Reductions in legal aid cases

Figures released today by the Legal Services Commission show reductions in the number of cases funded by legal aid in the past year. A total of £35.3m less was spent in non-family civil cases and £30m less in criminal cases, but a big rise in child protection cases has soaked up these reductions.

In non-family civil legal aid the main contributor to the reduction in spending has been just under £20m less being spent on asylum and immigration cases. LAG is surprised that around £12m less was spent on asylum cases in the year ending 31 March 2012 as figures from the Home Office show an 11 per cent increase in asylum applications in 2011. We believe that the reduction in expenditure on such cases has been caused by clients being unable to find a lawyer willing to take on their cases.

In the last two years, two of the largest suppliers of advice in immigration and asylum cases, the charities Refugee and Migrant Justice and the Immigration Advisory Service, have folded because of financial problems. Between them these charities undertook around 35,000 cases a year, which is at least a third of the annual total of immigration and asylum cases. LAG believes that the demise of these charities is a large part of the reason for the reduction in cases and fears that clients in need of advice on immigration matters are not getting the help they need.

There are also reductions in spending on housing, welfare benefits, debt and other civil cases. Although not on the same scale as the reduction in spending on immigration advice, these reductions in advice spending, which concern areas of law in which people commonly experience problems in a recession, are again surprising. The numbers of contracts in these non-family areas of law is down by around 200 to 2,640, and so it might be that the public are experiencing greater difficulties in accessing advice.

Police station and magistrates' court cases are down by £30m in expenditure, representing around 100,000 cases. Due to the wider use of cautions, the numbers of such cases have been falling in recent years, but anecdotal evidence from both defence lawyers and the police suggests that the police are increasingly not charging suspects due to budget cuts.

Expenditure on child protection cases has risen again, this year by £65m. The continuing impact of the baby Peter case is a likely factor, but costs per case also rose by approximately £500 to £5,495. This suggests that lawyers are taking more time on these cases. Other costs, such as expert reports, have also increased. These figures indicate that the government needs to do more work on understanding the costs of protecting children, as this remains a priority for the legal aid system. LAG believes that the reduction in expenditure for the rest of the civil legal aid system demonstrates that there is a direct relationship between availability of advice and access to justice.

See the LSC statistics and the Home Office asylum statistics.

Foreign National Prisoners

Last night LAG launched its latest book, Foreign National Prisoners: law and practice. The law permits prisoners from foreign countries to continue being detained on completion of their sentences pending deportation. The book discusses the legal procedures which permit this, and prisoners’ rights to appeal against their detention and removal. In some circumstances the Home Secretary is permitted to detain foreign nationals pending their deportation even if they are not accused of committing a crime in this country. Abu Qatada, whose application for bail was decided on Monday, is one such case. This is a controversial area of law, as the detention of people for long periods who have either completed their sentences, or have not even been charged with an offence, is contrary to previously accepted principles of UK law.

Abu Qatada promulgates repugnant views in support of al-Qaida, but has never been charged with a crime in the UK. He has been detained for over six years, as the application for his extradition to Jordon was considered. The Jordanian authorities want him to stand trial on terrorism-related offences. Edward Fitzgerald QC, head of Doughty Street Chambers, said at the book launch last night: 'Like all great books it has come at the right moment.' Referring to the Abu Qatada case, in which he represented Qatada in his bail application this week, he added: 'It is a book being launched into stormy waters.'

Defending the rights of foreign national prisoners is not a popular cause - much of public and political opinion is hostile towards convicted criminals and people accused of crimes in foreign countries, such as Abu Qatada, being allowed to remain in this country. However, often in these cases the law has to work impartially for the sake of both justice and the greater moral good. The Qatada case hinges on whether a trial can be considered fair if it relies on evidence obtained by torture. The European Court of Human Rights has ruled that it would be illegal to deport Qatada in these circumstances. Torture is wrong and cannot be condoned by a civilised country. LAG believes this is a moral and legal principle which supersedes the deportation of a criminal suspect no matter how hateful their political opinions may be.

Speaking to LAG, the book’s main author Laura Dubinsky said: 'Foreign national former prisoners, including non-violent offenders, are often administratively detained for prolonged periods after sentence completion, sometimes notwithstanding very remote chances of deportation actually occurring.' She explained that the UK is now alone in the European Union in having no time limits on the administrative detention of immigrants; and that there are no automatically scheduled bail hearings for those held under Immigration Act powers in the UK: 'Effectively, the onus is on a detained immigrant to seek bail. All this poses grave obstacles for those unfamiliar with the justice system and who may not speak English; these difficulties are now being compounded by a lack of legal representation, as legal aid cuts are forcing the closure of many services which provided publicly funded legal assistance for migrants.'

Laura Dubinsky is a barrister at Doughty Street Chambers and practises in public law, specialising in immigration law, prison law and challenges to administrative detention. Hamish Arnott, a solicitor at the firm Bhatt Murphy and Alasdair Mackenzie, another barrister at Doughty Street Chambers specialising in this field, also contributed chapters to the book.

Link to the decision in the Abu Qatada bail application case

Foreign National Prisoners: law and practice

Immigration Advisory Service in administration

LAG learnt yesterday that the Immigration Advisory Service (IAS) has folded due to financial problems. The trustees of IAS, which is a charity, took the decision to put the organisation into administration from Friday last week. We believe that in recent years IAS has been suffering cash flow problems caused in large part by its dependence on legal aid income. Like Refugee and Migrant Justice (RMJ), which went into administration in June last year, these cash flow difficulties were caused by the change to fixed fees for legal aid work three years ago, which resulted in reduced income and delays in payment. The charity also carried large liabilities for the costs of interpreters, experts and other third parties, who carried out work on cases for it.

LAG understands from a statement on the charity's website that it was trying to negotiate the repayment of money owed to the Legal Services Commission (LSC), but the Board took the view that it would not have sufficient cash in the future due to the pending legal aid cuts to pay off this debt. LAG believes that around 30 per cent of IAS's work involved non-asylum immigration advice, all of which is due to be cut from scope. The organisation would also have been badly hit by the ten per cent reduction in fees due to be introduced in the autumn.

It is thought that IAS has over 25,000 live cases (over double the number which RMJ had when it was placed in administration). IAS employed around 300 staff. It worked from 14 offices and had a further 12 outreach services hosted in other locations. A message on the LSC's website requests that clients check the IAS website for updates on the transfer of their cases.

LAG believes that in some areas of the country, for example Greater Manchester, up to 80 per cent of the supply of immigration legal advice funded by the legal aid system was provided by IAS. Many firms and not for profit organisations either lost some or all of their work to IAS in the last tender round two years ago. Due to procurement law and the reduction in capacity among firms which lost out in the last tender, it will be extremely difficult to find alternative representation for all of the IAS clients. LAG believes the government could be in danger of breaching international law which requires that legal advice services are provided to refugees seeking asylum.

What has happened to IAS illustrates the folly of pursuing a strategy of trying to concentrate legal aid work between fewer larger suppliers, which is what the LSC has been trying to do in immigration law. Also, in the last year, the legal aid system has lost its two biggest suppliers of immigration law services due to financial difficulties, in large part caused by cuts to the legal aid system. This begs the question when will the government take heed of what the market appears to be telling it - that the fees paid for many types of legal aid work are not sustainable.