"No Mad Laws" campaign delivered to government
The No Mad Laws campaign has been coordinated by Gypsies, Travellers and their support groups and representatives to highlight the disastrous effect that the Coalition Government’s legal aid and judicial review reforms will have upon members of the Gypsy and Traveller communities.
The Campaign has organised a petition through the 38 Degrees website. The petition states:
"We the undersigned call upon the Government to ensure that Gypsies and Travellers who need advice and assistance under the legal aid scheme are able to receive it.
Due to the legal aid reforms contained in the Legal Aid, Sentencing and Punishment of Offenders Act 2012, Gypsies and Travellers on rented local authority sites are unable to get advice and assistance apart from in eviction cases and cases involving serious disrepair, and Gypsies and Travellers facing eviction from encampments by local authorities may be unable to challenge the eviction action even where the local authority are acting in defiance of government guidance.
We call upon the Government to ensure that:
The legal aid regulations relating to the payment for work done on judicial review claims pre-permission should be withdrawn and legal aid should be reinstated for judicial review, subject to the usual merits criteria and eligibility provisions;
Trespassers are brought back within the definition of ‘loss of home’ for the purposes of legal aid;
As proposed by the Low Commission, Housing Law should be brought back within scope for legal aid;
and, as the Low Commission also recommended, there should be an urgent radical overhaul of the provision of Exceptional Funding."
1464 signatures have been obtained and the petition has now been delivered to Chris Grayling MP, the Secretary of State for Justice.
One signatory stated:
Having access to the law is a basic tenet in a democratic society, if we remove this right, and allow that law to be accessed only by those who can afford to pay, how can we continue to call ourselves a democracy?
Details of the petition have also been sent to the other main political parties. We now await the response from the Government and the other parties.
THE PETITION'S RECOMMENDATIONS
We recommend that the following steps are taken for the reasons set out in this briefing paper:
1.The legal aid regulations relating to the payment for work done on judicial review claims pre-permission should be withdrawn and legal aid should be reinstated for judicial review subject to the usual merits criteria and eligibility provisions;
2.Trespassers are brought back within the definition of ‘loss of home’ for the purposes of legal aid;
3.As proposed by the Low Commission, Housing Law should be brought back within scope for legal aid;
4.As the Low Commission also recommended, there should be an urgent radical overhaul of the provision of Exceptional Funding.
THE IMPACT OF CHANGES TO LEGAL AID AND JUDICIAL REVIEW
Judicial Review
During the consultation process on proposals to amend the situation with regard to legal aid and judicial review, the vast majority of respondents indicated that most judicial review applications were settled successfully prior to the permission application being determined. . Despite this, the Government has now brought into force provisions which mean that legal aid providers will not be paid on a judicial review application unless permission is granted or, if the matter is settled prior to permission without costs being awarded to the claimant, at the discretion of the Legal Aid Agency. The situation with regard to interim relief applications is entirely unclear at this stage in terms of whether there will be any guaranteed payment for them or not. These changes will have a chilling effect as legal aid providers simply do not have the financial resources to take on work ‘at risk’ and, as indicated by the difficulties of obtaining Exceptional Funding (discussed below), the potential for the Legal Aid Agency to exercise its discretion in the provider’s favour offers little comfort.
Judicial review, obviously, provides a means by which people can hold public authorities to account with regard to unlawful actions and decisions. It leads to an improvement in public authority decision making processes. The changes to judicial review funding may mean that many providers will no longer take judicial review cases. The possibly disastrous effect on the rule of law of these reforms is obvious. Gypsies and Travellers are some of the most vulnerable members of our society and an inability to challenge an unlawful decision by a public body may put them at a particular disadvantage.
Loss of Home
‘Loss of home’ remains within scope for legal aid but ‘trespassers’ are excluded from the definition of ‘loss of home’. This means that Gypsies and Travellers on an unauthorised encampment facing county court eviction action by a local or other public authority where that authority are acting unlawfully (e.g. by flouting government guidance on welfare assessments) will be unable to get legal aid to defend that action in the county court.
Housing Law
The Low Commission on the Future of Advice and Legal Support has been established to develop a strategy for access to advice and support on Social Welfare Law in England and Wales. The Low Commission is chaired by Lord Colin Low and is made up of eight other Commissioners with expertise in this area. The Low Commission is independent of Government, political parties and advice providers.
The Low Commission have called for the return of legal aid in Housing Law cases (see Low Commission Tackling the Advice Deficit, January 2014). Importantly this would include cases under the Mobile Homes Act 1983.
