July and September 2016 and the same period in 2015, and a 51% increase in grants. </p>
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<p>However, despite these changes, the underlying problem remains that, except for family law injunctions, some evidence of domestic abuse must still be provided before legal aid is approved. This has led to <a href="http://thecustodyminefield.blogspot.co.uk/2014/01/abusing-legal-aid.html">concerns</a> that people could be forced to use the family courts to obtain the necessary evidence of domestic abuse they require for their legal aid applications in other family court proceedings – such as those to gain access to their children. </p>
<p>For example, a man or a woman could first make an application for a non-molestation order (a type of injunction) against their ex-partner and subsequently use that order as required evidence of domestic violence in a custody hearing. Legal aid remains available for non-molestation applications without any need for prior evidence of domestic abuse.</p>
<p>The standard of proof or evidence required by the family courts in support of these applications <a href="http://www.marilynstowe.co.uk/2015/05/23/the-standard-of-proof-in-family-law/">is much lower</a> than that required in criminal proceedings. It is therefore much more likely that an application of this type will be successful, even if the available evidence of the abuse is limited. Quite often these applications will be based solely on one person’s version of events compared to another’s. </p>
<h2>Family courts under strain</h2>
<p><a href="http://thecustodyminefield.com/non-molestation-orders-the-national-picture-north-west-anomaly-and-fpcs/">Data gathered</a> by a series of freedom of information requests in 2015 showed a general increase in applications for non-molestation orders since the legal aid changes were brought in, although admittedly in some areas of England more than others. On top of this, <a href="https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/577502/family-court-statistics-quarterly.pdf">there has been a 14% increase</a> in other private family law cases in the last year alone. All this means that the list of those waiting for hearings in family courts are increasingly busy. </p>
<p>At the same time, those people who could have previously sourced legal aid due to their low income will usually be entitled to either a full waiver or a reduction in their court fee. Since 2014, fees are also no longer payable in applications for non-molestation orders. This means that the courts are not even receiving a contribution towards their running costs in these cases, and are running on empty.</p>
<p>By cutting legal aid, the government has seemingly only succeeded in passing the burden from one publicly funded agency, the Legal Aid Agency, to another, HM Courts and Tribunals Service. The family court system is currently at breaking point and further government review is urgently needed if people are going to be able to continue to use the system effectively.</p><img src="https://counter.theconversation.com/content/67592/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Kayliegh Richardson does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The UK’s family court system is at breaking point.Kayliegh Richardson, Senior Lecturer in Family Law and Child Care Law, Northumbria University, NewcastleLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/518362016-12-12T15:21:18Z2016-12-12T15:21:18ZDivorce can be nobody’s fault – the law should do more to recognise that<figure><img src="https://images.theconversation.com/files/149415/original/image-20161209-31405-1w4u9sa.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><a class="source" href="https://commons.wikimedia.org/wiki/File:Just_divorced.jpg">Jennifer Pahlka/flickr.com</a>, <a class="license" href="http://creativecommons.org/licenses/by-sa/4.0/">CC BY-SA</a></span></figcaption></figure><p>The law affecting families in England and Wales is changing. Since legal aid was withdrawn in family law cases by <a href="http://www.legislation.gov.uk/ukpga/2012/10/contents/enacted">legislation in 2012</a>, resolving disputes amicably on divorce has never been more important. People are having to navigate a complex legal framework <a href="https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/380479/litigants-in-person-in-private-family-law-cases.pdf">without legal support</a> at the most emotionally fraught time of their lives. </p>
<p>But the law itself is failing divorcing couples by making compromise more difficult. It effectively encourages spouses to attribute blame even when no-one is at fault. <a href="http://www.familylaw.co.uk/news_and_comment/family-lawyers-gather-in-parliament-to-call-for-no-fault-divorce#.WD9ip7KLTIU">Family lawyers</a> and <a href="http://www.telegraph.co.uk/women/sex/divorce/10796954/Top-family-judge-calls-for-no-fault-divorce-for-all-and-putting-cohabitees-on-a-par-with-married-couples.html">leading judges</a> are now calling for legislative reform.</p>
<p>Since the 1970s, the sole ground for divorce in England and Wales is irretrievable breakdown of the marriage. This is established on proof of <a href="http://www.legislation.gov.uk/ukpga/1973/18/section/1">one of five facts</a>: adultery, behaviour, desertion, two years separation with consent or five years separation without consent. The latter two facts require no fault but do mean years of waiting – and if a couple mutually wish to divorce there may be various emotional and economic reasons why they cannot wait this long.</p>
<p>So, although couples are not required to attribute blame to establish irretrievable breakdown, they are often compelled to do so if they want to end their marriage quickly. For instance, if one can prove that their spouse is guilty of adultery – an option <a href="http://www.legislation.gov.uk/ukpga/2013/30/notes/division/2/9/3">not available to same-sex married couples</a> – or behaviour that is unreasonable, the divorce can be finalised in less than six months. All this means that divorce is a much quicker process when there is someone to blame.</p>
<p>It is therefore unsurprising that the latest available <a href="http://www.ons.gov.uk/ons/rel/vsob1/divorces-in-england-and-wales/2013/stb-divorces-in-england-and-wales--2013.html#tab-Fact-proven-at-divorce">statistics</a> indicate that the most common reason spouses divorce is unreasonable behaviour, as the graph below shows. A YouGov survey commissioned in 2015 by Resolution, an organisation of family lawyers, found that <a href="http://www.resolution.org.uk/news-list.asp?page_id=228&n_id=301">27% of couples</a> proved irretrievable breakdown on the basis of fault because it was quicker and easier, admitting that neither spouse was to blame for the separation. </p>
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<h2>Fabricating fault</h2>
<p>One of the most significant reasons spouses turn to apportioning blame is that their property and finances cannot be divided until the divorce is finalised. For individuals who had previously been financially dependent on their ex-partner, a delay of a couple of years in financial relief could be disastrous. One way of avoiding this is to blame the other party for the marriage breakdown, even if such allegations are untrue.</p>
<p>This is problematic to say the least. Spouses may ruin an otherwise amicable separation by having to decide whose name will be recorded on the divorce petition as being responsible for the end of the marriage. Worse still, this process is unnecessary, as allegations of fault in a divorce petition have no bearing on how the marital assets are subsequently divided.</p>
<p><a href="https://ore.exeter.ac.uk/repository/handle/10871/15172">Research has shown</a> that this emphasis on fault increases animosity during relationship breakdown, because it encourages family disputes to be resolved in an adversarial way. The consequences of this are serious. Attributing blame can lead to bitterness and hostility, reducing the chance of reconciliation and prolonging the resolution of issues such as child arrangements and financial redistribution. It also costs more and puts pressure on court resources. </p>
<p>Not only is this detrimental to any children involved, but an emphasis on apportioning fault in proceedings could also jeopardise couples’ chances for successful mediation. It has consistently been proven that mediation is less likely to be successful in <a href="https://socialsciences.exeter.ac.uk/media/universityofexeter/collegeofsocialsciencesandinternationalstudies/lawimages/familyregulationandsociety/pdfs/Mapping_Paths_to_Family_Justice_Briefing_Paper_23_06_14.pdf">high conflict</a> situations, yet fault-based divorce brings conflict to the fore. For the <a href="http://researchbriefings.parliament.uk/ResearchBriefing/Summary/SN07113">increasing numbers of people representing themselves</a> in court, a fault-driven divorce process further aggravates an already volatile situation. This can be very damaging when there is no solicitor present to alleviate tensions.</p>
<h2>Appetite for reform</h2>
<p>Reform that eliminates fault from divorce law would not only encourage a non-adversarial process, but as president of the Family Division James Munby put it, more <a href="http://www.bbc.co.uk/news/uk-27206987">“intellectual honesty”</a> would be brought to the divorce process because spouses would not have to make fictitious accusations of unreasonable behaviour against each other. </p>
<p>Calls for reform have been around for 20 years. The Law Commission <a href="https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/228985/0636.pdf">recommended reform in 1990</a>. But, provisions seeking to eliminate fault on divorce in the Family Law Act 1996 were never introduced and were repealed by the Children and Families Act 2014.</p>
<p>Now, amid recent developments such as the potential introduction of <a href="https://www.lawgazette.co.uk/practice/divorce-to-move-online-in-2017-says-munby/5053929.article">online divorce next year</a>, reform may finally be imminent. </p>
<p>On November 30, more than 150 family law practitioners from Resolution <a href="http://www.familylaw.co.uk/news_and_comment/family-lawyers-gather-in-parliament-to-call-for-no-fault-divorce#.WD9ip7KLTIU">lobbied parliament</a> to make divorce a <a href="http://bbc.in/2gZ0PWW">“kinder process”</a> by reducing the wait in cases where both spouses consent and no-one is deemed at fault from two years of separation to six months. There is also <a href="http://www.theguardian.com/law/2015/dec/04/four-in-five-back-no-fault-divorces-poll">public appetite</a> for no-fault divorce. </p>
<p>Those opposed to reform are concerned that it would mean a huge surge in the number of divorces, and that this, in turn, would destabilise the family unit. Yet, there is no research to support this and the divorce rate is currently at its <a href="http://www.jordanpublishing.co.uk/system/froala_assets/documents/1336/ONS_divorce_rates_in_England_and_Wales_2014.pdf">lowest since the 1970s</a>. In Scotland, where couples can consent to divorce <a href="http://www.legislation.gov.uk/asp/2006/2/crossheading/divorce">after one year</a> of separation without blaming either person, <a href="http://www.familylaw.co.uk/news_and_comment/in-anticipation-of-a-temporary-blip-would-a-change-in-the-divorce-law-increase-the-divorce-rate#.VmMuPHbhDIV">divorce rates are also decreasing</a>. </p>
