Category: Legal Aid

Labour’s pledge to reinstate legal aid reflects a democratically accountable and trustworthy party

 

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Yesterday I wrote about the Labour party’s plans to reinstate legal aid, so that people who need to challenge social security decision-making may access legal support to do so. A number of people commented that we shouldn’t need legal aid to challenge the government’s welfare policies, as they should be fit for purpose in the first place.

However, I think that is a measure of how very low public expectations of government have sunk. What the Labour party are offering, to date, is a reformed social security system that does not punish the very people it is meant to support. So far their pledges include scrapping the bedroom tax, the Conservative’s sanction regime, the work capability assessment, the personal independent payment assessment, and a ‘root and branch’ review of the welfare system more generally, to ensure it is fair and adequately supportive.

Social security as it stands does not provide enough support to meet the essential costs of living, which has had some recognisable and catastrophic concsequences. The Labour party’s work on welfare is ongoing, and importantly, it is in consultation with disabled people, allied organisations and academics who have researched the woeful and absolutely unacceptable shortcomings of the current system. The consultations have been ongoing, too, indicating a party that is democratically inclusive, responsive, and is genuine in its claim to meet the needs and best interests of the many. 

The Conservatives have turned justice into a commodity for the very wealthy. Legal support is available, provided people can afford it. That unequal access to justice serves as a buttress for social inequality and political oppression.

Furthermore, a government owes its citizens distributive justice, too: fair policies, just laws, effective means to participate in how we are governed, fairly distributed resources and services, and so on. The Conservatives are unable to understand that justice is the application of the law equally to all citizens of the state, and that in democracies, policies are generally regarded as a mechanism for distributive justice, they are not devices for the withdrawal of justice and increasing oppression.

Similarly, human rights are also universal. That is the whole point of them. However, the Conservatives have also made them increasingly conditional, which has exposed some communities and social groups to increasing political discrimination.

Recently, the Bar Council chair said the rule of law is at risk because of such “political folly and expediency.” Andrew Walker QC also said that justice in the UK is at risk because of political decisions that threaten to undermine the independence of the judiciary, underscoring a deep anger coursing through the legal profession.

Walker used his speech to the Annual Bar and Young Bar Conference last month to say: “In truth, in the last decade, we have been following a course that has set its face against justice, by political design, political folly and political expediency.”

He added “Cuts to legal aid represent “a huge threat to access to justice in our country. If we can no longer deliver access to justice of which we can be proud – even worse, if our systems of family and criminal justice start to fail – then our justice and rule of law are at risk.”

The comments reflect widespread, mounting concern about cuts to the legal system and the impact they are having on access to justice.

Referring to they way the justice system in the UK had taken centuries to evolve, Walker said: “Just because something is longstanding does not mean that it, or the people in it, are unbreakable.”

Many of us raised these concerns when the cuts were first proposed by the government. Access to justice is an absolute constitutional principle. It must not be undermined. Access to justice is a fundamental democratic right, and the chaos and failure unfolding across the legal system as the result of cuts should concern everyone who cares about justice.

The Ministry of Justice is under criminal investigation by the Information Commissioner’s Office for having failed to publish its research in full when ordered to, opting instead to publish a short and incomplete summary.  A review of 2012’s Legal Aid, Sentencing and Punishment of Offenders Act (Laspo) is being carried out. But ministers have already delayed far too long in the face of clear evidence that cuts in the family courts have been harmful.

Official figures show that the proportion of litigants with legal representation fell from 60% in 2012 to 33% in the first quarter of last year, and it is not uncommon for one party in a civil case to be represented by a lawyer while the other is not. Last year one senior family court judge, Mr Justice Bodey, described the current position as “shaming”, while Mr Justice Francis said it was remarkable that the parents of Charlie Gard did not qualify for legal aid in their dispute with their son’s doctors.

Meanwhile, the Law Society began a judicial review of cuts to the fees paid to solicitors for legal aid work, while a strike by barristers, which saw more than 100 chambers refuse to take on new cases, was called off in June only after the government came up with additional funds.

Legal aid began in the UK in the 1940s, along with the rest of the welfare state. In the US, a defendant’s entitlement to a lawyer in a criminal case is enshrined in an amendment to the constitution. While the rules in the UK may lack this constitutional underpinning, people should still be entitled to access to justice – including lawyers paid for with legal aid. Without equal access to justice, human rights frameworks are pretty much redundant. 

