Get Red Pepper's email newsletter. Enter your email address to receive our latest articles, updates and news.
It’s difficult to conceive of a section of society more vulnerable, more in need of ‘access to justice’, than children separated from their parents seeking refuge in the UK, thousands of miles from home. This was one reason why the shock closure of Refugee and Migrant Justice at the start of the summer was such a wake-up call to campaigners about the grim times ahead for legal aid.
RMJ, formerly the Refugee Legal Centre, was Britain’s largest single provider of specialist immigration advice, employing 336 people in 13 offices across the UK. It was forced to close its doors on 10,000 asylum seekers, including 900 children who had arrived by themselves in the UK, mainly from Afghanistan, Iraq and Somalia. It had an excellent record of achieving results for its clients, who often had their cases mishandled by private firms of immigration solicitors. But three years ago, the Legal Services Commission (LSC), which runs legal aid in England and Wales, changed the way it pays so that, instead of receiving regular instalments, the likes of RMJ are only paid when a case is concluded. RMJ claimed that it was forced to close because it ran out of cash, despite being owed £1.8 million by the government.
This sorry story reveals much about the precariousness of the threadbare safety net of legal aid provided by a mix of privately-run law firms, citizens advice bureaux, law centres and advice clinics. It also illustrates the vital lifeline that is ‘legal aid’ and what it means when that safety net fails. Three-quarters of asylum seekers are turned down by the Home Office, but one quarter of the cases that go to appeal are overturned by an independent tribunal. If our criminal justice system had that kind of failure rate, it would be a national scandal.
Picking up the cases
So what happened to RMJ’s ex-clients, many of who would, in the words of former RMJ caseworker Andrew Jones, face ‘a return to torture and persecution’? A ministerial statement declared that the new government was ‘confident’ that there was ‘widespread provision of legal advice in this area’ to pick up the cases. The justice secretary Ken Clarke was unsympathetic and said that RMJ’s problems were of its own making. He told MPs that ‘every other organisation’ had coped with legal aid changes.
Six months down the line, though, caseworkers at other agencies report that they have seen only a small number of those who were being represented by RMJ. Maurice Wren, director of Asylum Aid, says that RMJ was ‘a bulwark against the erosion of asylum and refugee rights’. ‘We took on as many RMJ clients as we could, prioritising those with the most critical needs, including children and trafficking victims,’ he says, ‘but we could only pick up a tiny fraction of the 10,000 files that RMJ estimated needed attention.’
Andrew Jones fears that his former clients have been lost in the system. ‘We were told that their files would be transferred to other providers without the client having any say in where their files went. The government assumed that it would be OK for those clients just to be sent a letter by the new providers at some point. They assumed that their cases would just be picked up seamlessly,’ he says. That assumption was ‘complete rubbish. It was outrageous. Everyone was just totally stunned.’
Currently, we spend £2.1 billion on legal aid in England and Wales. In the October spending review, ministers announced they want to slash £350 million from an already impoverished scheme. Most people would accept that central to any notion of a decent democratic society is that we not only have basic rights and protections, but that those rights should be capable of being enforced. Legal aid provides a mechanism for people to go about enforcing those rights.
The Attlee government introduced our present system of legal aid in 1949. Its architects decreed that state funding shouldn’t be restricted to people ‘normally classed as poor’ but should also include those of ‘small or moderate means’. But eligibility for legal aid dropped from 80 per cent of the population in Attlee’s day to around two-thirds by the mid-1980s. The steepest decline was under New Labour, which capped the legal aid budget in 1999. That capping created a crisis in the system because Labour also combined the civil and criminal budgets. So social welfare law – that is, welfare benefits, immigration, employment, housing, discrimination – has been effectively smothered by a spiralling criminal budget. Fewer than one in three of us now qualify for help.
The coalition government’s cuts could (depending on how they fall) deliver the deathblow for the civil scheme. We will find out more when ministers release the promised green paper flagged up in the spending review, but the finances of legal practices dependent on public-funded law are so precarious that the smallest of shocks to the system can have a terminal effect, as seen with RMJ. A 2008 survey by the Law Centres Federation revealed that almost one in five of the then 54 law centres lived with the threat of closure and almost half were in serious debt.
This is not to suggest that there isn’t or hasn’t been waste. In the 1980s solicitors were fleecing the system through what was known as ‘green form’ fraud, and some of our learned friends at the criminal Bar have been making £1 million-plus a year from the legal aid fund. Often it can seem that legal aid is run for the benefit of lawyers (indeed, until 1988 the Law Society used to run the scheme).
But while there are legal aid fat cats, there aren’t many of them. A recent survey by the National Audit Office found that 16 per cent of legal aid providers made zero profit and another 14 per cent made 5 per cent or less profit. The legal services market is undergoing a radical liberalisation programme under the Legal Services Act 2007. From next October non-lawyers will be able to run law firms and this will see major retailers such as the Co-op and banks such as the Halifax moving into the field. Inevitably those law firms still doing legal aid work will start jettisoning loss-making legal aid practices as they feel the pressure of the competition.