<p><a href="http://www.resolution.org.uk/editorial.asp?page_id=308">Resolution’s campaign</a> for the removal of fault-based divorce highlights the pressing problems with divorce law in England and Wales. Fictional allegations of fault are exacerbating bitterness at a time when spouses must go increasingly through to the divorce proceedings <a href="https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/380479/litigants-in-person-in-private-family-law-cases.pdf">without any legal support</a>.</p><img src="https://counter.theconversation.com/content/51836/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Sharon Thompson does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Couples filing for divorce have an incentive to pin the blame for marriage breakdown on one person. This should stop.Sharon Thompson, Lecturer in Law, Cardiff UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/657562016-09-23T12:44:39Z2016-09-23T12:44:39ZWhat are McKenzie friends and why are they appearing in more courtrooms?<figure><img src="https://images.theconversation.com/files/138968/original/image-20160923-29916-13g3pw5.jpg?ixlib=rb-1.1.0&rect=0%2C299%2C1000%2C669&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Going to court? Who's your true friend?</span> <span class="attribution"><span class="source">Paul Matthew Photography / Shutterstock.com </span></span></figcaption></figure><p>It used to be that if you needed a lawyer but didn’t have the money to hire one, you could usually get support through legal aid. But since big cuts to the civil <a href="http://www.bbc.co.uk/news/uk-politics-22936684">legal aid budget in April 2013</a>, the number of people accessing free legal services <a href="https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/533178/legal-aid-statistics-england-and-wales-bulletin-jan-to-mar_16.pdf">has fallen dramatically</a> as cases such as divorce, child contact and welfare benefits no longer qualify for legal aid.</p>
<p>Although it’s not clear how many people are now representing themselves in court as a result, <a href="https://www.parliament.uk/business/committees/committees-a-z/commons-select/justice-committee/news/lapso-report/">a report by a group of MPs</a> indicated that the numbers are significant and rising. Being a litigant in person can be a daunting process with a lot riding on the outcome. </p>
<p>Into the breach have stepped so-called McKenzie friends. These are people who are not qualified lawyers but are allowed to represent a party to civil proceedings if they have been given permission by the judge to do so. The term McKenzie dates back to a divorce case in 1970 in which the husband, Levine McKenzie, used the support of an Australian barrister who was not registered in the UK. While McKenzie friends are therefore not new to English courts, there is <a href="http://www.legalservicesconsumerpanel.org.uk/publications/research_and_reports/documents/2014%2004%2017%20MKF_Final.pdf">evidence</a> of an increase in their use following the cuts to legal aid. </p>
<p>Today, there are two main types of McKenzie friends: those that are free and those that charge fees. Free McKenzie friends include a number of university law schools and charities who provide assistance to litigants in person. </p>
<p>Fee-paying McKenzie friends are more controversial. They are not regulated and not required to have professional indemnity insurance, which means that clients cannot be sure they will be compensated if bad advice loses their case. Free McKenzie friends are not formally regulated either, but they typically do not offer legal advice, confining themselves to assisting clients with tasks such as note-taking, putting documents into chronological order or providing emotional support. Usually they are also insured. </p>
<p>By contrast, fee-paying McKenzie friends will often engage in advocacy on behalf of clients as well as offer detailed legal advice. Sometimes their fees can be high with <a href="http://www.barcouncil.org.uk/media-centre/news-and-press-releases/2016/april/mckenzie-friends-bar-chairman-says-consumer-protection-has-to-be-paramount/">reports</a> of some charging £100 per hour for their services. This does not offer any saving as it would be possible to employ a junior qualified lawyer for a similar amount. </p>
<h2>Bad behaviour</h2>
<p>There have also been concerns expressed over the behaviour of some McKenzie friends. In mid-September, one was accused (by the opposite party) of hijacking the case to pursue his own agenda while acting on behalf of a boatowner. While the judge ultimately <a href="http://www.lawgazette.co.uk/law/relentless-and-obstinate-mckenzie-friend-allowed-to-be-advocate/5057687.fullarticle">allowed him to act</a> on behalf of the claimant, the complaint reflects one of the fears relating to McKenzie friends: that they will be used by pressure groups to advance their own agendas.</p>
<p>This follows other cases where distinctly undignified courtroom behaviour has taken place. For example, in 2015 a McKenzie friend who had served prison sentences for dishonesty and public order offences <a href="http://www.lawgazette.co.uk/news/ex-bouncer-mckenzie-friend-banned-after-calling-lawyer-a-lying-slag/5049010.fullarticle">was banned</a> from representing anyone for life after insulting an opponent and for other bad behaviour. </p>
<p>In response to incidents like this the judiciary have <a href="http://www.lawgazette.co.uk/practice/judiciary-proposes-ban-on-fee-charging-mckenzie-friends/5053851.fullarticle">consulted</a> on a ban on fee-paying McKenzie friends. The Law Society and the Bar Council have supported the idea. Yet some regulators, such as the Legal Services Board and the Solicitors Regulation Authority, are <a href="http://www.lawgazette.co.uk/law/no-case-for-ban-on-paid-mckenzie-friends-regulators/5055493.fullarticle">opposed</a>, saying there is not enough evidence for a ban.</p>
<p>Not all fee-paying McKenzie friends engage in such egregious behaviour. Some have had experience in related disciplines like social work, and provide useful complementary perspectives to courts. Others are paralegals who are not legal professionals but have legal qualifications. There are <a href="http://www.lawgazette.co.uk/practice/solicitors-becoming-mckenzie-friends-to-avoid-regulatory-costs-cma-told/5054974.fullarticle">also reports</a> of solicitors becoming fee-paying McKenzie friends in order to avoid regulatory costs, enabling them to provide assistance at a more affordable cost to clients. There are also attempts at voluntary self regulation. For example, the <a href="http://www.mckenziefriends.directory/">Society for Professional McKenzie Friends</a> requires its members to carry professional indemnity insurance.</p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/138971/original/image-20160923-29921-1ivhj5t.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/138971/original/image-20160923-29921-1ivhj5t.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=399&fit=crop&dpr=1 600w, https://images.theconversation.com/files/138971/original/image-20160923-29921-1ivhj5t.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=399&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/138971/original/image-20160923-29921-1ivhj5t.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=399&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/138971/original/image-20160923-29921-1ivhj5t.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=501&fit=crop&dpr=1 754w, https://images.theconversation.com/files/138971/original/image-20160923-29921-1ivhj5t.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=501&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/138971/original/image-20160923-29921-1ivhj5t.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=501&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Keep it simple.</span>
<span class="attribution"><span class="source">Evlakhov Valeriy/ www.shutterstock.com</span></span>
</figcaption>
</figure>
<h2>Making justice more accessible</h2>
<p>When even middle-income people <a href="http://asauk.org.uk/wp-content/uploads/2013/09/Dramatic-drop-in-civil-legal-aid-eligibility.pdf">are struggling</a> to afford legal services it is clear that there is a huge issue about access to justice. Changes in business and regulatory practice – such as solicitors charging fixed fees, charging for specific tasks instead of conducting the entire case a practice known as “unbundling” and use of online courts and telephone hearings – may alleviate the problem caused by regulatory burdens which make legal services expensive. But, professional indemnity insurance, which solicitors are required to have, is a gold-plated service which comes at a price: it offers effective consumer protection but increases the cost of services. </p>
<p>The term McKenzie friend is not informative to consumers. It is also confusing as it suggests they are part of the court system, which they are not. A “court assistant” might be a more informative title, though it would mean they are part of the court system. This would give greater clarity to their role, but if they were part of the system they would need to adhere to a disciplinary code that would need to specify the tasks they could undertake – and would require insurance. To some extent, formalising them like this would mean a trade-off between enhanced consumer protection and affordability.</p><img src="https://counter.theconversation.com/content/65756/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Richard Owen is a member of the Law Society's Wales and Access to Justice Committees. However, all views expressed are personal opinions.</span></em></p>Legal aid cuts have made people going to court turn for help elsewhere.Richard Owen, Director Essex Law Clinic, School of Law, University of EssexLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/506242016-01-11T15:45:44Z2016-01-11T15:45:44ZSecret evidence: coming to an employment tribunal near you<figure><img src="https://images.theconversation.com/files/107173/original/image-20160104-28997-swd7vh.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Secret evidence can leave employees in the dark.</span> <span class="attribution"><a class="source" href="https://www.flickr.com/photos/salowphotography/5641137120/in/photolist-8kPZNN-65RLba-72TyzV-5ajPtW-9tr9r-7rcGLA-2Ey8Ck-Rka7X-9GZYt6-4Yd72x-8JU33R-5ypVap-3X2xXU-46W6WL-9AuiwQ-7DCXSg-98YWb-nUj1u-6X6Lif-6X2JGF-6X6L71-6X2L6z-6X2LfK-6X2JxB-6X6KRu-6X2KUi-6X6KzA-6X2KKB-aVAtG-7vuaGQ-ptarz3-cg2m3C-dDiAXU-4eEupy-7cuuLS-7mFGFF-kmm34w-kmjrMX-cHp6z-5Bw4dq-2Ks7bv-25Efu-oU4KD-d6pbr-5wy2ew-6dBkZr-7pKsHf-4Fhork-bQZinc-idZkJ">Nicole Salow</a>, <a class="license" href="http://creativecommons.org/licenses/by-nc-nd/4.0/">CC BY-NC-ND</a></span></figcaption></figure><p>Imagine being dismissed from your job without being told of the reasons why and without being provided with any evidence of wrongdoing. This Kafka-esque scenario feels like a tale from decades ago and deep behind the iron curtain – but it is happening in Britain, right now. In fact, it is happening more and more. </p>
<p>One recent claim for discrimination and unfair dismissal helps illuminate the story. <a href="https://www.judiciary.gov.uk/judgments/kiani-v-the-secretary-of-state-for-the-home-department">It failed after a seven year legal action</a>.</p>
<p>Afzaal Ahmad Kiani, was suspended from duty as an immigration officer at the Home Office in 2008 pending a review of his security vetting status. He was later dismissed on the basis that he no longer met the requirements set out in government vetting policy. However, no substantial explanation for this has ever been revealed. </p>