In a functioning democracy, regardless of what kind of policies a government puts in place, we must have equal access to justice. Legal aid was part of our post war democratic settlement, and the Conservatives have dismantled most of that. Restricting our access to justice was part of a deliberate and coordinated attack on citizens’ most fundamental rights, in an attempt to prevent people holding the government to account for their devastating welfare ‘reforms’ and cuts to the NHS, among other authoritarian changes the government have made to our society. 

A key point is this. Even when we have a rather more fair, balanced and egalitarian government in office, we must always, nonetheless, have access to justice, so that if or when things go wrong, we can hold that administration to account. In pledging to reinstate legal aid, Labour are not only doing the right thing, they are demonstrating a willingness to be held democratically accountable for their policies and their consequences. That must surely inspire a degree of faith and trust.

These are the essential mechanisms of democracy that we seem to have forgotten over the last eight years. We no longer expect government to act in the best interest of citizens.

However, that is not true of all governments.

I am hopeful that the Labour party’s social security policies will be fit for purpose precisely because Labour plan to reinstate legal aid. It shows that they plan to implement policies that comply with human rights frameworks, and are therefore much less likely to face legal challenges in the first place. Legal aid provides ordinary people with an essential democratic safeguard and demonstrates the Labour party are comfortable with being held accountable should the need arise.

These are the key reasons why I welcome this move.

Legal aid is a fundamental right and a crucial safeguard in a democratic society. Without equal access to justice, we simply cease to be free. 

Related

Labour party pledge to reinstate legal aid, restoring equal access to justice

 


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Labour party pledge to reinstate legal aid, restoring equal access to justice

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The Labour party will restore legal aid for people appealing against cuts to social security, such as Universal Credit and Personal Independent Payment, the shadow justice secretary, Richard Burgon, is to announce.

The UN special rapporteur on extreme poverty and human rights, Philip Alston, warned last month that cuts to legal aid meant many could no longer afford “to challenge benefit denials or reductions” and were “thus effectively deprived of their human right to a remedy”. 

Back in 2012, I warned that without equal access to justice, citizens simply cease to be free. I strongly welcome this move from the opposition, in particular because I regard access to justice – a basic human right – as absolutely fundamental to a functioning democracy.

Those seeking to challenge decisions by the Department for Work and Pensions (DWP) on social security payments, many of which are incorrect and unfair, will be able to gain access to legal advice to help them pursue appeals, Labour has pledged.

Burgon argues that restoring such financial support would encourage the DWP to get decisions right the first time, thereby reducing costs for the Ministry of Justice (MoJ).

More than two-thirds of appeals against DWP decisions on personal independence payments (PIP) and employment support allowance (ESA) are successful, says the Labour party, adding that those decisions have affected thousands of vulnerable people with illnesses, disabilities or in poor health. 

Since the Coalition government’s Legal Aid, Sentencing and Punishment of Offenders Act (Laspo) came into effect in early 2013, the number of people receiving legal aid to challenge benefit decisions has fallen by 99%. The MoJ spends more than £100m a year on tribunals disputing appeals against benefit decisions.

In addition, the DWP has spent more than £100m on PIP and ESA reviews and appeals since October 2015. That means  the state is spending huge amounts of money to get its’ own way in imposing wrongful decisions, while ensuring those affected cannot easily challenge such unjust decision making processes, which become embedded into an increasingly punitive social security system. It’s difficult to regard this as anything other than a politically coordinated attack on the rights of citizens and the welfare state by the Conservatives.

Since the Laspo act came into effect, many expert social security lawyers have left the field because cases were no longer funded. The MoJ has experienced the deepest cuts of any Whitehall department since 2010; its budget is to shrink further over the next two years.

Burgon said: “People should never be expected to navigate a complex appeals process all by themselves. That can force some to give up their claim altogether after a wrong initial decision. Others endure months of stress trying to prepare their own case. It’s bad now but will be even more difficult after universal credit’s rollout.

“Cuts to early legal advice have been a false economy. Ensuring that people are armed with expert legal advice to take on incorrect benefits decisions will not only help people get the benefits they are entitled to, it should make it less likely that flawed decision takes place in the first place, which would be good for the individuals themselves, and help to tackle the tens of millions of pounds spent on administering appeals against flawed decisions.”