Legal aid has been reviewed countless times in the recent past. Lord Carter of Coles, following a 2007 review, argued for a ‘market-driven economy’ in the system. This meant two things: the introduction of competitive tendering between providers and moving from hourly rates to fixed fees.
It’s hard to argue against fixed fees, provided they are set at the right level and there are reasonable escape clauses for exceptional cases. The single payment for the kind of asylum case that RMJ did is £459, whether it takes one or ten hours. But fixed fees incentivise hard-pressed practitioners – and the downright dodgy – to cut corners (you only get paid as much for an hour as you do for ten). At the same time, they penalise those diligent advisers (like RMJ) committed to securing access to justice for vulnerable clients. For RMJ, income per client over their last two years fell by 46 per cent as a result of fixed fees. Not everyone was struggling, though. A Legal Services Commission (LSC) response to a Freedom of Information request found that almost one third (29 per cent) of asylum legal providers were ‘making massive profits’ from the new scheme.
The recent implementation of the second element of the Carter reforms – competitive tendering – descended into farce over the summer with a series of legal challenges as law firms took the LSC to court. The Carter vision was for fewer, larger providers delivering economies of scale. The apparent crudeness of the tender system whereby firms had to bid for civil legal aid contracts has shocked a broad collection of firms and advice agencies.
The LSC received an excruciating drubbing at the hands of the High Court when the Birmingham-based housing specialist, the Community Law Partnership (CLP), challenged its loss of a contract. The CLP argued that the LSC’s scoring was irrational because it rewarded firms that took more appeals to the upper tribunal and penalised those who were more successful in the lower tribunal. Mr Justice Collins in the High Court questioned the LSC rationale on the grounds that surely that was the point (i.e. to prevent cases going to appeal)? It was ‘a dreadful decision’, the judge said.
Shortly afterwards the High Court dismissed the LSC’s family tender entirely as ‘unfair, unlawful and irrational’ following a Law Society-backed challenge. The results would have seen a 40 per cent reduction in the number of offices carrying out family legal aid work (from 2,470 to 1,300), prompting fears of ‘legal aid advice deserts’. Worryingly, some of the most expert firms and lawyers had lost out in the tender. They included Solace Women’s Aid (the amalgamation of Camden, Enfield and Islington Women’s Aid) and the family law specialists Dawson Cornwell, both of which failed to get contracts. Anne-Marie Hutchinson at Dawson Cornwell is well‑known for defending hundreds of women and young girls from being trapped in violent forced marriages. She has been consistently recognised as a pioneer in a difficult area of law (an OBE in 2002, inaugural Unicef child rights lawyer, legal aid lawyer of the year in 2004), but not by the Legal Services Commission.
The legal aid sector was already demoralised and over-stretched before the spending review. Now it will take an even bigger fight to save the service.
Hsiao-Hung Pai meets people affected by the fire, and finds sadness and suffering mixed with a continuing wariness of the official investigations
Chris Williamson MP, winner of the election's tightest marginal, Derby North, and recently reappointed shadow minister for fire services, talks to Ashish Ghadiali about Jeremy Corbyn, the housing crisis and winning from the left
The Corbyn-supporting group is preparing for another election at any moment, writes Adam Peggs – and now has the potential to create powerful training initiatives, union links and party reform efforts
’We believe in you. We are with you. We will never forget.’ Grenfell solidarity sweeps East London in mass banner drops from housing estates
Michael Calderbank profiles Jeremy Corbyn's new supporters in parliament
The Democratic Republic of Congo (DRC) continues to witness devastating political violence, but the world refuses to act. Ishiaba Kasonga and Serge Egola Angbakodolo ask why?
When fire safety has become a privilege for the rich, it’s time to stop austerity and fund emergency mass works to raise standards immediately, writes Jane Shallice
The election result has irreversibly changed political discourse in the UK, writes James Fox
In commemoration of the 30th anniversary of Bernie Grant's election to parliament, Ayo Wallace explores the life and legacy of his radical representation of Tottenham's black communities.
Across Britain, hundreds of thousands of people have now taken part in mass rallies for Corbyn's Labour. Eli Regan soaks up the atmosphere in Warrington
Contribute to Conter – the new cross-party platform linking Scottish socialists
Jonathan Rimmer, editor of Conter, says it’s time for a new non-sectarian space for Scottish anti-capitalists and invites you to take part
Editorial: Empire will eat itself
Ashish Ghadiali introduces the June/July issue of Red Pepper
Eddie Chambers: Black artists and the DIY aesthetic
Eddie Chambers, artist and art historian, speaks to Ashish Ghadiali about the cultural strategies that he, as founder of the Black Art Group, helped to define in the 1980s
Despite Erdogan, Turkey is still alive
With this year's referendum consolidating President Erdogan’s autocracy in Turkey, Nazim A argues that the way forward for democrats lies in a more radical approach
Red Pepper Race Section: open editorial meeting – 11 August in Leeds
The next open editorial meeting of the Red Pepper Race Section will take place between 3.30-5.30pm, Friday 11th August in Leeds.