<p>Because national security implications were raised, evidence can lawfully be withheld and proceedings can be held in secret, that is, without the presence of the person or their legal representatives. This is known as “closed material procedure”. This is a mechanism for dealing with cases where a government body asserts that information is too sensitive to disclose. Rather than a rarity, this aspect of the British legal system is becoming a recurring theme. </p>
<h2>The legal framework</h2>
<p>Since 1997, more than 15 pieces of legislation have been passed <a href="http://www.justice.gov.uk/courts/procedure-rules/civil/">which enable this to happen</a> covering areas including parole board hearings, bail hearings, inquests, asset freezing cases and cases heard before The Special Immigration Appeals Commission. The <a href="http://www.legislation.gov.uk/ukpga/2013/18/contents/enacted">Justice and Security Act 2013</a> extended this practice to general civil proceedings. </p>
<p>And amendments to the <a href="http://www.legislation.gov.uk/uksi/2013/1237/schedule/1/made">Employment Tribunals Act 1996</a> have provided a statutory framework for “secret” employment tribunals. So this would apply to you if you were working in a passport office in Portsmouth, a job centre in Slough, or indeed any civil service role.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/107174/original/image-20160104-28969-lxi0t5.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/107174/original/image-20160104-28969-lxi0t5.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/107174/original/image-20160104-28969-lxi0t5.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=338&fit=crop&dpr=1 600w, https://images.theconversation.com/files/107174/original/image-20160104-28969-lxi0t5.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=338&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/107174/original/image-20160104-28969-lxi0t5.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=338&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/107174/original/image-20160104-28969-lxi0t5.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=424&fit=crop&dpr=1 754w, https://images.theconversation.com/files/107174/original/image-20160104-28969-lxi0t5.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=424&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/107174/original/image-20160104-28969-lxi0t5.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=424&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">The judiciary had been leaning towards leniency.</span>
<span class="attribution"><a class="source" href="https://www.flickr.com/photos/stvphotos/9011398158/in/photolist-hMsTab-hMsnyB-Mab43-rUVAAh-Mahq8-ex5gu-9XmTk-9XmTs-ex4Np-9Xn4h-9XmTu-9XmTw-9XmTp-ex5sk-ex53C-ex4B5-ex4pb-ex4fc-MaEKe-MaE66-Maijn-Mazdu-74KxRe-9oi2Ey-8NvxCd-eJiLHL-p1WdHN-2eFC6-86khpe-5wYtoX-6bN59-fPpgtY-bEiVmu-2eQ2c-biZkKX-2fcKw9-2f8haK-2f7M4H-2fcLZj-6L3w1v-89zb7A-2Dd5pm">STV Photos</a>, <a class="license" href="http://creativecommons.org/licenses/by-nc-nd/4.0/">CC BY-NC-ND</a></span>
</figcaption>
</figure>
<p>The concession to a worker who might find themselves facing such a tribunal comes with the special advocate, a government appointed lawyer who represents the person’s interests in relation to material that is kept secret from that person. However, the special advocate cannot communicate to that person or their legal representatives any details of that material, nor can they take instructions with regard to the nature of the material. Hence there is no opportunity to question the validity of any of the information or offer a defence against any allegations of wrongdoing.</p>
<p>Clearly, these procedures raise issues of principles of fundamental concerns such as the right to a fair hearing provided <a href="http://www.equalityhumanrights.com/sites/default/files/documents/humanrights/hrr_article_6.pdf">under the European Convention of Human Rights</a>, and <a href="http://www.eurofound.europa.eu/observatories/eurwork/comparative-information/overview-of-the-implementation-of-the-framework-equal">equal treatment directives under EU law</a>. Numerous legal challenges have been raised. </p>
<h2>Getting the gist</h2>
<p><a href="http://www.publications.parliament.uk/pa/ld200809/ldjudgmt/jd090610/af-1.htm">In a 2009 case</a> it was held that the right to a fair hearing under the Convention would not be violated providing that at least a minimum amount of information regarding allegations was made available. This has become known as “gisting” in legal circles and although <a href="http://www.employmentcasesupdate.co.uk/site.aspx?i=ed8773">a 2011 case</a> deemed that this protection was not an absolute requirement, it appeared that the judiciary favoured at least a modicum of fairness. </p>
<p><a href="http://curia.europa.eu/jcms/upload/docs/application/pdf/2013-06/cp130070en.pdf">In a case from 2013</a> it was ruled by the European Court of Justice that in the interest of procedural fairness, the essence of the allegations should be provided. Further, national courts should strike a balance between the right to effective judicial protection guaranteed by the Charter of Fundamental Rights under EU law and the requirements of state security. Hence some inroads in the interests of fundamental fairness, albeit marginal, were achieved.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/107175/original/image-20160104-28997-n0zf7o.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/107175/original/image-20160104-28997-n0zf7o.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/107175/original/image-20160104-28997-n0zf7o.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=407&fit=crop&dpr=1 600w, https://images.theconversation.com/files/107175/original/image-20160104-28997-n0zf7o.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=407&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/107175/original/image-20160104-28997-n0zf7o.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=407&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/107175/original/image-20160104-28997-n0zf7o.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=512&fit=crop&dpr=1 754w, https://images.theconversation.com/files/107175/original/image-20160104-28997-n0zf7o.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=512&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/107175/original/image-20160104-28997-n0zf7o.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=512&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Not at liberty to say…</span>
<span class="attribution"><a class="source" href="https://www.flickr.com/photos/81952353@N08/7501604936/in/photolist-cqTFN9-46pNk8-apYuGP-6reqf2-8FKJg2-fL3HGq-4DgrrU-7HfPF-7HfPG-9z5Fp5-ykFr8i-6PEME5-6MtL5q-c57o9b-dcknz7-6xSvnA-c3Ktch-7prkJu-c3KAXq-y7uKQ2-3HvQHS-fqVcrv-4iqpA7-6hCMDg-CYoQc-5BBJF8-e7WR73-dvdGDt-dvjkej-dvdc1p-dvdbUT-dvdKn6-dviLQS-dvdbNF-dvdGNv-o9HnYk-nY5gDG-ohkFbZ-hu9Bja-dvjhHQ-dvdbJ6-dviM5o-dviLMW-dv4s7Q-dvjhFd-dviM2G-dvdbX6-dvdKr8-dviLQG-dvjkbE">Mr.Kitsadakron Pongha</a>, <a class="license" href="http://creativecommons.org/licenses/by-nc-nd/4.0/">CC BY-NC-ND</a></span>
</figcaption>
</figure>
<p>A deeply concerning issue of the Kiani case is that he was not allowed even the “gist” of the case against him. The court of appeal ruled that there is a distinction between interference with free movement or deprivation of liberty cases, and employment rights. Thus in the context of employment tribunals, even a minimum amount of information does not need to be provided and the court’s duty to balance competing interests of state security and a fair hearing is satisfied by the special advocate system.</p>
<p>In other words, if you’re up before an employment tribunal and it is decided the information may be sensitive, then you might not even get the “gist” of allegations if your liberty is not at stake. </p>
<h2>Desperately seeking fairness</h2>
<p>This case denotes a disturbing twist in the tale. It seems that judicial inclination (as evidenced in the 2009 case above) to reason and interpret in favour of softening the sledgehammer effect of “closed material” procedures has taken a U-turn. </p>
<p>What’s more, faith in the special advocate system may be misplaced. The role of the special advocate is limited. Communication with the individual or their representative with regard to undisclosed material is forbidden. Therefore the truth of any allegations cannot be questioned.</p>
<p>It is noteworthy that in the same year as the closed material procedure was extended to include employment tribunals, a significant number of special advocates <a href="http://www.publications.parliament.uk/pa/jt200607/jtselect/jtrights/157/15709.htm">resigned in protest</a> at the prohibition of communication with the person in question. This inherently interferes with their function of protecting their interests and highlights the unfairness of the system. The implications for the future of the fairness of such employment tribunals are ominous. </p>
<p>Shazia Khan of Bindmans LLP who represented Kiani condemned the practice as discriminatory and <a href="http://www.bindmans.com/news-and-events/news-article/Court-of-appeal-refused-to-order-gisting-of-evidence">emphasised the devastating effect</a> that this seven-year battle has had on her client. She has also warned against the possibility of an increase in the frequency of invoking the “closed material procedures” given the acute lack of transparency or fairness.</p>
<p>It is disquieting to reflect that this may denote an increased propensity to invoke “secret” procedures in the name of expediency. Where once the judiciary expressed a willingness to defy the most draconian aspects and guarantee at least a kernel of hope, in this case that prospect has been abandoned.</p><img src="https://counter.theconversation.com/content/50624/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Gilliane Williams does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Sacked from your job and never told why. Is this the new normal for some workers in Britain?Gilliane Williams, Senior Lecturer in Law, University of BrightonLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/506222015-12-07T13:12:22Z2015-12-07T13:12:22ZThe false economy of giving sloppy legal advice to asylum seekers<figure><img src="https://images.theconversation.com/files/104440/original/image-20151204-11669-176xfsv.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Bringing the hammer down. How the legal system fails the world's most vulnerable people.</span> <span class="attribution"><a class="source" href="https://www.flickr.com/photos/124387535@N03/14135683605/in/photolist-nx85fR-63UDyk-bkUna-52Zvuz-5RYbLJ-e6yiVM-63UDLR-68qMei-5RTLRR-xx9XSo-tiNzYh-7UToH-7u8DRu-5RTQnV-9U4rk9-HWypm-yypfH4-9U4rkf-5RYbhG-7u8E5L-AuHb5-5RYccQ-noHAcL-aqCiHc-yxEzjx-nDawJJ-nF18m3-5RTQSc-5RY2fw-5RTJbv-5RY52U-5RTRU2-5RTPmD-5RTHvB-5RY3BQ-5RXZBs-5RXWFY-m9ZwmU-9yMgp1-qFWfZB-6TpduJ-5nGuBR-ncMHdf-7AkMiF-f74wXT-exBsHh-4VLPuN-a61Zef-74WJEc-miNAZF">Tori Rector</a>, <a class="license" href="http://creativecommons.org/licenses/by-sa/4.0/">CC BY-SA</a></span></figcaption></figure><p>Picture this: in another country, where you don’t speak the language, you’re questioned with the aid of an interpreter. The authorities expect you to remember distant dates, details of what people did. They ask you the same question over and over, then say you’ve answered differently on two occasions, which proves you’re lying. </p>
<p>You suggest that there’s a misunderstanding; the interpreter might have made a mistake. That, they tell you, is further proof that you’re a liar, trying to blame the interpreter for the fact that you can’t keep your story straight. You have a right of appeal, but your legal advisor explains nothing, asks nothing and eventually tells you that there’s nothing more they can do for you.</p>
