Unequal before the law

By Charlotte Proudman

Women have always been at heart of the Labour party. As early as the 1900s Labour was evolving as a ‘women’s party’. Working with the moderate National Union of Women’s Suffrage Societies, Labour pushed for women’s suffrage. The introduction of the Legal Aid and Advice Act 1949 by Clement Attlee’s Labour government was vital in ensuring that women were provided with legal representation and access to justice. The basic principle advocated by Labour was that justice and gender equality are inextricably linked. Without access to justice for women, gender equality would continue to be undermined.

In an attempt to save £220 million per year by 2018, Chris Grayling, the justice secretary, has proposed further severe cuts to legal aid. The cuts will have a disproportionate affect on women and erode the steps Labour has taken in striving for gender equality. There is a real risk the cuts proposed could breach the UN committee on the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW); and as a signatory to the convention, the UK is legally required to fully implement the convention. Furthermore the UK could be in breach of Article 7 of the Universal Declaration of Human Rights, which states “all are equal before the law and are entitled without any discrimination to equal protection of the law.

The proposals are made soon after the implementation of the Legal Aid, Sentencing and Punishment of Offenders (LASPO) reforms on 1st April 2013, which cut legal aid in family, housing, education and immigration law. The LASPO reforms have damaged access to justice for domestic violence victims. For instance, many victims of domestic violence are being denied legal representation in family proceedings because the definition of domestic abuse is too narrow and the evidence required to prove they are victims of abuse is too onerous. Without legal aid, victims of domestic violence are forced to cross-examine or to be cross-examined by their abusers in court causing delays, costs and further psychological abuse for women.

Contrary to public opinion, Grayling declared “the [legal aid] system has lost much of its credibility with the public”. However, a poll from the Bar Council of over 2,000 people conducted by ComRes in May 2013 found seven out of 10 people were concerned that cuts to legal aid could lead to innocent people being convicted and 67 per cent agreed legal aid is a price worth paying for living in a fair society.

Grayling’s proposals sparked fierce opposition from judges, solicitors and barristers who took to the streets to protest. Over 16,000 responded to the government’s recent ‘transforming legal aid’ consultation. Grayling announced on 5 September 2013 that he planned to drop the most controversial proposal to introduce price-competitive tendering for criminal legal aid contracts. However, Grayling still intends to pursue other drastic legal aid cuts in a bid to save money.

Grayling’s proposals include introducing a residence test, which will mean that anyone who has not lawfully resided in the UK for a continuous 12-month period, with the exception of British armed service personnel abroad, and some asylum seekers, will no longer be eligible to civil legal aid. The residence test will restrict access to justice for thousands of women. The following three groups of vulnerable women will be priced out of justice:

  • Women trafficked into the country and sold for sex will no longer be eligible for legal aid.
  • Women who have arrived into the country through marriage to a British spouse and have found themselves abused will not be eligible for legal aid for protection and support from domestic violence.
  • Girls trafficked into the country or girls who arrive to seek asylum with false documents claiming they are adults and are treated as such by local authorities will be left without an education or accommodation. Victims will not have recourse to judicial review to challenge local authorities decisions and obtain the resources they are entitled to.

Funding for Judicial review, which holds the government and public bodies to account will be curtailed. The government’s proposed cuts to legal aid will erode the accountability of public bodies to ensure equality and fairness. Various cases and reports, such as the Stephen Lawrence case and the Scarman Report in 1981, show that gender and race, among many other inequalities occur in policing, sentencing and the treatment of prisoners. The criminal justice system is deeply ingrained with gender inequalities and without access to legal aid women will be left without recourse to the law while public bodies responsible for such victimisation will not be held to account.

In a bid to restrict legal aid for prisoners, it is proposed prisoners will no longer be eligible for legal aid unless their case directly relates to whether they should be in custody. A young mother for instance, who has given birth in prison, and been denied the right to care for her baby in a mother and baby unit would not be eligible for legal aid to challenge the decision. The child’s right and mother’s right to family life (Article 8 of the European Convention of Human Rights) could potentially be breached without scrutiny and accountability.

In opposing the government’s proposals, Labour has taken a pragmatic approach. Labour accept financial savings need to be made but unlike Grayling, Sadiq Khan, the shadow justice secretary, has drawn on his experience as a solicitor and devised counter-proposals which preserve justice, support gender equality and make financial savings. Such proposals include addressing the cause of money loss in the justice system by reviewing the courts, crown prosecution service and judiciary to cut out inefficiency and bureaucracy. Labour’s counter-proposals show that it is possible to priortise justice for all in times of austerity.

Charlotte Rachael Proudman is a barrister at 1 Mitre Court Buildings and policy adviser to Rob Flello MP, Shadow Minister for Justice

This article first appeared in the Autumn issue of Fabiana.

Charlotte is chairing ‘The Risks and Rewards of Restorative Justice: Striking the Right Balance for Women’, Tuesday 28th January, 6.45pm for 7pm, Houses of Commons, Committee Room 6 in Parliament. RSVP here.

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