Unless, of course, the intention all along was to ensure that the state’s ‘incorrect’ decisions stand. I rather suspect that is so.

The number of people granted legal aid in welfare cases has plummeted from 91,431 in 2012-13 to 478 in 2017-18, according to Legal Aid Agency figures.

A 2010 Citizens Advice report (pdf) concluded that for every £1 of legal aid expenditure on benefits advice, the state potentially saved £8.80.

Labour estimates that to restore early legal advice to pre-Laspo levels for benefits cases would cost £18m a year and help about 90,000 cases.

The party has already pledged to restore legal aid funding for advice in all housing cases, reversing far-reaching cuts imposed by the government five years ago. It has also promised to re-establish early advice entitlements in the family courts and to review the legal aid means tests.

Burgon says “Cuts have left vulnerable people without the legal support they need when faced with a rogue landlord, a difficult family breakup, or Theresa May’s “hostile environment. 

“But of all the cuts to legal aid, the slashing of advice for ill and disabled people unfairly denied their benefits is one of the cruellest. It creates the shameful situation where people are first denied the financial support to which they are legally entitled and then must struggle through a complex appeal without legal advice, causing further stress and anxiety.”

He says that the Labour-initiated Bach commission on access to justice outlined the direction in which the government needs to go. The Conservatives’ review (due before Christmas) should follow its recommendation to boost funding for early legal advice. Instead, however, it’s likely to be ‘another missed opportunity’. 

As Burgon notes, next year marks the 70th anniversary of the Legal Aid and Advice Act of 1949. Too often, legal aid has been treated as the forgotten pillar of the welfare state. Access to health and education are rightly recognised as the right of every citizen. Access to justice should be too.

 

See also: Labour will restore legal aid so all citizens have access to justice – not just the rich


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Labour will reinstate Legal Aid – John van der Luit-Drummond

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Jeremy Corbyn has said that “Society cannot survive on charity, goodwill, and food banks. It has to rely on the basis of a welfare state that ensures that no one falls into destitution, and a legal system that ensures no one goes unrepresented in the courts.”

He said that he shares agreement with members of his shadow justice team, that the Labour party under Ed Miliband’s leadership had not given legal aid the attention it deserved in the last general election.

“It wasn’t given enough prominence either by us or in the general debates at the election itself, I want to see a rights-based society and the right to justice is crucial, therefore the right to legal aid is absolutely essential,” he said.

The Labour party leader said the government’s £350m worth of cuts to the Ministry of Justice (MoJ) budget had clearly meant many people were not getting justice, and in many cases were going unrepresented in court.

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Speaking exclusively to Solicitors Journal, following a barnstorming address at a legal aid forum to a gathering of legal professionals, Jeremy Corbyn said the government’s reforms to the justice system meant firms were pulling out of legal aid to concentrate on more lucrative practice areas, to the detriment of young practitioners.

“At the moment a lot of lawyers feel they can’t be dealing with legal aid, they have to find something else to do, hence the number of firms that don’t want to get involved in legal aid or just do commercial law because that is the only way they can make a living. It is not good for anyone. We need a proper legal system,” said Corbyn.

“It is a deterrent for young people going into law in the future, so we end up with young lawyers not being able to work. If you can, stick at it. Try and stay there because people need good lawyers. They need that representation. I want to see the restoration of legal aid in the new parliament and hopefully we will have a Labour majority to bring it about.”

Labour plan to produce a draft report on the legal aid crisis by April next year and present a finished version at the Labour party conference in Liverpool in September 2016 that can then be used as a “thoughtful and credible justice policy” by the party.

You can read the full exclusive article from Solictors Journal here

Related

The Coming Tyranny and the Legal Aid Bill

Children are being denied justice and their human rights by legal aid cuts

Lord Bach: Civil Legal Aid – a disaster area?

Devastating blow to Grayling as judges halt his legal aid reform

Access to justice is the foundation of democracy

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“Ministers keep using the mantra that their proposals are to protect the most vulnerable when, quite obviously, they are the exact opposite. If implemented their measures would, far from protecting the most vulnerable, directly harm them. Whatever they do in the end, Her Majesty’s Government should stop this 1984 Orwellian-type misuse of language.”  – Lord Bach, discussing the Legal Aid Bill.

Source: Hansard, Column 1557, 19 May, 2011.