<p>This is the scenario faced by some people seeking asylum in the UK. These individuals desperately need good quality legal advice to counter <a href="http://www.asylumaid.org.uk/wp-content/uploads/2013/02/unsustainableweb.pdf">poor quality</a> <a href="http://www.asylumaid.org.uk/right-first-time-4/">decision making</a> in the Home Office – but they’re not all getting it. I have witnessed all of the above in Home Office refusal letters and in Immigration and Asylum Tribunal hearings. </p>
<h2>“Sloppy” work</h2>
<p>In my opinion, some people are forced to return to their home country, where they fear persecution, or forced into destitution or indefinite detention in the UK because they received inadequate legal representation. A <a href="http://www.legalfutures.co.uk/latest-news/sra-investigate-asylum-advice-judges-overturn-convictions">long-awaited report</a> on the quality of asylum legal advice is due for publication within weeks and is expected to shed light on some of the risks, failings and best practices in asylum representation.</p>
<p>Concerns have already been raised that people seeking asylum were suffering as a result of a complex asylum system and sometimes “<a href="http://www.legalfutures.co.uk/latest-news/the-legal-lot-asylum-seeker-complex-system-hard-to-find-lawyers-sloppy-advice">sloppy</a>” legal advice. Legal regulators were <a href="http://www.legalfutures.co.uk/latest-news/sra-bsb-told-improve-regulation-immigration-lawyers-risk-losing-powers">warned to improve oversight</a> and <a href="http://www.legalfutures.co.uk/latest-news/sra-investigating-nine-law-firms-asylum-advice-failures">research has been undertaken</a> in an effort to improve legal advice by solicitors. However, given the existing regulation, government accreditation exams and requirements of the Legal Aid Agency, clearly the problem is not a straightforward lack of regulation or oversight.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/104442/original/image-20151204-29716-h5lbzd.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/104442/original/image-20151204-29716-h5lbzd.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/104442/original/image-20151204-29716-h5lbzd.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=293&fit=crop&dpr=1 600w, https://images.theconversation.com/files/104442/original/image-20151204-29716-h5lbzd.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=293&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/104442/original/image-20151204-29716-h5lbzd.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=293&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/104442/original/image-20151204-29716-h5lbzd.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=368&fit=crop&dpr=1 754w, https://images.theconversation.com/files/104442/original/image-20151204-29716-h5lbzd.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=368&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/104442/original/image-20151204-29716-h5lbzd.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=368&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">End of a long journey. Start of a new one.</span>
<span class="attribution"><a class="source" href="https://www.flickr.com/photos/dfmagazine/19863662131/in/photolist-wghsHi-aPGN14-6ZSyQU-6v1Deb-bHpJc6-vetPtU-6u8K71-xtrY47-nEVMtd-7wCHr-6un73R-6WVVUU-pzcs3C-5bjrDL-32eo27-ga6i8N-cVjcAf-6un73T-nEVKSN-s6cMSN-buuUtu-dT26bo-bD3Po3-6tY4vW-7Ndzx-uoYiCQ-6ocVTY-vsNrqP-329MpH-sp9J9g-6tY4vJ-qpLArh-nEhFgh-rJNm4g-fAtoq9-5bjqPC-bD3NV9-fAtogW-rJNHKn-fAtowj-5bjr4m-wc2A17-sFqhcG-5bjqr7-bD3QaN-nEipmB-zcktPu-35K3t4-tbr1pf-5bjrL1">Irish Defence Forces</a>, <a class="license" href="http://creativecommons.org/licenses/by/4.0/">CC BY</a></span>
</figcaption>
</figure>
<p>Lawyers are no more popular than asylum-seekers in public opinion and the government’s response is to blame lazy “<a href="http://leftfootforward.org/2015/08/why-lawyers-are-taking-on-the-government/">fat-cat</a>” lawyers on a “<a href="http://www.marilynstowe.co.uk/2015/03/26/was-there-ever-a-legal-aid-gravy-train-by-john-bolch/">legal aid gravy train</a>”. Numerous committed lawyers are providing high quality representation on tiny budgets as low as <a href="http://www.ilpa.org.uk/data/resources/4125/11.02.506.pdf">£19.50 per hour</a>, charged to the firm, not the employee. There are <a href="http://www.lawcentres.org.uk/policy/news/news/keep-children-s-best-interests-at-heart-of-asylum-system-new-report">concerns</a> that the legal aid contract obstructs good quality work, even <a href="http://www.legalservicesconsumerpanel.org.uk/ourwork/vulnerableconsumers/2012%2010%2010%20Immigration%20desk%20research%20and%20scoping%20final.pdf">encourages poor work</a>. </p>
<h2>Cutting costs, cutting corners</h2>
<p>So what would constitute good practice? Preparing a detailed statement from the client; taking time to reassure them so they feel able to disclose all aspects of their experiences including rape or torture; obtaining expert reports on scarring, trauma or the legal position in the home country; reading through lengthy interview records to check for accuracy; giving the client information about what to expect. All of this takes much longer than the Legal Aid Agency will pay for on the <a href="http://www.biduk.org/sites/default/files/Cost%20of%20Quality%20Legal%20Advice%20Refugee%20Interviews_2010_0.pdf">fixed fee</a>. In the end it is a false economy. Money is spent on unnecessary appeals, periods of detention in immigration removal centres and enforced removal. </p>
<p><a href="https://www.brighton.ac.uk/crome/research-projects/minas-unaccompanied-minors-rights.aspx">My research</a> on unaccompanied children identified similar issues, with a wide variation in quality. Some good advisors (as identified by social work and NGO interviewees) said they spent as much time fighting to obtain funding to prepare a case properly as they did fighting the Home Office over the actual decision. </p>
<p>More worryingly, others spend an hour signing up the client as a new case and do little, if any, other work until asylum is refused. One solicitor told me that this was a practice at her previous firm and this was borne out by some of the files I have reviewed for the upcoming report. The peer review data of her ex-firm’s work was “awful”, she said, but no different from the other firms remaining open in the area. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/104444/original/image-20151204-14451-1jnj40g.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/104444/original/image-20151204-14451-1jnj40g.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/104444/original/image-20151204-14451-1jnj40g.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=450&fit=crop&dpr=1 600w, https://images.theconversation.com/files/104444/original/image-20151204-14451-1jnj40g.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=450&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/104444/original/image-20151204-14451-1jnj40g.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=450&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/104444/original/image-20151204-14451-1jnj40g.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=566&fit=crop&dpr=1 754w, https://images.theconversation.com/files/104444/original/image-20151204-14451-1jnj40g.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=566&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/104444/original/image-20151204-14451-1jnj40g.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=566&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Hanging on for justice.</span>
<span class="attribution"><a class="source" href="https://www.flickr.com/photos/mikecogh/8035396680/in/photolist-df4vu5-4iSxJx-9GRTWj-6DWwa-eA35G6-oPBbqR-wvDsYM-6retdP-pBJrAy-qivJsd-3qhgd-bAKSzh-3U2cie-rLrCpW-byYC6j-o5U1kT-efcaaX-qhaix-5ej6LS-bUjXg2-dt1An7-4Cw3qi-4ZagF8-7ZBk7j-oEuNBg-7z8r6E-pzapoW-iTyNBV-pkBZ7S-4a9Mp8-oFMLsD-4adQT6-2axjx-2VGxA-regT1e-fkrbj-ux5Gf3-gn4Byh-5DArcD-qde4b4-df4Dik-rehf2g-xbpJr-jovdNA-6bU53A-ut1vwE-4voYqR-z9P2th-dTuHLy-f9PfKH">Michael Coghlan</a>, <a class="license" href="http://creativecommons.org/licenses/by-sa/4.0/">CC BY-SA</a></span>
</figcaption>
</figure>
<p>The Legal Aid Agency has shown little inclination to distinguish between these organisations, so that some clients are compelled to go to poor quality firms or manage by themselves. Legal aid cuts have driven multiple organisations <a href="http://www.lawgazette.co.uk/news/tempers-fray-as-last-manchester-law-centre-closes/5043599.fullarticle">out of business</a>.</p>
<h2>Grievance procedure</h2>
<p>One <a href="http://www.legalombudsman.org.uk/portfolio-category/case-summaries/about-immigration-and-asylum/">particular concern</a> has been the low level of complaints from asylum seekers. But it’s no surprise. </p>
<p>Would-be complainants must first understand the complaints procedure, then feel confident enough to explain that their representation is not good enough to the firm on whom their case still depends. They must then wait eight weeks for a response before contacting the ombudsman if they’re still dissatisfied. This process can drag on, alongside their own asylum appeal process. </p>
<p>They may be detained, which happens to <a href="http://migrationobservatory.ox.ac.uk/briefings/immigration-detention-uk">around 30,000</a> migrants a year, though not all asylum-seekers. They may also be removed from the country, which happened to <a href="http://www.bbc.co.uk/news/magazine-33849593">6,788 in 2014</a>. Or they may end up struggling to survive on the streets – some <a href="http://www.theguardian.com/society/2015/aug/19/families-seeking-asylum-face-destitution-under-new-rules">5,000 were assisted by the British Red Cross in 2014</a>. </p>
<p>Poor quality decision making, combined with poor quality representation, leads to people’s asylum applications being refused and their appeals dismissed. Those people are classed as “failed” or “bogus” asylum-seekers. The assumption that they lied fuels harsh debate and harsh policy aimed at deterring asylum-seekers, and makes it harder for those that get here to prove what has happened to them. People who genuinely are at risk of torture in their home countries end up destitute on the streets, detained indefinitely or returned to their countries of origin. We should all care.</p><img src="https://counter.theconversation.com/content/50622/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Jo Wilding was the legal advisor to the Quality of Asylum Legal Advice project.</span></em></p>The British legal system is skewing the odds against some of the most vulnerable refugees.Jo Wilding, Research Fellow, University of BrightonLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/394632015-03-31T03:30:47Z2015-03-31T03:30:47ZReversing legal aid cuts isn’t enough to ensure access to justice<figure><img src="https://images.theconversation.com/files/76509/original/image-20150331-1256-1f2ptxe.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Differences in personal resources and capabilities mean that the most vulnerable Australians find the legal system inaccessible.</span> <span class="attribution"><span class="source">AAP/April Fonti</span></span></figcaption></figure><p>The Abbott government cleared another <a href="http://www.smh.com.au/federal-politics/political-news/another-barnacle-removed-abbott-governments-planned-cuts-to-legal-aid-services-now-reversed-20150326-1m88dx.html">“barnacle”</a> last week when it <a href="http://www.attorneygeneral.gov.au/Mediareleases/Pages/2015/FirstQuarter/26-March-2015-Legal-aid-funding-assured-to-support-the-most-vulnerable-in-our-community.aspx">announced</a> that proposed cuts to legal assistance services would not be going ahead. The <a href="http://www.themonthly.com.au/the-monthly-today/russell-marks/2015/27/2015/1427419957/why-was-government-policy">inexplicable decision</a> to withdraw this funding jarred with the government’s new and growing <a href="http://www.pm.gov.au/media/2015-03-04/national-awareness-campaign-reduce-violence-against-women-and-children">commitment</a> to eradicating family violence. It is a sensible decision.</p>
