Ethnic minority communities are bearing the brunt of legal aid cuts
Cuts to legal aid – which helps people meet the cost of legal advice, family mediation and representation in court – are hitting Black and minority ethnic communities the hardest and the situation is set to get worse. Angela Jackman KC (Hon) explains why urgent action is needed.
I remember well the numerous worried debates that preceded the implementation of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO). Having practised at Hackney Community Law Centre for 13 years and worked at the coal face of delivering social welfare law to one of the most diverse communities in England, I knew this was really going to hurt. The cocktail of fixed fees, removal from scope of many vital areas of welfare law and lowering of the financial threshold through swingeing cuts spelt doom for the people who are most reliant upon legal aid.
Social welfare law advice, by definition, is most needed by communities of lower economic status. Areas including immigration and asylum, debt, housing, welfare benefits, employment and education significantly impact the quality of life of communities with less economic power, who in turn are in greater need of legal advice to enforce their rights.
The Runnymede Trust report Justice at Risk highlighted LASPO’s adverse impact on the quality of immigration and asylum advice services. Whilst it is obvious that the reduction in legal aid for immigration and asylum advice is most likely to directly and disproportionately impact Black and minority ethnic communities, how else has LASPO affected provision of legal advice in other social welfare areas?
‘A dire state of affairs’
According to the Legal Aid Agency’s diversity figures for 2021-2022, a disproportionately higher number of individuals from Black and minority ethnic communities use legal help and Exceptional Cases Funding (ECF).
Its report notes: ‘It is difficult to draw firm conclusions from some of the ethnicity data because of the high proportion for which ethnicity is unknown in most areas. Nevertheless, the proportion of legal help and ECF clients reporting as Black/Asian/Minority Ethnic (BAME) is much larger than in the general population. This may reflect the fact that controlled legal representation (CLR) for immigration is included within legal help and the majority of ECF grants are for immigration work.’
Notably, much more precise gender and disability statistics are provided, including for civil representation. Whilst there are challenges caused by ethnicity categorisation and the unknown constitution of those who fall within ‘unknown’, I believe this is an issue that needs to be robustly addressed to enable more accurate diversity reporting and analysis.
A 2020 report by the Advice Services Alliance, Advising Londoners, concluded there were identifiable gaps in advice services for Black and minority ethnic communities in the capital. In September 2021, the Law Society report Civil legal aid: a review of its sustainability and the challenges to its viability detailed, inter alia, that across England and Wales:
- 65 per cent of the population have no access to an immigration and asylum legal aid provider.
- Almost 41 per cent do not have a housing legal aid provider in their local authority area.
- 80 per cent do not have access to a welfare legal aid provider and, where there is a provider, 14 per cent have access to only one provider.
When considering this dire state of affairs, it is not lost upon me that in 2013 there were 97 law centres in England and Wales providing free advice and support in welfare law areas yet by 2019 this had reduced to 47. The current number is 43.
Numerous legal aid firms have had to close departments or shut down completely as the crippling impact of fixed fees and removal from scope of so many areas meant it became financially non-viable to continue. This has all contributed to the creation of ‘advice deserts’ and lack of dedicated advice services for Black and minority ethnic communities. In addition, the lowered threshold for legal aid introduced by LASPO means people with lower incomes who fall outside the ungenerous thresholds yet have a greater need for social welfare advice are most likely to struggle to fund private legal services.
As a disproportionately higher number of legal aid service-users are from Black and minority ethnic communities, there is no need to scratch our heads wondering who is most adversely affected by the cuts.
The impact on communities
What does this mean for those communities? The situation is bleak: it is abundantly clear these communities’ advice needs are not being met.
Research by ClearView in 2020 found that over 75 per cent of Black and minority ethnic people did not believe their human rights are equally protected, compared to white counterparts, while 85 per cent were not confident they would be treated the same way by the police as their white counterparts.
These views are easily justified in light of the following reports, which have all exposed systemic institutional failure to protect the human rights of Black and minority ethnic people:
- 1999: MacPherson Report (Stephen Lawrence and the Metropolitan Police)
- 2017: Angiolini Review (deaths and serious injury in police custody)
- 2017: McGregor-Smith Review (issues in the workplace)
- 2017: Lammy Review (criminal justice system in England and Wales)
- 2017: Race Disparity Audit (treatment across public services)
- 2020: Windrush Lessons Learned Review (Home Office)
The Bill of Rights and the Public Order Bill
Whilst the parliamentary timetable for the on/off Bill of Rights is unclear, the underlying intention is to restrict people’s ability to bring human rights claims against public bodies and limit the positive obligations upon those bodies. Given that 75 per cent of Black and minority ethnic people already believe that their human rights are not equally protected, the proposed bill, if enacted, can only exacerbate this issue.
Meanwhile, freedom of assembly and the right to protest are fundamental constitutional rights in a democracy. Yet the Public Order Bill attacks them through its intention to undermine the enshrined right to peaceful protest.
In England and Wales, Black and minority ethnic people are already seven times more likely to be stopped and searched by the police. They are likely to be disproportionately impacted by the bill’s expansion of stop and search. Research shows that more punitive measures are more likely to be imposed on Black and minority ethnic communities, so they are more likely to be affected by the bill’s Serious Disruption Prevention Orders, which include the wearing of an electronic tag to stop an individual from a) protesting b) attending specified places and c) congregating with specified people.
The bill’s provisions are likely to result in litigation concerning breaches of Article 10 (freedom of expression) and Article 11 (freedom of assembly and association) of the European Convention on Human Rights. Challenges will potentially fall within scope of public funding, but means-testing will still exclude many individuals of low means.
'It matters because of the historic inequalities faced by communities such as the Windrush generation'
The government has a responsibility to ensure all sections of the community have confidence in the rule of law, including, vitally, that they have the same access to legal redress as their counterparts. That is not the case for Black and minority ethnic communities and it matters because of the historic inequalities faced by communities such as the Windrush generation.
As a member of the Law Society’s Human Rights Committee I am in full accord with the recommendations of our August 2022 report, which urgently calls on the government to independently review the sustainability of the legal aid system and ensure every area in England and Wales has an acceptable number of legal aid providers.
The lack of comprehensive national legal aid provision inevitably has a greater impact on those most reliant upon it to access and enforce fundamental civil rights. The Legal Aid Agency needs to improve its data on ethnicity. In addition, it is my view that the public sector equality duty is engaged and needs to be urgently addressed by the government, especially given the cost-of-living crisis, the Bill of Rights and the Public Order Bill, which will have yet further disproportionately adverse impact on the very same disenfranchised communities.
Angela Jackman KC (Hon) is a partner at Irwin Mitchell and a member of the Law Society’s Human Rights Committee
The views and opinions expressed in this article are those of the author and do not necessarily reflect those of the Runnymede Trust
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