Law student and GMLC’s campaign volunteer lead, Hoejong Jeong, considers the barriers that stand in the way of ordinary people getting access to justice, looking at three recent case studies in the news. As the cases show, without access to legal aid or proper legal advice, domestic abuse survivors and detained migrants struggle to protect themselves and their rights.
CN: mentions of domestic abuse and imprisonment
Access to justice is one of the fundamental principles of a fair and equal justice system.
However, our current justice system as it stands is not open to all. Without legal assistance, a majority of people struggle to understand the law and their legal rights. In 2015, 55% of people who had experienced a legal dispute said they only partially understood their legal position – or did not understand their legal position at all. Therefore, access to a lawyer is often the first step to ‘access to justice’. You can’t say law is fair and equal to everyone if there is a lack of equality between the wealthy litigant and the under-resourced litigant who cannot afford access to a lawyer.
Despite many individuals needing access to lawyers, the cost of a lawyer can often be financially burdensome – and this is where legal aid is often needed. Unfortunately, access to justice has been hit hard by legal aid budget cuts, which has led to the overall budget falling by approximately 40% over the last decade.
The Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) brought significant budget cuts and partially or wholly removed entire areas of civil law from the scope of legal aid – including most benefits, debt, housing, employment and immigration advice, as well as family law that doesn’t involve domestic violence.
The implementation of LASPO has resulted in a large reduction in numbers eligible for civil legal aid. Only around 25% of the population of England and Wales were eligible for civil legal aid in recent years.
This means that large numbers of individuals have been denied access to justice because of the Government’s underspending on legal aid, which could result in tragedies for our friends and family.
The following cases are examples of where people have been denied access to justice due to legal aid budget cuts.
‘Denied for legal aid despite having £28 in her bank account because of unrealisable assets’
Following the breakdown of a relationship, domestic abuse survivor Amy* continued to occupy a three-bed family home in London. Amy was unable to meet mortgage payments, having no assets at her immediate disposal. Amy remained as the children’s primary carer, and the property met their housing needs.
Amy applied for civil legal aid to fund private family-law proceedings in respect of the custody of her children and a dispute about the property. However, her application for legal aid was rejected due to her having a heavily mortgaged property, despite that she had only £28 in her bank account and could neither borrow money against the asset nor sell it.
Thankfully, a High Court ruling in December 2020 stopped this legal loophole from affecting anyone else in Amy’s position – but the dire situation beforehand shows how access to legal aid can be pivotal during deeply personal and traumatic life events.
‘Losing custody of her children made a mother end up in prison’
Sandra* ended her marriage with her abusive husband. Upon separation, her husband complained to social services that she was neglecting their children because of a dispute over schooling. He took the children into his custody and obtained a non-molestation order. She insisted the allegations of neglect were false and consulted a solicitor. However, this happened just after LASPO had come into force, which meant that legal aid funding she would have previously been entitled to was not available, leaving her without options.
Sandra defied the court orders and went to see her children several times. This defiance of the court order led to Sandra being sent to prison. Without access to advice and representation using legal aid, Sandra could not access the legal channels that could have given her a fair chance at appealing the order and playing a part in her children’s lives.
‘Immigration detainees in prisons face deportation and permanent separation from their families and the communities where they have grown up’
Imran* was detained in prison under immigration powers, and was unable to access a legal aid lawyer for 9-10 months. Though being held under the same powers as many detained in immigration removal centres (IRCs), Imran was held in a prison, where conditions are more restrictive and there is less, or sometimes no, access to legal advice. Since the start of the pandemic, the Home Office has sought to hold fewer people in removal centres for Covid-19 safety reasons, placing many in prisons instead.
Individuals detained in an IRC have the right to access an ‘advice surgery’ that guarantees access to 30 minutes of legal advice, regardless of whether they meet the requirements for financial eligibility to receive legal services, whereas detainees held in prison only qualify to receive civil legal services if they meet both the financial resources criteria.
While being held in prison, Imran represented himself in his asylum claim, but didn’t succeed – reports describe his self-representation as having ‘dire consequences‘ in this case. He was also unable to successfully challenge the lawfulness of his detention. Here, Imran and other immigration detainees like him faced a double barrier to accessing legal advice: the unfair double standard for detainees held in prisons, and the limited legal aid provision available.
Imran went on to challenge this unfairness, represented by Duncan Lewis solicitors, and in February 2021, a judge ruled that the failure to provide access to immigration advice was a breach of Imran’s human rights. The judgment means the government will be required to remedy the situation for others in Imran’s shoes – but lack of eligibility and legal aid provision will prove the next barrier for many migrants who turn to the law to uphold their human rights.
*Names have been changed to protect anonymity.