Mobile Homes Act 1983
In 2011, six years after the European Court of Human Rights judgment in the case of Connors v UK (2005), the Government finally amended the law to give proper security of tenure to those Gypsies and Travellers living on local authority run caravan sites by amending the Mobile Homes Act (MHA) 1983 so that it covered those sites. However, that positive step was undermined when the LASPOA 2012 came into force. It stipulated that only possession actions and serious disrepair cases under MHA 1983 remain within scope for legal aid. It follows that many Gypsies and Travellers living on local authority sites will now find themselves unable to enforce the important rights they have been given under the MHA 1983 because most MHA 1983 disputes are now out of scope for legal aid.
Exceptional Funding
During the passage of the LASPO Bill through Parliament, the Government placed great emphasis on Section 10 of the Bill, and the possibility of exceptional funding (EF) being granted when circumstances required. The Government stated that EF would act as a vital safety net and indicated that it was intended to ensure that the failure to provide advice and representation to someone does not result in a breach of Article 6 of the European Convention on Human Rights (the right to a fair hearing) and does not breach European Union Law.
However, statistics disclosed by the Ministry of Justice (MoJ) (Ad Hoc Statistical Release: Legal Aid Exceptional Case Funding 1 April 2013 to 31 March 2014) demonstrated the fact that:
of 1,519 EF applications only 57 have been granted (42 of those for Inquests); and
of 81 Housing Law applications only 1 had been granted.
More recent statistics disclosed by the MoJ (Legal Aid Statistics in England and Wales July to September 2014) showed that:
of 300 EF applications only 44 were granted and
of 10 Housing Law applications, only 1 was granted.
It is also apparent that there is a drop in the number of applications, no doubt because providers feel that making an application is a waste of valuable time.
In the circumstances it is not surprising that the Court of Appeal found the Lord Chancellor’s Guidance on Exceptional Funding to be unlawful in the recent case of R (Gudanaviciene & ors) v The Director of Legal Aid Casework and The Lord Chancellor [2014] EWCA Civ 1622, 15 December 2014, .
EF ought to be available to cover matters involving: housing benefit; Gypsy and Traveller planning inquiries; disrepair issues on Gypsy and Traveller sites which need to go to tribunal; other claims under the MHA 1983. Many, many hours of solicitors’ and advisers’ time has been spent in attempting to get EF. It is absolutely clear to us that, in these cases, Article 6 is breached because clients are not able to deal with the relevant hearings and, thus, there is no equality of arms (the case of Airey v Ireland refers).
Conclusion
The reduction in scope of legal aid has led to situations where Gypsies and Travellers are being evicted unlawfully and are otherwise being denied access to justice. We believe that the predictions that this will lead to increased costs in the end are already being proved correct. At the same time, the purported safety net of EF has proved to be illusory but, in the process, has led to barristers, solicitors and advisers wasting vast amounts of time in fruitless attempts to obtain EF. This, in turn, is now leading to a situation where legal aid providers are no longer willing to even attempt to obtain EF. We believe that the Government may well be very happy with this result and we also believe that EF was never really intended to provide a proper safety net.
We fully support the Low Commission’s call for the return of legal aid in Housing Law cases. The Low Commission has also recommended that there be a radical overhaul of the provision of EF. That overhaul should take place without delay.
SUPPORTERS
Association of Chief Police Officers
Ladislav Balaz, European Roma Network
Cathay Birch, Romany Gypsy Campaigns
Jeremy Browne, solicitor
Bucks and West Herts Gypsy Advocacy
Community Law Partnership solicitors
Derbyshire Gypsy Liaison Group
Friends, Families and Travellers
Garden Court Chambers
Garden Court North Chambers
Debbie Harvey housing adviser
Alison Heine MRTPI planning consultant
Housing Law Practitioners Association
Irish Community Care Merseyside
Bethan Jones
Tim Jones barrister
Kushti Bok
Leeds Gypsy and Traveller Exchange
Lester Morrill solicitors
London Gypsy and Traveller Unit
Toma Mladenov, 8 April Movement
Dr Angus Murdoch MRTPI planning consultant
National Federation of Gypsy Liaison Groups
National Travellers Action Group
One Voice 4 Travellers
Grattan Puxon, Dale Farm Association
Reverend Roger Redding
Roma Support Group
Dr Simon Ruston MRTPI planning consultant
Margaret Smith-Bendell BEM
South West Alliance of Nomads
South West Law solicitors
Tony Thomson
The Traveller Movement
Traveller Space
Travellers’ Times
Travelling Ahead
David Watkinson, barrister (non-practising door tenant), Garden Court Chambers
Further information can be obtained from the No Mad Laws website at: http://www.nomadlaws.co.uk/