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No Mad Laws campaign
The No Mad Laws campaign aims to highlight the disastrous effect that the coalition government’s legal aid and judicial review reforms will have on Gypsy and Traveller communities. The campaign’s steering group describes the impact of these changes.
Judicial review
Most judicial review claims are settled successfully before the application for permission is heard. Yet the government has now brought into force provisions which mean that legal aid providers will not be paid on a judicial review claim unless either permission is granted, or the matter is settled before permission without costs being awarded to the claimant and then the Legal Aid Agency exercises its discretion and decides to pay the provider. Thus, legal aid providers will have to take such claims at risk and are unlikely to do so unless the merits of the claim seem very good. Gypsies and Travellers may need to challenge unlawful decisions by local authorities concerning, for example, stop notices, direct action against a site without planning permission or eviction of an unauthorised encampment.
Evictions of unauthorised encampments
There is a severe shortage of lawful caravan sites for Gypsies and Travellers in England and Wales: many still have to resort to unauthorised encampments on public land or the roadside. Before the Legal Aid, Sentencing and Punishment of Offenders (LASPO) Act 2012 came into force in April 2013, a Gypsy or Traveller camped on public or local authority land, who wished to challenge the legality of the public body’s decision to evict, could do so by defending possession proceedings in the county court.
However, the LASPO Act excluded trespassers such as Gypsies and Travellers residing on unauthorised encampments from scope. As a consequence, Gypsies and Travellers who have reason to defend possession proceedings on the ground that the decision to evict was unlawful, now have to lodge a judicial review claim in the High Court and seek a stay of the county court action; this increases delay and expense, assuming of course that they can find a legal aid provider who is still willing to take on such a case.
Mobile Homes Act 1983
In 2011, the Westminster Government complied with the European Court of Human Rights’ judgment in Connors v UK App No 66746/01, 27 May 2004, and gave Gypsies and Travellers living on local authority caravan sites security of tenure by amending the Mobile Homes Act (MHA) 1983 so that it covered such sites. The MHA as amended also gave other important rights concerning, for example, written statements, pitch fee reviews, the resiting of mobile homes, the right to have a residents’ association, etc. In 2013, the Welsh Government followed suit. However, when the LASPO Act came into force, it restricted the scope of legal aid to possession actions and serious disrepair cases with the result that Gypsies and Travellers living on public run sites are unable to take action to enforce their new rights.
Exceptional funding
During the passage of the LASPO Bill through parliament, the government placed great emphasis on the provision of exceptional funding when defending its proposals to limit the scope of legal aid. The government stated that exceptional funding was, in part, intended to ensure that the failure to provide advice and representation to someone would not result in a breach of article 6 (right to a fair hearing) of the European Convention on Human Rights, and that it would act as a vital safety net.
However, Ministry of Justice statistics show that the overwhelming majority of exceptional funding claims are refused.
1Ad hoc statistical release: legal aid exceptional case funding application and determination statistics: 1 April 2013 to 31 March 2014, April 2014, available at: www.gov.uk/government/statistics/ad-hoc-statistical-release-covering-exceptional-case-funding-in-legal-aid-statistics. It is absolutely clear to us that, in many of these cases, article 6 is breached because clients are simply unable to represent themselves at court hearings and there is no equality of arms.
Campaign recommendations
•The legal aid regulations relating to the payment for work done on judicial review claims pre-permission should be withdrawn and legal aid should be reinstated for judicial review.
•Trespassers should be brought back within the definition of ‘loss of home’ for the purposes of legal aid.
•As proposed by the Low Commission on the Future of Advice and Legal Support, in its report, Tackling the advice deficit. A strategy for access to advice and legal support on social welfare law in England and Wales, housing law should be brought back within scope for legal aid and there should be an urgent radical overhaul of the provision of exceptional funding.
•■ The campaign’s petition is available at:
http://you.38degrees.org.uk/petitions/no-mad-laws. ■ The No Mad Law campaign steering group comprises: Cathay Birch, Gypsy campaigner, Jo Gregson, South West Law Solicitors, Chris Johnson, Community Law Partnership, Dr Simon Ruston, planning consultant and Marc Willers QC, Garden Court Chambers.
Justice Committee holds second LASPO Act evidence session
On 2 September the Justice Committee, chaired by Sir Alan Beith, heard its second evidence session about the impact of changes to civil legal aid under the Legal Aid, Sentencing and Punishment of Offenders Act 2012 as part of its ongoing inquiry (see June 2014 and September 2014 Legal Action 8 and 6 respectively). The witnesses were as follows:
•Dave Emmerson, co-chairperson of legal aid committee, Resolution;
•Jane Robey, director, National Family Mediation;
•Susan Jacklin QC, chairperson, Family Law Bar Association;
•Nicola Jones-King, co-chairperson, Association of Lawyers for Children;
•Clare Laxton, public policy officer, Women’s Aid;
•Emma Scott, director, Rights of Women; and
•Phillippa Newis, policy officer, Gingerbread.