<p>However, the demand for government-funded legal services is large and growing. Simply “not cutting” these services does the community a grave disservice. More must be done.</p>
<h2>Need for legal assistance</h2>
<p>In December 2014, the Productivity Commission’s access to justice inquiry released its <a href="http://www.pc.gov.au/inquiries/completed/access-justice/report">final report</a>. It found that:</p>
<blockquote>
<p>Disadvantaged people face a number of barriers in accessing the civil justice system, which make them both more susceptible to, and less equipped to deal with, legal disputes. If left unresolved, civil problems can have a big impact on the lives of the most disadvantaged. The Commission was given many examples of simple problems spiralling into complex problems when legal assistance was not provided. Unmet civil problems can also escalate into criminal matters.</p>
</blockquote>
<p>Differences in personal resources and capabilities mean that the most vulnerable Australians find the legal system inaccessible. There is a role for government in assisting these individuals to uphold their legal rights and resolve their civil (including family) law disputes.</p>
<p>Ensuring that laws are fair and processes are as simple as possible are key ways that governments can deliver justice, along with providing financial support for non-government agencies to provide <a href="http://theconversation.com/www.naclc.org.au/postcode_search.php">advice and assistance</a> to the many clients who have legal problems and can’t get help. </p>
<p>This should extend to promoting <a href="http://www.naclc.org.au/cle_database.php">community understanding of legal issues</a>, and <a href="http://pc.gov.au/__data/assets/pdf_file/0006/137877/subdr301-access-justice.pdf">actively engaging</a> with policymakers. But recent <a href="http://www.theguardian.com/commentisfree/2014/jun/27/last-chance-to-be-heard-for-law-services-fighting-to-protect-the-most-vulnerable?CMP=twt_gu">funding restrictions</a> reduce this important work.</p>
<h2>The cuts, the backflip, the impact</h2>
<p>Days before the 2013 election, the Coalition <a href="http://www.canberratimes.com.au/federal-politics/federal-election-2013/jail-risk-higher-for-indigenous-under-coalition-tenure-20130906-2tau9.html">announced</a> that it would cut A$43 million from Indigenous legal services across Australia. These cuts purportedly targeted law reform and advocacy activities and wouldn’t impact frontline services. However, these agencies spent about 1% of this funding on specialist policy and law reform roles.</p>
<p>In December 2013, the government <a href="http://www.theaustralian.com.au/national-affairs/indigenous/coalition-scales-back-cuts-to-legal-aid/story-fn9hm1pm-1226784449022">confirmed</a> that the cuts would amount to $42 million over four years, but would cover non-Indigenous services as well – stretching to legal aid and community legal centres. </p>
<p>Again, there was a pretence that these funding cuts would not impact frontline services. But in Queensland, for example, these cuts would actually affect:</p>
<ul>
<li><p>consumer law services in Cairns, helping people that have been the subject of predatory and unlawful business practices;</p></li>
<li><p>specialist legal services for tenants who are facing eviction across Queensland;</p></li>
<li><p>a specialist family law outreach service in Coomera;</p></li>
<li><p>help for the Inala community to access general legal help, from an organisation that recently had to relocate after its premises were condemned;</p></li>
<li><p>family law services on the Sunshine Coast and in Townsville, helping people when their relationships end;</p></li>
<li><p>state-wide advice and casework support for people who have disputes with Centrelink; and</p></li>
<li><p>duty lawyer and outreach services at the Southport Magistrates’ Court when it hears family violence applications.</p></li>
</ul>
<p>The government asserted that the cuts would not impact frontline services – and were only focused on law reform, which shouldn’t be funded when there is a budget “crisis”. But the pressure was being applied to frontline agencies, which were <a href="http://www.canberratimes.com.au/federal-politics/political-news/aboriginal-legal-services-call-on-federal-government-to-reverse-funding-cuts-20150325-1m7j9u.html">starting</a> to cut staff and services. </p>
<p>As these cuts were starting to bite, the Abbott government soon realised that its decision to cut funding conflicted with its commitment to services and strategies to stop family violence. It used this context when <a href="http://www.attorneygeneral.gov.au/Mediareleases/Pages/2015/FirstQuarter/26-March-2015-Legal-aid-funding-assured-to-support-the-most-vulnerable-in-our-community.aspx">announcing</a> its backflip:</p>
<blockquote>
<p>For too many years, the issue of domestic violence remained behind closed doors – a stigmatised problem that victims were reluctant to speak about. Sadly, as a nation we were reluctant or afraid to speak about it.</p>
<p>With more victims speaking out about this scourge and seeking help to escape such violence, we are responding accordingly with appropriate resourcing. The government has listened and is acting in the interests of the most vulnerable in our community including Indigenous Australians.</p>
</blockquote>
<h2>More change (and money) is needed</h2>
<p>While reversing cuts is a necessary start, it is also vital that more funding be provided for legal assistance services. The <a href="http://www.pc.gov.au/">Productivity Commission</a> called for an <a href="http://www.theage.com.au/federal-politics/political-news/australian-legal-aid-services-need-200-million-more-a-year--productivity-commission-20141203-11zff7.html">additional A$200 million</a> for legal assistance services to disadvantaged Australians, who are “more susceptible to, and less equipped to deal with, legal disputes”. </p>
<p>In justifying its unusual call for this significant funding injection, the commission’s report found:</p>
<blockquote>
<p>… numerous studies show that efficient government-funded legal services generate net benefit to the community.</p>
</blockquote>
<p>As I have previously <a href="https://theconversation.com/extra-funding-for-legal-assistance-services-should-only-be-a-start-34843">written</a>, the commission made other sensible suggestions. These included:</p>
<ul>
<li><p><a href="http://affordingjustice.com.au/legal-task-help/">“unbundling”</a> legal services;</p></li>
<li><p>better co-ordinating pro bono services, recognising that these contribute less than 3% of legal assistance services required;</p></li>
<li><p>investigating the appropriateness and effectiveness of <a href="http://www.ag.gov.au/FamiliesAndMarriage/Families/FamilyDisputeResolution/Pages/default.aspx">family dispute resolution</a> schemes;</p></li>
<li><p>funding <a href="http://www.abc.net.au/radionational/programs/breakfast/boost-legal-aid-productivity-commission/5940102">strategic advocacy and law reform</a> activities that seek to identify and remedy systemic issues and so reduce demand for frontline services;</p></li>
<li><p>making eligibility principles for grants of legal aid consistent; and</p></li>
<li><p>improving the collection and communication of data and evaluation.</p></li>
</ul>
<p>The government is currently consulting stakeholders on reforming the legal assistance services industry. It has an entirely <a href="http://www.lawyersweekly.com.au/news/16273-timeline-for-legal-assistance-reforms-impossible">unrealistic target</a> of implementing these changes by July this year. These changes will require new agreements to be negotiated with all states and territories and more than 200 service providers in seven weeks after the budget.</p>
<p>Rather than rushing implementation, the government should partner with service providers and other stakeholders to develop changes that are evidence-based, transparent and effective, and commit to properly resourcing this important work.</p><img src="https://counter.theconversation.com/content/39463/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>James Farrell OAM is the director of the Queensland Association of Independent Legal Services, and chairperson of the Queensland Legal Assistance Forum.</span></em></p>The demand for government-funded legal services is large and growing. Simply “not cutting” these services does the community a grave disservice.James Farrell, Lecturer in Law, Deakin UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/371402015-02-06T06:31:08Z2015-02-06T06:31:08ZIn defence of the European Convention on Human Rights<p>It is bitterly ironic that in this, the 800th anniversary year of Magna Carta, there are <a href="http://www.theguardian.com/politics/2014/oct/03/conservatives-ignore-european-court-human-rights-rulings">threats from the UK</a> to withdraw from the <a href="http://www.echr.coe.int/Documents/Convention_ENG.pdf">European Convention on Human Rights</a>. This convention is Europe’s own Magna Carta – it provides every citizen with the option of challenging their leader.</p>
<p>The sealing of Magna Carta in 1215 marked the first time that a ruler became accountable to at least some of his people. No longer was there the possibility of a ruler only being accountable to the divine.</p>
<p>The European Convention on Human Rights took accountability to the next level by accepting that even democratic states are not infallible. A safety net is needed to ensure that fundamental human rights do not slip through to the detriment of the people.</p>
<p>Magna Carta is beautifully depicted on the golden doors of the United States Supreme Court and recognised as leading to the American Bill of Rights. In the same way, even Conservatives – who originally lobbied for the European convention – saw Magna Carta as the starting point for a regional human rights treaty.</p>
<p>This is the reason that, contrary to much contemporary grandstanding, the UK and the European Court of Human Rights have a long tradition of seeing eye to eye more than they disagree.</p>
<p>In fact, the vast majority of cases brought against the UK in the European Court fail – a fact that is rarely cited in critical calls for withdrawal. If the UK, or any state, were to win every case, the European Court of Human Rights would not be fit for purpose.</p>
<p>The European Convention on Human Rights is very much taken for granted in the UK but without it, people in Northern Ireland would be imprisoned for homosexuality; prisoners would not have access to lawyers and newspapers would be subject to gagging orders for commenting on civil cases like the <a href="http://www.theguardian.com/society/2014/nov/14/-sp-thalidomide-pill-how-evaded-justice">Thalidomide case</a>. These are rights that no democratic state in the 21st century would like to be without.</p>
<p>In these days of complexity and austerity, bringing a case to Strasbourg is a simple procedure. And once cases have been heard in British courts, it is also cheap. As <a href="https://theconversation.com/cuts-to-criminal-legal-aid-will-turn-defendants-into-products-21666">legal aid</a> is cut more and more for the people that need it most, the European Court of Human Rights becomes even more important because there is no cost. Even if an applicant loses, they bear no financial penalty.</p>