The Legal Aid and Advice Act 1949 was a British Act of Parliament which extended the welfare state to ensure that those unable to pay for a solicitor were able to access free legal help. It was designed and implemented to allow poor and vulnerable people to have a genuine access to justice, and was a key part of our post war settlement.

Massive funding reductions, implemented through the contested and controversial Legal Aid, Sentencing and Punishment of Offenders Act 2012, (LAPSO) removed in one fell swoop public funding for huge and crucial areas of civil work – including welfare benefits, debt, immigration, domestic violence, clinical negligence, employment rights and most housing. What this means in basic terms is the poor have no access to justice, and at a time when government is relentlessly encroaching on poor people’s freedoms and rights.

The Legal Aid Bill has been cumulatively devastating to the provision of legal services and is a savage attack on one of our fundamental constitutional principles – it seriously undermines the rule of law.  The government is ensuring that those affected the most by their draconian policies are unable to challenge government decisions. It’s now very difficult to get advice and representation, and judicial reviews are being stifled as a consequence. Yet the number of judicial reviews involving government departments has almost doubled since 2010, the government has revealed. It’s increased by 92%.

The figures were revealed in the same week that the House of Lords thwarted the government’s attempt to restrict judicial review. In particular, peers voted down Ministry of Justice attempts to create a presumption that those who apply to the court to intervene in a judicial review case should have to pay their own costs. Cameron has made it clear that he regards judicial reviews, audits, consultations, impact assessments and other democratic mechanisms that ensure government transparency, accountability, and serve as safeguards of our human rights, as “barriers to getting things done.”

Cameron has confirmed that he wants civil servants to stop conducting routine equality impact assessments for legislation, which assess the likely effect of new policies on women, disabled people and people from ethnic minorities, and to end cumbersome 12-week public consultations that delayed ministers from pressing ahead with their plans. He said that such safeguards to the rights of protected groups are  “bureaucratic rubbish”.

The legal aid “reform” was introduced at a time when the Government have implemented other radical, controversial and contentious cuts to health, education and welfare, and it is no coincidence that the legal aid Bill will curtail justice for those with legitimate needs at a time when draconian Tory policies such as the bedroom tax will most likely result in a massive increase of numbers of people needing and seeking justice and redress.

This will mean the compounding of effects of other fundamental  human rights breaches, legally unchecked, because of the profound impact of multiple, grossly unfair and unjust Tory-led policies. Each policy hitting the same vulnerable citizens, to their detriment, over and over.

As a former barrister at Tooks chambers, Emily Thornberry MP has condemned the closure of the “exceptional set”: “We were the chambers of the Guildford Four, the Birmingham Six, the Lawrence family… and we have closed because of the legal aid cuts. But this isn’t just about lawyers. The legal aid system has to begin with the vulnerable; ensuring people get a voice and access to justice, and ensuring that our legal system contains the checks and balances that we need in a democratic society.”

Thornberry, speaking last year to a packed conference in a Brighton, criticised the government for the ideological nature of the cuts it has introduced – and in particular, the attack on judicial review. She said:

“The government doesn’t want to be held accountable in the courts so they’re making it harder for people to judicially review them.  Nobody wants to be judicially reviewed, but it goes with the territory.  It’s important for people to be able to hold the government to account in the courts.”

The legal aid bill was defeated 14 times in the House of Lords and ultimately passed after a tied vote. Services and individuals feeling the impact are currently giving evidence to the House of Commons justice committee. The Equality and Human Rights Commission had warned in 2012 that: reducing the scope of legal aid in a number of areas in civil and family law will create serious practical barriers to access to justice, potentially in breach of Article 6(1) of the European Convention on Human Rights (ECHR).   

This is a government that clearly cares nothing for being held accountable for its actions, for public scrutiny and critical debate, and for justice and human rights. In fact since 2010, they have steadily eroded all of these crucial safeguards and democratic criteria through the implementation of policies that are extremely authoritarian and discriminatory.

It’s very dangerous to allow the State to decide which cases constitute the most need. In a free, democratic and fair Society, each and every single individual has equal legal worth and entitlement to opportunity to bring about legal justice. The Government choosing which cases are most “worthwhile” undermines this very premise of legal equality which is so fundamental to the notion of liberty.  Everybody has a right to take any grievances they have, which have invoked legal ramifications, to court. Everybody ought to have an absolute, inalienable right to free and fair trial in a so-called free, democratic country.

