The Recent Changes to LASPOA 2012 - Essay Example

Recent changes to LASPOA are a threat to the rule of law Summary of the key points made in Fordham, M., Jaffey, B. and Mehta, R. (2013) The recent changes to LASPOA 2012 provide that for an individual to qualify for legal aid, they must first be “lawfully resident of the UK, Crown Dependencies or British Overseas Territories” (Fordham, Jaffey and Mehta, 2013:219). Secondly, the person is required to have continuously resided within any of the specified territories for 12 months, before the application of the legal aid. The introduction of these changes in LASPOA 2012 goes against the provisions of the Human Rights Act 1998, the EU law and the common law, as regards to the equal access to justice for all individuals within the United Kingdom jurisdiction (Fordham, Jaffey and Mehta, 2013:222). The changes have singled out the reason for the introduction of a resident test as being the need to ensure the delivery of a justice system that is more credible and efficient to the UK citizens. However, when that provision is closely assessed, it presents more problems than anticipated. In fact, when this new change is assessed based on the provision of the above three laws, it may not pass the justification. The major reason for the introduction of the two-part residence test as a requirement for the qualification for accessing legal aid is to single out foreigner within UK and its overseas territories jurisdiction, and then deny them an opportunity to equal access to the justice system, similar to the UK citizens. Summary of the key points made in Bindman, G. (2013) The stability of the United Kingdom justice system is tempting to assume that it bears permanency, since it has been entrenched for long enough. Nevertheless, the recent changes introduced in LASPOA 2012 threaten this stability, through introducing legal measures that are contrary to the spirit and letter of the rule of law. When summed up together, the changes have introduced restrictions to the access of legal aid and increased the fees and the procedural hurdles for those who seek to use the courts to defend their interests (Bindman, 2013:6). In addition, the changes have introduced the use of secret evidence that precludes challenge, increased the surveillance to and access of personal and private information, and reduced the damages payable to people who have successfully defended their claims through the justice system (Bindman, 2013:6). Overall, the government has struck a major blow to those who seeks to uphold the rule of law. The definition of the rule of law requires that all individuals are granted an equal chance and opportunity to access the justice system. However, the introduction of the recent changes in the LASPOA 2012 clearly goes against this provision, owing to the fact that it makes it harder for those without material wealth to access the justice system equally with those who are well-off. The determination of a case in court mainly depends on the nature of presentation and arguments during the day of trial (Bindman, 2013:6). This in turn depends on the nature of prior investments made in preparations, as well as the quality of the representation. Therefore, it is only those with adequate access to quality legal services who will mostly have an upper hand in an adversarial justice system, like the one applied in the UK. Analysis of how recent changes to LASPOA 2012 are a threat to the rule of law The changes that have been introduced in the LASPOA 2012 are clearly a threat to the rule of law. First, the definition, letter and spirit of the rule of law require that laws must protect the citizens against the arbitrary and unjust actions of the government (Bindman, 2013:6). In this respect, there lacks no good justification for why the government should single out the non-nationals or the national that have resided in the United Kingdom for a period less than 12 months, and deny them equal access to justice similar to the one enjoyed by the UK nationals. The introduction of a two-part residence test assess is an arbitrary action of the government against its people, since it is an action that cannot be justified under any provisions of the law (Fordham, Jaffey and Mehta, 2013:222). This being the case, it therefore follows that the LASPOA 2012 has arbitrarily introduced a requirement that will be detrimental to the non-nationals residing in the UK, and to the extent that it cannot provide for any grounds for the differential treatment between the nationals and the non-nationals, it remains an arbitrary law invocation (Fordham, Jaffey and Mehta, 2013:224). Thus, since the rule of law requires the protection of the people against the arbitrary actions of the government, and considering that the introduction of the residence test cannot justify the basis for the differential treatment between the UK residents, it remains an arbitrary action and a violation of the rule of law. Further, the rule of law provides that every individual shall have an equal access to justice. However, under the changes introduced in the LASPOA 2012, the principle of the equal access to justice has been violated in various ways. First, through the restriction of the access to the legal aid, the poor and other category of people like the immigrants who have no capacity to fund private legal representation have been rendered incapable of accessing the justice system equally to those who are well-off (Bindman, 2013:6). The provision for the legal aid is recognized under the EU law as a basic and fundamental right for all people residing within the EU countries. Thus, the restriction of the access to legal aid to only certain category of cases or individuals means that some of the individuals affected by certain cases, yet unable to pay for private legal representation, will be adversely affected. Under an adversarial justice system like the one operating in the UK, the nature of the presentation and the quality of representation of an individual’s case during the day of trial highly determines the outcome of the case (Bindman, 2013:6). Thus, to the extent that the poor and the other category of the non-nationals in the UK are restricted from accessing legal aid, they may not have access to quality representation in courts, which will automatically give the well-off in the UK society an advantage in accessing and exploiting the justice system. This is a violation of the rule of law, which requires that all individuals will have an equal access to the justice system (Bindman, 2013:6). Thus, the restriction of legal aid requirement provided under the recent changes in LASPOA 2012 threatens the rule of law. Secondly, through the introduction of the differential treatment of the non-nationals from the nationals in the access of the legal aid, the recent changes in LASPOA 2012 have violated the rule of law, requiring an equal access to justice for all people. According to Article 18 of the ECHR rights, no country should discriminate against individuals on the basis of their social background or nationality (Fordham, Jaffey and Mehta, 2013:223). The right to access justice includes the right to have legal representation. However, through the introduction of the residence test under the recent changes in LASPOA 2012, the non-nationals in the UK are targeted for discrimination, since they can be denied legal aid on the basis of their nationality. The fact that an individual is a foreigner does not indicate a lesser need or a lesser justification for equal access to the courts (Fordham, Jaffey and Mehta, 2013:220). The denial of equal opportunity to access to the courts for whatever reasons goes against the intention of the rule of law, requiring that all people shall have equal opportunity to access the justice system. Therefore, the recent changes in the LASPOA 2012 are a threat to the rule of law. The rule of law requires that the “law must be accessible and, so far as possible, intelligibly clear and predictable” (Bindman, 2013:6). This simply means that an individual should be able to predict the outcome of a legal process, through understanding the law. Thus, all legal issue should be addressed through the application of the law, as opposed to any form of discretion. However, the changes introduced in the LASPOA 2012 have introduced unpredictability of the law, through introducing categorizations of individuals and nature of cases that qualify for legal aid, while eliminating other categories that were previously qualified. This introduces a major risk of violation of the rule of law, where the funding of legal aid may now be issued on the basis of discretion (Fordham, Jaffey and Mehta, 2013:224). Further, the rule of law provides that the state must facilitate and provide the means of resolving disputes through the law, “without prohibitive cost or inordinate delay” (Bindman, 2013:6). However, the fact that the LASPOA 2012 has increased the procedural hurdles involved in accessing legal aid, while at the same time increasing the cost of accessing legal representation through requiring individuals to fund such legal representations privately, means that the changes have introduced both prohibitive costs and inordinate delays to the access of justice in UK. This in itself is threat to the rule of law. References Bindman, G. (2013) ‘Justice in the balance’, New Law Journal, vol. 163, no. 6, pp. 6-7. Fordham, M., Jaffey, B. and Mehta, R. (2013) ‘The legality of the proposed residence test for civil legal aid: joint opinion’, Judicial Review, vol. 18, no. 3, pp. 219–22. Read More