<p>The European Court of Human Rights has been portrayed as a rapacious institution greedily grabbing cases from the UK courts. Nothing could be further from the truth. Rather than wanting to attract cases, the court would prefer cases to be satisfactorily decided in individual countries, applying the European Convention in their courts.</p>
<p>It takes extra time to seek justice in Strasbourg. No one wants a repetition of the <a href="http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-57496#%7B%22itemid%22:%5B%22001-57496">Golder case</a> where, although Mr Golder won, judgement was delivered a day after he died. The European court only wants to be a court of last resort, but it is essential that it retains this role of safety net for those of us in the UK.</p>
<p>It is not even that the European court is entrenched in archaic tradition. It has cooperated with governments when they have demanded changes that do not affect its essential independence. In response to criticism, the court <a href="http://www.law.qmul.ac.uk/events/items/125715.html">transformed itself</a> from a part-time to a full-time operation and has streamlined its admissibility criteria.</p>
<p>It is also rarely acknowledged that it is in a government’s self-interest that the UK remain party to the European convention. The European convention serves as a valuable shield, diverting criticism away from the government of the day, whatever its political persuasion happens to be.</p>
<p>For all these reasons, celebrating Magna Carta while seeking to deny its European legacy would be like withdrawing from the Ashes – throwing a tantrum because we sometimes lose.</p><img src="https://counter.theconversation.com/content/37140/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Geraldine Van Bueren does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>It is bitterly ironic that in this, the 800th anniversary year of Magna Carta, there are threats from the UK to withdraw from the European Convention on Human Rights. This convention is Europe’s own Magna…Geraldine Van Bueren, Professor of International Human Rights Law, Queen Mary University of LondonLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/348432014-12-08T04:08:29Z2014-12-08T04:08:29ZExtra funding for legal assistance services should only be a start<figure><img src="https://images.theconversation.com/files/66482/original/image-20141207-8645-kxo27e.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">The Productivity Commission rightly identified widespread concerns that Australia’s civil justice system is too slow, too expensive and too adversarial.</span> <span class="attribution"><span class="source">shutterstock</span></span></figcaption></figure><p>The <a href="http://www.pc.gov.au">Productivity Commission</a> raised a <a href="http://www.theaustralian.com.au/business/legal-affairs/productivity-commission-wants-more-money-for-legal-aid/story-e6frg97x-1227144007496">few eyebrows</a> when it called for an <a href="http://www.theage.com.au/federal-politics/political-news/australian-legal-aid-services-need-200-million-more-a-year--productivity-commission-20141203-11zff7.html">additional A$200 million</a> for legal assistance services to disadvantaged Australians, who are “more susceptible to, and less equipped to deal with, legal disputes”.</p>
<p>In justifying its unusual call for this significant funding injection, the commission’s report, which was tabled in parliament last week, found:</p>
<blockquote>
<p>… numerous studies show that efficient government-funded legal services generate net benefit to the community.</p>
</blockquote>
<p>Behind this headline call is a detailed <a href="http://www.pc.gov.au/inquiries/completed/access-justice/report">final report</a> of more than 1000 pages. It makes 83 recommendations to improve access to justice in Australia. </p>
<h2>Why change is needed</h2>
<p>In its <a href="http://www.pc.gov.au/inquiries/completed/access-justice/draft">draft report</a>, the Productivity Commission found that <a href="http://www.lawfoundation.net.au/ljf/app/&id=FC6F890AA7D0835ACA257A90008300DB">half of all Australians</a> will experience a legal problem this year. Most won’t get legal assistance or come into contact with our courts or other legal institutions. </p>
<p>In part, this is because Australia’s legal system is <a href="https://theconversation.com/slow-expensive-complicated-legal-system-must-be-improved-25382">“too slow, expensive and hard to understand”</a>.</p>
<p>As the commission concludes:</p>
<blockquote>
<p>The ability of individuals to enforce their rights can have profound impacts on a person’s well-being and quality of life … a well-functioning civil justice system serves more than just private interests – it promotes social order, and communicates and reinforces civic values and norms … There can also be fiscal benefits. </p>
<p>Prompt, affordable and well understood dispute resolution arrangements can help avoid issues escalating into more serious problems that can place burdens on health, child protection and other community welfare services.</p>
</blockquote>
<h2>An economist’s perspective</h2>
<p>Importantly, the Productivity Commission has brought an independent, economic analysis to the <a href="http://shop.americanbar.org/eBus/Store/ProductDetails.aspx?productId=213017">archaic</a> practice of law. </p>
<p>As US legal academic Edgar Bodenheimer <a href="http://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=3838&context=ilj">observed</a> almost 70 years ago, the legal profession has long been:</p>
<blockquote>
<p>… criticised for being behind the times, for opposing progress and change, and for clinging to the legal traditions of ages long past. </p>
</blockquote>
<p>Without this baggage and a need to defer to the profession’s “sacred cows”, the Productivity Commission’s pro-market analysis is novel and has resulted in useful recommendations. These include:</p>
<ul>
<li>ensuring legal complaint bodies can discipline lawyers for high-cost or low-quality services;</li>
<li>reviewing the <a href="http://www.cald.asn.au/slia/legal_education.php">three stages of legal education</a> (university, practical legal training and continuing professional development);</li>
<li>removing advertising bans and restrictions on <a href="http://www.clmr.unsw.edu.au/article/deterrence/court-cases/regulation-third-party-litigation-funding-australia">litigation funding</a>;</li>
<li>reviewing <a href="http://www.lsb.vic.gov.au/legal-profession/working-under-the-act/professional-indemnity-insurance/">professional indemnity insurance</a> arrangements and <a href="http://blogs.unimelb.edu.au/opinionsonhigh/2013/08/16/bant-gillespie-jones/">trust account</a> regulations; and</li>
<li>investigating a new limited licence for family law.</li>
</ul>
<p>It is unlikely that a review undertaken by lawyers would have reached these same conclusions. This justifies the government’s decision to refer the inquiry to the Productivity Commission.</p>
<h2>Legal services for disadvantaged people</h2>
<p>It is fair to say that market principles are unlikely to resolve the legal problems of the most marginalised and disadvantaged people in the community. As the commission found:</p>
<blockquote>
<p>Disadvantaged people face a number of barriers in accessing the civil justice system, which make them both more susceptible to, and less equipped to deal with, legal disputes. If left unresolved, civil problems can have a big impact on the lives of the most disadvantaged. The Commission was given many examples of simple problems spiralling into complex problems when legal assistance was not provided. Unmet civil problems can also escalate into criminal matters.</p>
</blockquote>
<p>Notwithstanding the proposed reforms, differences in personal resources and capabilities mean that the most vulnerable Australians may still find the system inaccessible. There remains a role for government in assisting these individuals to uphold their legal rights and resolve their civil (including family) law disputes. </p>
<p>It is in this area that the Productivity Commission recommended an additional $200 million annual funding from the Commonwealth, states and territories. It made other sensible suggestions, including:</p>
<ul>
<li><a href="http://affordingjustice.com.au/legal-task-help/">“unbundling”</a> legal services;</li>
<li>better co-ordinating pro bono services, recognising that these contribute less than 3% of legal assistance services required;</li>
<li>investigating the appropriateness and effectiveness of <a href="http://www.ag.gov.au/FamiliesAndMarriage/Families/FamilyDisputeResolution/Pages/default.aspx">family dispute resolution</a> schemes;</li>
<li>funding <a href="http://www.abc.net.au/radionational/programs/breakfast/boost-legal-aid-productivity-commission/5940102">strategic advocacy and law reform</a> activities that seek to identify and remedy systemic issues and so reduce demand for frontline services;</li>
<li>making eligibility principles for grants of legal aid consistent;</li>
<li><a href="http://www.abc.net.au/news/2014-12-05/indigenous-legal-aid-cuts-productivity-commission-report/5945864">reversing funding cuts</a> to Aboriginal and Torres Strait Islander legal services and ensuring continuation of Aboriginal Family Violence Legal Services; and</li>
<li>improving the collection and communication of data and evaluation.</li>
</ul>
<h2>Next steps</h2>
<p>It is difficult to argue with any of the Productivity Commission’s recommendations, although some will. There are already <a href="http://www.naclc.org.au/cb_pages/news/NACLCWelcomesProductivityCommissionReportConclusion200MillionNeededforLegalAssistanceServices.php">concerns</a> about some of the report’s findings of fact. Implementing the recommendations will require significant resourcing and goodwill from governments, service providers, funders and policymakers.</p>
<p>Co-ordinating existing services and identifying priorities will be vital. This may require agencies to initiate new services or close existing ones. However, as the commission concluded, the capacity for “finding economies” is limited, which is what led to the headline conclusion, to dramatically increase funding.</p>
<p>The Productivity Commission rightly identified widespread concerns that the civil justice system is too slow, too expensive and too adversarial. With sensible reforms, collaborative and co-operative implementation, and a significant increase in government funding, we may be able to improve Australia’s system and truly deliver access to justice.</p><img src="https://counter.theconversation.com/content/34843/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>James Farrell is the director of the Queensland Association of Independent Legal Services, treasurer of the National Association of Community Legal Centres, and chairperson of the Queensland Legal Assistance Forum.</span></em></p>The Productivity Commission raised a few eyebrows when it called for an additional A$200 million for legal assistance services to disadvantaged Australians, who are “more susceptible to, and less equipped…James Farrell, Lecturer in Law, Deakin UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/343232014-11-19T06:03:52Z2014-11-19T06:03:52ZPro bono is great education for law students, but they shouldn’t fill gap left by legal aid cuts<figure><img src="https://images.theconversation.com/files/64881/original/qp5vpp64-1416327973.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">The halls of the Royal Courts of Justice shouldn't have to throng with students.</span> <span class="attribution"><a class="source" href="https://www.flickr.com/photos/belowred/1403419919/in/photolist-391TRa-53H8yg-53HbVX-8uvx81-cqfNG7-mqEbP-nUaBJ1-448j5-73G4HS-mqEbN-mqEbW-onH4r-46xqDr-9YBgdU-bgZVLt-5dgdkU-5dniB2-9SiVgF-mqEbQ-5pEBNT-L2QQD-x7vef-sK4wy-dBjh5q-asyXpf-i7FNz-5fAH2w-4QSsPm-6iCJQ2-6iCJPR-6iCJQ6-mqEbR-mqEbU-6QQMVd-bUqbNJ-nJDF3n-9YiWra-kKPLd-4a8yHQ-gm8pon-6q2tpo-o21hHu-a3WYXW-aBweq8-a1uuNy-dBdPB6-51rJUn-bUqbK1-budmgZ-9ZpvgH">Nick Garrod</a>, <a class="license" href="http://creativecommons.org/licenses/by-nc-nd/4.0/">CC BY-NC-ND</a></span></figcaption></figure><p>Law students are doing more pro bono work than ever before. In 2014, 70% of all UK law schools now provide free legal services to individuals, groups and organisations. According to the latest <a href="http://lawworks.org.uk/index.php?cID=49&cType=news">LawWorks Law School Pro Bono and Clinic</a> report, this was up from <a href="http://www.probonogroup.org.uk/lawworks/docs/Student%20report%20Final.pdf">46% of law schools</a>in 2006 and <a href="http://lawworks.org.uk/index.php?cID=10&cType=news">61% in 2010</a>.</p>