Such profoundly unjust legislated inequality is not something we expect to see in a country which was once a beacon of Western liberty. The State must fund the means of contract enforcement and free and fair trial legal costs, for those who cannot afford it.

If the State fails to fulfil this contingent function, then we simply cease to be free.

7005_494073677328832_658777491_n (1)Picures courtesy of Robert Livingstone

 


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The Coming Tyranny and the Legal Aid Bill.

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“Ministers keep using the mantra that their proposals are to protect the most vulnerable when, quite obviously, they are the exact opposite. If implemented their measures would, far from protecting the most vulnerable, directly harm them. Whatever they do in the end, Her Majesty’s Government should stop this 1984 Orwellian-type misuse of language.”  – Lord Bach, discussing the Legal Aid Bill.

Source: Hansard, Column 1557, 19 May, 2011.

The Ministry of Justice’s “reforms” (Tory-speak for cuts) to legal aid undermine the fundamental principle of legal equality and violate Article 6(1of the European Convention of Human Rights: the right to a fair trial. They reflect a truly authoritarian agenda of legislative tyranny: the reforms effectively remove legal access for many, crucially that access ultimately safeguards individual liberty against intrusion by the State, and protects us from despotic abuses of authority.

The cuts will seriously undermine access to justice and sidestep the obligation of Government accountability. The cuts will affect the most disadvantaged and vulnerable in society and allow unlawful and unfair public body decision-making to go unchallenged.

The Equality and Human Rights Commission’s analysis in 2012 warned that reducing the scope of legal aid in a substantial number of areas in civil and family law will create serious practical barriers to access to justice, potentially in breach of Article 6(1) of the European Convention on Human Rights (ECHR).

 

The cuts to the civil legal aid budget, which came in to effect from April 2013, mean many cases, including those about debt, private family law, employment, welfare benefits, clinical negligence and housing problems are no longer eligible for funding.

This is at a time when the Government have implemented other radical, controversial and contentious cuts to health, education and welfare, and it is no coincidence that the legal aid Bill will curtail justice for those with legitimate needs at a time when draconian Tory policies such as the bedroom tax will most likely result in a massive increase of numbers of people needing and seeking redress.

This will mean the compounding of effects of other fundamental  human rights breaches, legally unchecked, because of the profound impact of multiple, grossly unfair and unjust Tory-led policies. Each policy hitting the same group of citizens, to their detriment, over and over.

This sends out a truly worrying message to those of us who believed we lived in a first world liberal democracy  (one that has recognition of  individual rights and freedoms embedded in its Constitution, and one in which decisions from direct or representative processes prevail in State policies.) The promotion of equal opportunity to legal justice is the bedrock of a free and democratic society. It ought to be inclusive of all who cannot afford to be tried fairly. The reality is only a few can afford the legal costs to enforce contracts and against criminal prosecution. This profoundly unjust inequality is not something we expect to see in a Country which was once a beacon of Western liberty.

Even if we were to take a Conservative perspective, it’s still the case that the only way to wed the principle of a “pursuit of economic liberty” with wider justice is by a basic notion of equality before the law, through the equal access to justice. This means that the State must fund the means of contract enforcement and free and fair trial legal costs, for those who cannot afford it. If the State fails to fulfil this contingent function, then we simply cease to be free.

“Legal aid will continue to be provided to those who most need it, such as where domestic violence is involved, where people’s life or liberty is at stake or the loss of their home. But in cases like divorce, courts should be a last resort, not first. Evidence shows that mediation can often be more successful and less expensive for all involved.”  –  Chris Grayling.

Section 10 of LASPO (Legal Aid, Sentencing and Punishment of Offenders Act 2012) provides the new Director of legal aid casework with the power to provide ‘exceptional funding’ for cases that are out of scope. Part 8 of the Civil Legal Aid (Procedure) Regulations 2012 indicates that providers of legal services will not have delegated powers to grant exceptional funding. Instead, an application must be made to the Director for an ‘exceptional case determination’.

Section 10(3) of LASPO states that an exceptional case determination is a determination:
a) that it is necessary to make the services available to the individual under this part because failure to do so would be a breach of:

1) the individual’s convention rights (within the meaning of the Human Rights Act 1998), or
2) any rights of the individual to the provision of legal services that are enforceable EU rights, or
b) that it is appropriate to do so, in the particular circumstances of the case, having regard to any risk that failure to do so would be such a breach.