Mogg-mentum? Thatcherite die-hard Jacob Rees-Mogg is no man of the people
Adam Peggs says Rees-Mogg is no joke – he is a living embodiment of Britain's repulsive ruling elite
Power to the renters: Turning the tide on our broken housing system
Heather Kennedy, from the Renters Power Project, argues it’s time to reject Thatcher’s dream of a 'property-owning democracy' and build renters' power instead
Your vote can help Corbyn supporters win these vital Labour Party positions
Left candidate Seema Chandwani speaks to Red Pepper ahead of ballot papers going out to all members for a crucial Labour committee
Join the Rolling Resistance to the frackers
Al Wilson invites you to take part in a month of anti-fracking action in Lancashire with Reclaim the Power
The Grenfell public inquiry must listen to the residents who have been ignored for so long
Councils handed housing over to obscure, unaccountable organisations, writes Anna Minton – now we must hear the voices they silenced
India: Modi’s ‘development model’ is built on violence and theft from the poorest
Development in India is at the expense of minorities and the poor, writes Gargi Battacharya
North Korea is just the start of potentially deadly tensions between the US and China
US-China relations have taken on a disturbing new dimension under Donald Trump, writes Dorothy Guerrero
The feminist army leading the fight against ISIS
Dilar Dirik salutes militant women-organised democracy in action in Rojava
France: The colonial republic
The roots of France’s ascendant racism lie as deep as the origins of the French republic itself, argues Yasser Louati
This is why it’s an important time to support Caroline Lucas
A vital voice of dissent in Parliament: Caroline Lucas explains why she is asking for your help
PLP committee elections: it seems like most Labour backbenchers still haven’t learned their lesson
Corbyn is riding high in the polls - so he can face down the secret malcontents among Labour MPs, writes Michael Calderbank
Going from a top BBC job to Tory spin chief should be banned – it’s that simple
This revolving door between the 'impartial' broadcaster and the Conservatives stinks, writes Louis Mendee – we need a different media
I read Gavin Barwell’s ‘marginal seat’ book and it was incredibly awkward
Gavin Barwell was mocked for writing a book called How to Win a Marginal Seat, then losing his. But what does the book itself reveal about Theresa May’s new top adviser? Matt Thompson reads it so you don’t have to
We can defeat this weak Tory government on the pay cap
With the government in chaos, this is our chance to lift the pay cap for everyone, writes Mark Serwotka, general secretary of public service workers’ union PCS
Corbyn supporters surge in Labour’s internal elections
A big rise in left nominations from constituency Labour parties suggests Corbynites are getting better organised, reports Michael Calderbank
Undercover policing – the need for a public inquiry for Scotland
Tilly Gifford, who exposed police efforts to recruit her as a paid informer, calls for the inquiry into undercover policing to extend to Scotland
Becoming a better ally: how to understand intersectionality
Intersectionality can provide the basis of our solidarity in this new age of empire, writes Peninah Wangari-Jones
The myth of the ‘white working class’ stops us seeing the working class as it really is
The right imagines a socially conservative working class while the left pines for the days of mass workplaces. Neither represent today's reality, argues Gargi Bhattacharyya
The government played the public for fools, and lost
The High Court has ruled that the government cannot veto local council investment decisions. This is a victory for local democracy and the BDS movement, and shows what can happen when we stand together, writes War on Want’s Ross Hemingway.
An ‘obscure’ party? I’m amazed at how little people in Britain know about the DUP
After the Tories' deal with the Democratic Unionists, Denis Burke asks why people in Britain weren't a bit more curious about Northern Ireland before now
The Tories’ deal with the DUP is outright bribery – but this government won’t last
Theresa May’s £1.5 billion bung to the DUP is the last nail in the coffin of the austerity myth, writes Louis Mendee
Brexit, Corbyn and beyond
Clarity of analysis can help the left avoid practical traps, argues Paul O'Connell
Paul Mason vs Progress: ‘Decide whether you want to be part of this party’ – full report
Broadcaster and Corbyn supporter Paul Mason tells the Blairites' annual conference some home truths
Contagion: how the crisis spread
Following on from his essay, How Empire Struck Back, Walden Bello speaks to TNI's Nick Buxton about how the financial crisis spread from the USA to Europe
How empire struck back
Walden Bello dissects the failure of Barack Obama's 'technocratic Keynesianism' and explains why this led to Donald Trump winning the US presidency