<p>Clinical legal education – where law students provide free advice to the public – began in the United States. The <a href="http://heinonline.org/HOL/Page?handle=hein.journals/clinic7&div=11&id=&page=&collection=journals">first wave</a> was in the early 20th century as law schools started to look beyond traditional chalk-and-talk teaching methods. In the 1960s, the civil rights movement led to a rise in law school staff and students looking to assist those who could not obtain legal support elsewhere. </p>
<p>Slowly, UK law schools began to see the advantages of including clinical work in their programmes. Here was an opportunity to allow students to experience lawyering in context and to develop a range of practical skills including communication, strategic planning and commercial awareness. </p>
<p>But it took us some time to get into the swing of things. Our first wave wasn’t <a href="http://oxfordindex.oup.com/view/10.1093/acprof:oso/9780195381146.003.0001">until the 1970s</a> – and even in 1995 there were only eight law schools which ran a legal advice clinic. </p>
<h2>Flourishing of legal clinics</h2>
<p>Today, we’re in good shape. We have <a href="https://www.northumbria.ac.uk/about-us/academic-departments/northumbria-law-school/study/student-law-office/">law offices</a>, public legal education projects such as <a href="http://www.streetlaw.org/en/about/who_we_are">Streetlaw</a>, <a href="http://www.law.cf.ac.uk/probono/innocence/">Innocence Projects</a> and partnerships with law centres, Citizens Advice Bureaux and law firms, to name but a few. </p>
<p>New projects are materialising with increasing frequency. Take for example the launch of the <a href="http://www.liverpoolecho.co.uk/news/business/small-firms-free-legal-help-8026986">Liverpool John Moores University Legal Advice Centre</a> which opened its doors in early November, following a successful pilot.</p>
<p>The LawWorks Report found that 85% of the law schools which responded to its survey were looking to increase their current pro bono provision. Extending legal subject areas, extra client appointments, establishing more local partnerships, and obtaining bigger premises are all on the cards. </p>
<p>It is estimated that there are 10,000 students currently involved in pro bono work. Imagine what this figure will be when these new projects are fully functional. And let’s not forget the significant number of supervisors who ultimately take responsibility for the legal advice being provided.</p>
<h2>Crucial service</h2>
<p>The work that law students and their supervisors undertake for the community is more than admirable. They provide a crucial service to those who are often left with no means of support elsewhere. I know from my own experience as a clinical supervisor how helpless clients can feel. </p>
<p>In a world where <a href="http://www.theguardian.com/law/datablog/2014/sep/09/legal-aid-in-england-and-wales-what-is-changing">legal aid has been all-but eradicated</a> and <a href="http://www.theguardian.com/law/2014/oct/23/legal-advice-litigants-without-lawyers-justice">650,000 people have been deprived of support</a>, there is a sense that there is no-one to turn to for help. </p>
<p>Perhaps this is why we have seen an increase in schemes such as the <a href="http://www.thepsu.org/">Personal Support Unit</a>, where volunteers guide those who cannot afford representation in court through procedures that can seem so alien. Those schemes have not been without criticism. Last year, journalist and editor of <a href="http://thejusticegap.com/us/">The Justice Gap</a> website, Jon Robins, said that the idea of well-meaning but unqualified amateurs helping with legal queries made his <a href="http://www.theguardian.com/law/2012/dec/13/law-students-legal-aid-gap">heart sink</a>.</p>
<h2>Students no replacement</h2>
<p>When I think of the clinic I work in, my heart doesn’t sink. It bursts with pride. Every day I see well-supervised students who put their all (and then some more) into providing a quality service to members of the public. But what we mustn’t do is look upon law schools as a replacement for legal aid, or a sticking plaster for a somewhat bruised legal system. </p>
<p>We cannot forget that this is clinical legal <em>education</em>, designed to give law students the opportunity to hone their practical legal skills, to experience what it is like to sit opposite a real person with a real issue and help them solve a problem. They need to understand how the cases and legislation they learn about in the classroom truly affect individuals and organisations – and to reflect meaningfully on their personal strengths and weaknesses. </p>
<p>We need to give our students time to learn. If we start to use them solely to fill the justice gap then we may lose the educational benefits which make clinic such a formative experience.</p><img src="https://counter.theconversation.com/content/34323/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Elaine Gregersen does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Law students are doing more pro bono work than ever before. In 2014, 70% of all UK law schools now provide free legal services to individuals, groups and organisations. According to the latest LawWorks…Elaine Gregersen, Solicitor Tutor, Northumbria University, NewcastleLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/313912014-09-09T15:34:13Z2014-09-09T15:34:13ZChaos in the justice system, but Grayling insists all is ‘going exactly to plan’<p>It never gets any easier for justice minister Chris Grayling. Every month he seems to face fresh criticism over some new catastrophe in the justice system over which he presides. September is proving no different as he faces a judicial review into his criminal legal aid cuts, is forced to defend his policies on prison and probation in parliament and takes on a House of Commons committee concerned his cuts to legal aid are hurting families.</p>
<p>Grayling would insist that he does not worry about his detractors. They are typically dismissed as being left-wing – as though taking a differing political stance to his slavishly ideological conservatism automatically debars their opinions. His much-derided attempt to curb judicial review is a prime example. He accused lobby groups of turning this process – through which citizens can challenge government decisions – into a <a href="http://www.dailymail.co.uk/news/article-2413135/CHRIS-GRAYLING-Judicial-review-promotional-tool-Left-wing-campaigners.html">“promotional tool”</a> and a means to delaying government projects of all kinds.</p>
<p>All the same, it is difficult to imagine how he could reflect upon the numerous disasters he has presided over in office and not feel a sense of embarrassment.</p>
<p>He has roused the ire of that most establishment of professional groups, the Bar association. Yet even the sight of bewigged barristers protesting against him in the streets with placards was not enough to shake him.</p>
<p>This week sees solicitors take <a href="http://www.theguardian.com/law/2014/sep/08/chris-grayling-legal-aid-cuts-judicial-review-challenge">Grayling to judicial review</a> claiming the cuts to criminal legal aid were unlawful. While his own lawyers deal with this challenge, Grayling was this morning answering questions on two other areas of his justice portfolio. </p>
<p>Part of his grilling focused on probation, as the service Grayling is dogmatically trying to privatise recently revealed a remarkable level of distrust in him. A survey of 1,000 probation workers saw a staggering 98% claim to have no confidence in the justice secretary. The vast majority said they were considering quitting, dismayed at the manner in which the minister’s reforms were eroding standards and pushing them to compromise on the service they provided.</p>
<p>Dissatisfaction is inevitable when the transition process is so haphazard as to see staff selected to move to private firms based on a lottery – with names <a href="http://www.politics.co.uk/news/2014/07/25/privatisation-lottery-admission-shows-grayling-misled-the-co">literally being picked out of a hat</a>. When pressed, though, Grayling stated that his reforms are “going exactly to plan”.</p>
<p>Grayling was also probed on the <a href="http://www.politics.co.uk/blogs/2014/09/03/the-trouble-with-wormwood-scrubs-how-grayling-created-a-disa">“disaster”</a> he is claimed to have created in the prison system. This followed a damning report the revealed ongoing chaos at Wormwood Scrubs prison, spending cuts that have led to prisoners being locked in their cells for longer and a draconian new regime that included the <a href="http://www.theguardian.com/society/2014/apr/30/prisoners-penalised-book-ban-relationships-prison-reform-trust">notorious prison book ban</a>. </p>
<p>Grayling steadfastly denies that he has plunged prisons into chaos and said that prisons are now “less violent”. This despite the facts showing that serious attacks are higher than at any point in the last five years and incidents involving <a href="http://www.bbc.co.uk/democracylive/house-of-lords-27875601">riot squads are up by 60%</a> on 2012-13 figures. Add to that the 88 prisoners who killed themselves last year and the Howard League for Penal Reform’s claim that Grayling has sent the penal system into “meltdown” seems pretty plausible.</p>
<h2>Family law in crisis</h2>
<p>On top of this, the House of Commons Justice Committee has been investigating the impact of cuts to legal aid and all eyes are on Grayling again. The coalition made huge cuts to <a href="http://www.legislation.gov.uk/ukpga/2012/10/contents/enacted">legal aid</a> in April 2013 in legislation so divisive it was defeated 14 times in the House of Lords and, in the end, only passed because the vote was tied (meaning a government victory).</p>
<p>Personal injury, employment, immigration, debt and housing all suffered but support for private family law cases such as divorce and custody battles was decimated. All funding was taken away except to fund cases that involved domestic violence, forced marriage or child abduction. This meant that those involved in disputes caused by family break up would need to either seek the support of charities (though legal aid cuts are rapidly putting Law Centres out of business), use no-win, no-fee lawyers (despite Grayling also clamping down on these) or pay the eye-watering private practice rates of the legal profession. </p>