This misses a very crucial point: it’s very dangerous to allow the State to decide which cases constitute the most need. In a free, democratic and fair Society, each and every single individual has equal legal worth and entitlement to opportunity to bring about legal justice. The Government choosing which cases are most “worthwhile” undermines this very premise of legal equality which is so fundamental to the notion of liberty. Everybody has a right to take any grievances they have, which have invoked legal ramifications, to court. Everybody ought to have an absolute, inalienable right to free and fair trial in a free, democratic and liberal country.

Having cut the civil legal aid budget by £320m, the Ministry of Justice proposes to cut the criminal legal aid budget by a further £220m. Legal contracts are to be based on competitive tendering. One of the outcomes of the reform and cut to the budget is that defendants on legal aid will no longer be offered a choice of solicitor.

One of the most unfair aspects of this system is that if you are charged, the State will select a prosecutor with specialist experience in that area of the law, funded by the taxpayer. Be it a sexual offences case, a road traffic death, a murder, a drugs case or a serious assault, in each case, a prosecutor will be picked to prosecute you from a specialist team.

But when it comes to your defending yourself, however, you will be given no choice. You will either have the defence lawyer allocated by the State or you will be on your own. This cannot be right. Many legal experts have voiced their alarm at this, because it will  invariably lead to gross injustices.

Large commercial firms who are going to be paid, win or lose, will have a vested interest to encourage their clients to plead guilty, whether they are or not. At a time when people are at their most vulnerable they need a local service that listens, not a business, whose goal will be to turn around the case as fast and cheaply as possible.

The scope for dangerous consequences due to vested interests in the justice system following Justice Secretary Chris Grayling’s “reforms” is considerable, and allows potential for further erosion of legal freedom. In some cases,  the sole choice of lawyer for a defendant via legal aid will also be a representative for the organisation with an interest in ensuring a prosecution. The  tendering process – where the cheapest bid wins – would be run by companies with no record of providing legal services, resulting in a dumbing down of the profession and a race to the bottom that will mean citizens being denied access to quality legal aid.

As is always the case when private companies that are driven solely by the profit motive are involved in any service, cases will be run on the cheap by under-qualified, inexperienced, low-cost staff. The company Serco, for example, provides prison security guards. Serco is one company bidding for the legal contracts with the Legal Aid Agency. The Department of Justice has proposed to remove defendants’ automatic right to select their own solicitors to make the contracts to bidders more profitable.

I have no doubt that the Coalition wants to see access to justice removed for those affected by its nightmarish, dystopian policies. Those people affected most of all are some of our most vulnerable citizens, as the cuts have been disproportionately aimed at the poorest, at sick and disabled people, and those who are unemployed. Injustice increases and extends vulnerability, especially for those groups of people already experiencing marginalisation.

We need look no further than Clause 99 of the welfare “reform” Act to see how silencing those seeking redress is a priority for this Government. This is also about hiding the evidence of the dire consequences of the “reforms”, since large numbers of successful appeal outcomes highlight, for example, that the Work Capability Assessment (WCA) is grossly unfair and widely inaccurate. Yet despite almost 11,000 deaths, many of which have been attributed to the stress of the assessment process itself, and to people being wrongfully assessed, the Government have not even instigated an inquiry into the WCA. Had an auto-mobile been associated with such a high number of deaths, it would have been withdrawn. Yet we still have the WCA, and incredibly, no willingness for an investigation from our perennially indifferent Tory-led Government.

Those wishing to appeal wrongful decisions by Atos/The Department of Work and Pensions (DWP) that they are “fit for work” after having their Employment Support Allowance (ESA) unfairly  removed will find that this will be an almost impossible task, since their right to legal aid has been removed. The introduction of the  Mandatory Review in Clause 99 will mean that they have to wait an indefinite period without any ESA sickness benefit, or claim Job Seekers Allowance (JSA), whilst waiting for the DWP to conduct the review, with no time limit imposed on the DWP to do so.

That means signing on and declaring that you are fit  for work, and people are being told by the DWP, unbelievably, that they don’t qualify because they are not fit, or fully available for work. Others have been told that to claim JSA they need to close their ESA claim which means they cannot appeal a review decision. Basic rate ESA is exactly the same amount of money as JSA, so the Government cannot even claim this is a cost-cutting move.

