THIS month marks the 70th anniversary of the Legal Aid & Assistance Act 1949, introduced by the Labour Party, which set up the legal aid system in Britain. Legal aid may be three score years and ten but it would not be in the interests of the public for it to fly away. Legal aid workers continue to struggle to provide legal aid following the devastating cuts imposed by the coalition government in 2012. Fortunately Labour plans a golden age of law centres and restoration of vital legal aid services.
The Justice Alliance, set up in defence of legal aid, has marked the anniversary by publishing Legal Aid Matters. 70 contributors, including legal aid lawyers and individuals receiving legal aid, celebrate 70 cases in which legal aid made a difference. I write about the case of R v Limbuela ex parte Secretary of State for the Home Department.
In 2002, Blair’s Labour government had passed legislation which deprived asylum-seekers without children of any support whatsoever if the Home Office decided that they had not claimed asylum “as soon as reasonably practicable” after their arrival in Britain. As a result, asylum-seekers had no accommodation and no money. Some of them slept on the streets and begged. Some received a small amount of support and overnight accommodation from overstretched charities.
Three asylum-seekers, who had all made their asylum claims on the day of their arrivals but had been told that this was not “as soon as reasonably practicable,” and that they should have claimed hours earlier, challenged this Act with the benefit of legal aid. They argued that the restriction on providing support amounted to inhuman or degrading treatment, contrary to Article 3 of the European Convention on Human Rights.
The House of Lords agreed. They said that sleeping in the street on its own might not be inhuman or degrading treatment, but where someone has no resources, no alternative sources of support (not least because asylum-seekers were prohibited from working) and is denied shelter, food and the most basic necessities of life by the state, that amounts to inhuman or degrading treatment. The case is important partly because it meant that asylum-seekers would not, literally, be starving on the street. But also because it extends the concept of inhuman or degrading treatment into economic hardship.
Other cases assisted by legal aid, and celebrated by the Justice Alliance, extended the rights of women to resist domestic violence. When legal aid was previously available for divorce cases, that protected women from being cross examined by their violent partners. Now, women regularly face their unrepresented abuser in Court.
The infamous miscarriage of justice cases were all exposed using legal aid. The cases of the Guildford Four, the Maguire Seven, the Birmingham Six, the Tottenham Three and the M25 Three all took years of hard work and dedication by their lawyers, who would simply not have been able to pursue that work had they not been paid. Innocent people would have remained in prison, convicted of very serious crimes which they had not committed.
Legal aid helped to establish lesbian and gay rights well before Parliament legislated, establishing that long-term gay partners could succeed to a tenancy. Legal aid also funded sex discrimination cases, notably establishing that sacking a woman because she was pregnant was unlawful.
The most compelling cases are those reflecting the reality of everyday poverty or abuse. Jenny Beck, family lawyer, tells us about Shamina’s case where she had helped Shamina and her children escape from over 15 years of physical, sexual, psychological and financial abuse by her husband. She says “the remarkable issue in this case is that it is unremarkable.”
Tony Rice describes how he was facing eviction. His disability benefit had stopped, he had been unable to deal with the consequences and so rent remained unpaid. His lawyers, funded by legal aid, took 15 months to unravel the DWP’s decisions, restore disability benefit and repay the rent, so he was saved from eviction.
Many of these cases would no longer be funded by legal aid, as it was severely cut by the coalition government in 2012. It is not available for most employment, housing and family cases. The worst cut of all was withdrawing legal aid from welfare benefits advice, since those contesting DWP decisions cannot afford to pay for advice. Even where legal aid is still available, there is a very strict means test, so that most people will not qualify for legal aid (but still cannot afford litigation costs). And the Legal Aid Agency makes some very questionable decisions as to what cases deserve legal aid.
A recent Supreme Court case highlighted how the Legal Aid Agency can make wrong decisions, potentially depriving people of their rights. Ms Samuels was a private rented tenant receiving benefits. Her housing benefit was significantly less than her rent, leaving her to find an additional £151.49 per month towards her rent from her other benefits. She could not afford that, fell into rent arrears and was evicted.
When she asked Birmingham City Council for help, it decided that she could have afforded to pay £151.49 from her benefit and so there was no obligation to house her. She appealed eventually to the Supreme Court. The Supreme Court decided that she had spent her benefits on reasonable living expenses for herself and her children and therefore could not have found the £151.49 extra per month. The council were under a duty to help her find accommodation. This is an important case establishing that councils cannot wash their hands of people who cannot afford to pay their rent from their benefits.
However, the Legal Aid Agency decided three times that Ms Samuels had no arguable case. Her lawyers took a chance. They did the work free, applying to the Supreme Court for permission to appeal. Even after the Supreme Court had granted permission, agreeing that Ms Samuels had an arguable case, the Legal Aid Agency still refused and had to be threatened with legal proceedings before legal aid was granted.
In the end, five Supreme Court judges unanimously decided that Ms Samuels had been right, and that councils should not penalise people who cannot afford to pay rent shortfalls from non-housing benefits. This was a decision that benefits a significant number of people, yet the Legal Aid Agency spent three years refusing to help.
Labour promises to revoke many of the coalition government’s cuts to legal aid: restoring legal aid to housing, welfare benefits and family cases. It also promises to usher in a “golden age of law centres,” prioritising legal aid funding towards early legal advice which tends to resolve legal problems early on. Early legal advice is cost-effective and prevents people having to go through the horrors of litigation.
Legal aid is a necessary plank of the welfare state. Decimated by the coalition, Labour needs to restore it in order to achieve access to justice.
Liz Davies is a legal aid barrister and an honorary vice-president of the Haldane Society of Socialist Lawyers. She writes this column in a personal capacity.
Liz Davies is a Labour Party activist and housing rights barrister. Member of Southampton Test CLP and Unite the Union. Previously secretary for Hackney North CLP (2017–2018). Co-author Housing Allocation and Homelessness law and practice (Luba, Davies, Johnston and Buchanan, 2018, LexisNexis) and Honorary Vice-President of the Haldane Society of Socialist Lawyers. Her professional profile is here. She cannot respond to queries about legal cases through this website.Read full bio