<p>In practice, the cuts have led to a massive increase in litigants-in-person – in family law, estranged parents representing themselves over financial issues, residence and access. This has created a two-tier system between those who have legal advice and those who do not. Justice has become a preserve of the rich.</p>
<p><a href="http://www.independent.co.uk/news/uk/home-news/children-suffer-as-cuts-to-legal-aid-penalise-parents-in-court-9466727.html">Almost half</a> of parents now go into court without legal advice. Instead of being concerned though, the government herald the decline in representation as a triumph, marvelling at how delays have been reduced in the courts and how mediation is quicker and cheaper than ever.</p>
<p>The coalition response flies in the face of the evidence. There has been a <a href="http://www.relate.org.uk/blog/2014/8/01/why-number-legal-aid-funded-mediation-cases-still-dropping">38% decline</a> in meditation over the past year. That’s because without legal advice, couples don’t know that they could and should use the service. Instead, they end up facing each other in court, where they often end up representing themselves and angry at each other. The number of children caught up in legal battles between divorcing parents is running at twice the rate before the cuts. </p>
<p>Cases are taking longer to resolve because litigants-in-person do not understand legal issues and need judges to work through cases with them in the courtroom. Delays are no good for the children involved in these cases, which in itself, contravenes the rule that their welfare must always come first. The reality is that a government which claims to put family first is failing innocent children, who have become the unfortunate by-standers in their parents’ disputes.</p><img src="https://counter.theconversation.com/content/31391/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Daniel Newman does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>It never gets any easier for justice minister Chris Grayling. Every month he seems to face fresh criticism over some new catastrophe in the justice system over which he presides. September is proving no…Daniel Newman, RA, Sustainable Places Research Institute, Cardiff UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/298682014-07-30T05:23:37Z2014-07-30T05:23:37ZTribunal fees mean workers can’t afford a fair hearing<figure><img src="https://images.theconversation.com/files/55186/original/tthqjywy-1406641147.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Justice a victim of Blue Sky thinking?</span> <span class="attribution"><a class="source" href="https://www.flickr.com/photos/stevec77/107868154/in/photolist-9C1C8N-9BBizJ-97Gb7T-4TwVqP-4RUwzW-dveXaK-dLjTs-5AUSt7-4v8hTt-4x4hEu-4vcoWW-awRrL-6bminB-a7PCL5-xbpJr-2nzRw-2Tb64k-eBRaRb-8S5zLf-7YDejS-9pSoYT-kyp3v-eMAPh4-JRxiK-o8vADR-gCuBq2-MM4yH-72e6Ss-9SPCGS-are7f7-4WhHcr-4pPrS8-5tSHss-77vYMe-8tbae-7yKsXQ-au7dHK-Dj9WL-6KXdb-9HNrRU-ieNqE-bjXgHz-aj7mW9-LVKWP-9SWV2C-6udia5-4pTuRo-a7LFuH-5hPcSS-4zkjzB">Steve Calcott</a>, <a class="license" href="http://creativecommons.org/licenses/by/4.0/">CC BY</a></span></figcaption></figure><p>It’s been a year since <a href="http://www.justice.gov.uk/downloads/tribunals/employment/et-fees-factsheet.pdf">the government introduced fees</a> for workers making a claim to an employment tribunal. The most recent statistics show that this has led to <a href="http://www.lawscot.org.uk/news/press-releases/2014/july/employmenttribunalfeereport28714">an 81% decrease in cases</a>. This has profoundly worrying consequences for the future of employment law. Workers who have been unfairly dismissed, subjected to unlawful discrimination, or who have simply not been paid for work they have done now have severely limited access to justice.</p>
<p>So why has the sudden drop happened? Have employment relations in the UK suddenly improved? No. The reason is simply that the vast majority of workers who find themselves in dispute with their employers (or ex-employers, since many claims relate to dismissal) can no longer afford to seek justice.</p>
<p>The coalition government introduced the fees regime largely thanks to unsubstantiated assertions that employment tribunals provided a charter for workers to make unmerited claims and vexatious appeals. The restriction of access to justice on the basis of ability to pay may seem like a contradiction in terms, and the level at which fees have been set is far higher than those for making a comparable claim in the County Court. </p>
<p>In order to even submit a form which enables a claim to be lodged in the system, a worker must now <a href="https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/254326/T435_1113.pdf">pay between £160 and £250</a> depending on the nature of the claim. If the claim goes to a hearing, the aggrieved worker must pay a further £230 or £950. This means that in order for many serious claims to be resolved, alleged victims must pay £1200 alongside any other related costs. It is hardly surprising that four out of five people now decide not to proceed.</p>
<h2>Small claims caught</h2>
<p>Our research with individuals who have sought help from Citizens Advice Bureaux with their work-related disputes tells us that many claims are for fairly small amounts – for unpaid wages or holiday pay that might amount to no more than £300. A simple financial calculation would dissuade anyone from pursuing claims like these, but to a worker on minimum wage taking home £250 a week, £300 is a lot of money.</p>
<p>Add to this another set of statistics from the government’s <a href="https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/253558/bis-13-1270-enforcement-of-tribunal-awards.pdf">own research</a> which shows that less than half of those given an award by a tribunal ever receive the full amount, while 35% get nothing at all. Indeed, given the high levels of stress endured by those who have tried to navigate their way through an already overly legalistic and complex system, it is hard to see why anyone would pursue a claim. </p>
<p>Even those who can afford lawyers’ fees for advice and representation find the process a difficult one. Imagine what it is like for workers without the support of a union or a lawyer, going up against skilled legal advisers in a tribunal which is their last resort. Even before the introduction of fees, they were likely to experience a number of barriers in attempting to recover pay or bring a bad employer to justice. For many such claimants the imposition of fees has been the final straw.</p>
<p>Given the dramatic effect of the fees, it’s worth looking again at where the original idea came from, as well as its underlying purpose. Although widely proclaimed as a means of reducing burdens on business and thus a necessary step towards economic recovery, the policy actually appears to have emerged as a means of enforcing an ideological position rather than a policy response to hard evidence.</p>
<h2>Business friendly</h2>
<p>In October 2011, George Osborne announced that the government intended to increase the qualifying period for claiming unfair dismissal from one year to two years, thus making it easier for employers to sack workers. In the same speech, the chancellor <a href="http://www.conservatives.com/News/Speeches/2011/10/Osborne_together_we_will_ride_out_the_storm.aspx">announced the introduction of a fees regime</a> with the rationale being that it would become “much less risky for businesses to hire people”.</p>
<p>Despite having looked very closely at the tribunal system while tracking the experiences of many workers involved in disputes with their employers over the last two years, we have found no evidence of widespread abuse of the system. Except, that is, by employers who refuse to pay out on awards. In the post-fees environment, surely even the most committed neo-liberal would have difficulty in arguing that the 81% reduction in claims is linked to a fall in vexatious claims.</p>
<p>Introducing fees in order to take a legitimate grievance to a place of adjudication is bad enough. Worse is that it is only the worker who is required to pay a fee, and not the employer if they choose to defend their actions. This sends a message to employers that they can get away with behaving unlawfully towards their staff. There is no mechanism to dissuade them and there are now more barriers than ever in place for workers who wish to challenge treatment through tribunal system.</p>
<h2>Challenge</h2>
<p>The legality of the fees regime is already being <a href="http://www.unison.org.uk/news/unison-granted-permission-to-appeal-high-court-decision-on-tribunal-fees">challenged through the courts by Unison</a> in which the union argues that the imposition of fees amounts to a denial of access to justice for workers and has a disproportionate impact on women. A similar case raised by the law firm Fox and Partners <a href="http://www.foxandpartners.co.uk/legal-challenge-to-introduction-of-fees-in-employment-tribunals/">is pending in Scotland</a>.</p>
<p>However, simply turning the clock back to an era of pre-fees employment tribunals is not the answer. Tribunals were already failing to provide accessible justice for all and the potential costs had always been great. Workers faced a fear of being made to pay the employer’s costs; of intimidation tactics; and an apprehension about representing yourself in a daunting and unfamiliar process. Aside from the financial cost, the psychological and emotional damage left many in mental or physical ill-health.</p>
<p>Part of the problem relates to the move towards the individualisation of employment disputes which has been taking place for far longer than the coalition government has had its hands on the tribunal system. The solution must surely lie in looking for new models of collective action.</p>
<p>So rather than being confined to the narrow scope of the employment contract, the appropriate legal framework should be able to take account of the broader purpose of labour law: to redress the imbalance of power inherent in most working relationships which currently favours the employer. This is a call to arms for trade unions to find ways of supporting the most vulnerable workers in our society – such as those employed on zero-hours contract within the care sector – who too often work within organisations that are non-unionised. </p>
<p>As an important first step, advice agencies, trade unions and other community-based legal service providers need to pool resources and collect data which highlights the real life stories of individuals trapped in difficult workplace situations or cast aside by scurrilous employers now more certain than ever they will avoid a reckoning. It is only by joining up such evidence and assessing the very real damage that is being done to workers that it will be possible to reconstitute labour law’s democratic function, by which individual disputes once again become matters of public concern.</p><img src="https://counter.theconversation.com/content/29868/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Nicole Busby works for Strathclyde University and the research referred to in this article is funded by the European Research Council.</span></em></p><p class="fine-print"><em><span>Morag McDermont has received funding from the European Research Council</span></em></p>It’s been a year since the government introduced fees for workers making a claim to an employment tribunal. The most recent statistics show that this has led to an 81% decrease in cases. This has profoundly…Nicole Busby, Professor, University of Strathclyde Morag McDermont, Professor of Socio-Legal Studies, University of BristolLicensed as Creative Commons – attribution, no derivatives.