And we also know that Atos are contracted by the Government to make “wrongful” decisions. 

The right to a lawyer of a persons’ choice, regardless of your income, race, gender or nationality, is an underpinning condition of a free and fair justice system. Having both a sense of, and access to choice over one’s legal representative, who is there to fight for justice is paramount to basic legal equality and liberty. When this choice is removed and legal representation is essentially imposed on a passive defendant by the State (if a defendant can still access legal aid at all, that is,) our justice system becomes unacceptably authoritarian.

And it has.

Further reading:

Guidance on the exceptional funding regime

The Public Law Project scheme to assist people with making exceptional funding applications

Government lawyers warn Justice Secretary Chris Grayling over proposed ‘unconscionable’ changes to legal aid

Cutting Legal Aid – the surest way to threaten Justice 

John Finnemore on The Now Show, discussing the injustice of the Legal Aid Bill

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Update – In response to this article, a statement has been issued from the International Human Rights Commission, who say: “The IHRC strongly condemned the Bill and asked the UK Government to consider this action, which is against the norm of human rights”.

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Pictures courtesy of Robert Livingstone

 


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The UK Government have got it wrong about our Human Rights.

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The Joint Parliamentary Committee on Human Rights has conducted an inquiry into the UK Government’s implementation of Article 19 of the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD) – the right to live independently and to be included in the community. The inquiry which began in 2011 has received evidence from over 300 witnesses.

The inquiry has highlighted just how little awareness, understanding and employment of the Convention there is by the Tory-led Government.  Very few of the witnesses made specific reference to the Convention in their presented evidence, despite the inquiry being conducted by the Parliamentary Human Rights Committee, with the terms of reference clearly framing the inquiry as being about Article 19 of the UNCRPD.

“This finding is of international importance”, said Oliver Lewis, MDAC Executive Director, “Our experience is that many Governments are of the view that the CRPD is nothing more than a policy nicety, rather than a treaty which sets out legal obligations which governments must fulfil.”

The report is particularly critical of the Minister for Disabled People (Maria Miller, at the time) who told the Committee that the CRPD was “soft law”. The Committee criticised this as “indicative of an approach to the treaty which regards the rights it protects as being of less normative force than those contained in other human rights instruments.” (See para. 23 in the report, the link is at the foot of this article.) The Committee’s view is that the CRPD is hard law, not soft law.

Dr Hywel Francis MP, Chair of the Committee, said: “We are concerned to learn that the right of disabled people to independent living may be at risk through the cumulative impact of current reforms. Even though the UK ratified the UNCPRD in 2009 with cross-party support, the Government is unable to demonstrate that sufficient regard has been paid to the Convention in the development of policy with direct relevance to the lives of disabled people. The right to independent living in UK law may need to be strengthened further, and we call on the Government and other interested organisations to consider the need for a free-standing right to independent living in UK law.”

“The Government is meant to include disabled people in making sure people have their human rights upheld. We are concerned that a part of the Law on treating people equally and fairly (Equality Act section 149) does not say any more that disabled people should be involved. This is a step backwards.”

In other words, the Tory-led Coalition has quietly removed this part of the Equality Act.

The budget of the Equality and Human Rights Commission (EHRC), which was established by the Labour Party when they were drafting this flagship policy, is being reduced by over 60%, its staffing cut by 72%, and its powers restricted by the Coalition. Provisions that are being repealed by the Enterprise and Regulatory Reform (ERR) Bill include the duty on public authorities to have due regard to the need to reduce socio-economic inequalities.

Savage Legal Aid cuts from April 2013 have also contributed significantly to creating further barriers to ensuring Equal Rights law protect us, and the Tory-driven Legal Aid Bill also contravenes our right to a fair trial under Article 6(1) of the European Convention on Human Rights.

This is not a coincidental multiple policy timeline, but rather a very coordinated political attack on potential legal challenges at a time when Tory-led severe and devastating multiple welfare and provision cuts have affected disabled people so disproportionately. The changes, which came into effect in April, will hit the same group of disabled people over and over again”.

The threats to the legal infrastructure make it all the more important to mobilise all disadvantaged groups around equality as a fundamental human right.

The Report draws attention to several significant Human Rights issues, including:

  • the need for freestanding legislation to protect the right to independent living in UK law,
  • the effect of current reforms to benefits and services on the ability of disabled people to enjoy independent living,
  • the role played by the UNCRPD in policy development and decision-making at all levels of government,
  • the need for the use of equality impact assessments,
  • the effects of devolution on implementation of the UNCRPD, and
  • hate crime

The right to independent living does not exist as a free-standing right in UK law. Although it is protected and promoted to some extent by a matrix of rights, the Committee believes that this is not enough. It argues that the Government and other interested parties should immediately assess the need for, and feasibility of, legislation to establish independent living as a free-standing right. In addition, the Committee concludes that the UNCRPD is “hard law” and that the Government should fulfil their obligations under the Convention on that basis.

The Committee finds that:

  • reforms to benefits and services (let’s be frank here, they are not welfare “reforms”, they are cuts) risk leaving disabled people without the support they need to live independently;
  • restrictions in local authority eligibility criteria for social care support, the replacement of the Disability Living Allowance with Personal Independence Payment, the closure of the Independent Living Fund and changes to housing benefit risk interacting in a particularly harmful way for disabled people;
  • people fear that the cumulative impact of these changes will force them out of their homes and local communities and into residential care.

It also finds that:

  • the Government has not conducted an Equality impact assessment of the cumulative impact of current “reforms” on disabled people. The Report urges them do so, and to report on the extent to which these “reforms “are enabling them and local authorities to comply with their obligations under the UNCRPD.
  • The Committee states that the Government should make a commitment to Parliament that they will give due consideration to the articles of the Convention when making legislation. The UNCRPD did not have a significant role in the development of policy and legislation, as is required by the Convention.

Furthermore, the Committee criticises changes to the duties of public authorities in England under the Equality Act 2010, which no longer require the production of equality impact assessments of changes in policy, nor the involvement of disabled people in developing policies which will affect them.

The Committee also expresses a major concern over a growing incidence of hate crime against disabled people and urges the Government take action to foster respect for the rights and dignity of disabled people.

Article 19 states that the Government must always ensure it “stops things getting worse.” This has NOT happened. The quality of so many sick and disabled people’s lives in this Country has been radically, significantly and DELIBERATELY reduced since the Tory-led Coalition took Office in 2010. This needs to change as a matter of urgency.

The Government’s “reforms” have led to a terrible increase in deaths amongst sick and disabled people, and we have already seen a significant rise in suicides that are directly linked with the Tory-driven austerity measures.

When we genuinely seek to improve the situation of the poorest and vulnerable, first of all we will need to spend time studying the privileged elite and their lifestyle choices of tax avoidance, their own economic lasciviousness and lack of capacity for personal and social responsibility.

We need to pay attention to Government handouts (of our money) to banks, private businesses and the wealthy: we need to appraise the dependency and culture of entitlement that these sponsored acts have fostered, and of course special focus should be on the amoral decisions and anti-social actions of the feckless, scrounging wealthy, and with particularly careful, critical scrutiny of the Government responsible for policies that re-distribute and concentrate our wealth and their advantage and power, therefore creating social divisions, inequality and poverty, perpetuating and extending it.

The Tory-led Coalition prefers to take money from the vulnerable, the sick and disabled, and hand it out to millionaires.

We need to ask why our Government refuses to instigate or agree an inquiry into the substantial rise in deaths amongst sick and disabled people, as these deaths are so clearly a direct consequence of this Government’s policies. What kind of Government uses the media to scape-goat and stigmatise sick and disabled people, by lying and inventing statistics to “justify” the persecution of some of our most vulnerable citizens, and the withdrawal of their crucial lifelines and support?

One that does not value those lives, or regard them as having an equal worth with others.

We are raising more money for the rich” – David Cameron, 12th December 2012


Further reading:

Archbishop Tartaglia adds to protest against Atos assessments which ‘trample on human dignity’

The European courts have their priorities wrong. Why aren’t they stopping the disability deaths? – Mike Sivier, Vox Political

Did They Hope We Wouldn’t Notice? Under The Smokescreen – John D Clare

The Coming Tyranny and The Legal Aid Bill – KittySJones

CRPD IS “HARD LAW” – UK PARLIAMENT

The Summary of the Report on Implementation of the Right of Disabled People to Independent Living: easy read version  and the full length report

644117_408620012540866_785481358_nMany thanks to Robert Livingstone for his outstanding art work.