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Law under lockdown: COVID-19 measures, access to justice and vulnerable people

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Measures aimed at tackling the coronavirus crisis have had disproportionate impact on some of the most vulnerable in society, solicitors’ leaders warned ahead of the renewal of emergency measures introduced under the Coronavirus Act in March.

In a new report, the Law Society of England and Wales analyses the impact of measures on the ability of vulnerable people* to access justice and legal advice during the pandemic and makes granular recommendations for the government’s six month review of the emergency measures.

“Laws and policies introduced in response to COVID-19 limited state responsibilities to an extent not seen in the UK since World War II,” Law Society president Simon Davis said.

“Those living in prisons, immigration detention or care settings, disabled people, children and victims of domestic abuse are particularly dependent on the state and have been disproportionately impacted by measures to contain the virus.

“Government must maintain access to legal advice and courts during emergencies, so citizens are able to challenge exceptional measures. But many have been unable to access legal advice, despite efforts to set up technology to replace prohibited visits in person.

“Many of the measures introduced by the act were forward-looking, anticipating strains on resources, but Law Society analysis raises questions about their ongoing necessity and highlights concerns about adverse effects on the most vulnerable and on the rule of law.

“Some of the measures reduced obligations on the state to provide public services, in social care and for children, and removed safeguards protecting people’s rights to these, at the same time as avenues for redress were suspended.”

Justice denied

The underfunded justice system has staggered under the strain of the pandemic, with court backlogs up 23% in family courts (to 52,391) and by 26% in criminal courts (to 564,249) from pre-COVID to end of August 2020.** Hearings are being listed for at least 2022 in some places, raising serious questions about whether justice can be served, particularly where those on remand are children.***

The impact of the COVID-19 pandemic on the ability of adults and children detained in custody to access justice has been severe. People have been unable to see family and legal advisors for prolonged periods of time and solicitors report eight-week waits to talk to their clients, with hearing dates sometimes offered before they have been able to take instructions.

A criminal law solicitor responding to a Law Society’s survey said: “… my 14-year-old defendant’s trial [has been] moved from June 2020 to February 2021. He is currently detained in a secure detention centre and he will have been held on remand for over 14 months of his life by the time his trial has concluded […] This is likely to cause him all manner of issues for his social and personal development. If he is found not guilty then he will have served what would be a 2.5-year prison sentence without actually having committed a crime and that is totally unacceptable.”

Remote hearings

The Coronavirus Act 2020 permitted the expanded use of video and audio hearings – particularly challenging for children and people with mental health issues, learning disabilities, language barriers, or other factors affecting their ability to understand proceedings, as well as for litigants in person.

Only 16% of solicitors who responded to our survey told us that the vulnerable clients they represent were able to participate effectively in remote hearings, indicating an unacceptable barrier to justice for this group for a range of legal issues.

Research from the University of Surrey, conducted prior to the pandemic, found defendants are more likely to be jailed in video hearings and suspects whose cases were dealt with remotely were less likely to have legal representation. This could mean that there are defendants being unfairly convicted or given harsher sentences as a result of having to undertake their trial remotely.

Access to legal advice in institutionalised settings

People living in institutionalised settings, such as prisons, immigration detention centres, mental health units or care settings have been subjected to worse and more restrictive conditions, including increased use of restraint and solitary confinement in some settings. And this at a time when they have had very limited contact with their family or their solicitor for prolonged periods, removing an essential element of external scrutiny of conditions in institutions.

Immigration

Many were left in limbo when visa processing, asylum applications and appeals were suspended. Immigration removal centres were closed to most visitors, and detentions and removals have continued, despite international travel bans. The government should review policies on detaining and removing people during pandemics, considering people’s ability to access legal advice.

More than one million people in the UK are subject to the ‘no recourse to public funds’ (NRPF) policy, including at least 100,000 children. This policy prevents migrants with leave to remain from accessing state financial assistance, such as welfare benefits. They are not able to receive income support should they be made redundant (or lose income if self-employed) and are at risk of financial destitution. The government should make the process for applying for support accessible or consider legal aid for these groups.

Housing

The economic effects of the pandemic are almost certain to cause an increase in possession proceedings, bringing problems with a lack of legal advice to the fore. Legal advice for people facing eviction is essential. For many the free legal advice provided at courts by not-for-profit organisations on the day of a possession hearing is the only advice they will get, but most providers operate at a loss and are not sustainable. Courts in Shropshire and Cornwall currently have no provision. The Law Society has also repeatedly highlighted legal aid deserts for housing advice, which compound the crisis for anyone facing eviction.

Key recommendations:

1. Adapt or remove measures not used, or used in a limited way, or which had inadvertent adverse effects.

2. Protect access to justice and legal advice for those most at risk:

Invest in courts and technology to improve access to legal advice for those in institutional settings and address the backlog of cases in family, criminal and court of protection, with particular attention to supported access for groups less able to communicate using remote access technology.
provide non-means tested legal aid for those most at risk, such as victims of domestic abuse or those deprived of their liberty in health and care or immigration settings
ensure courts continue functioning so cases are heard in a reasonable timeframe.

3. Improve information, data collection and evaluation: There are significant gaps in data and monitoring of the impacts of COVID-19 measures on the people solicitors work with. Resources should be allocated to the analysis of the data collected.

Simon Davis added: “Emergency measures must be necessary, proportionate and any limitations on access to justice must be for as short a time as possible, balancing the need to contain the virus with ensuring that those who need legal advice or the protection of the court can obtain it.

“We need more and better data, and further monitoring and evaluation of the measures that have been implemented. As we enter a second wave of this pandemic it is essential that lessons are learned so responses to this ongoing crisis are improved.

“It is vital access to justice and legal advice are maintained during times of exceptional legal measures to ensure protection for those most at risk.”


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Preserve access to justice and the rule of law and commit to a properly funded legal aid system

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Responding to news of a Justice Select Committee inquiry into the future of legal aid, Law Society of England and Wales president Simon Davis said: “Cuts to legal aid and the wider justice system have had a devastating impact on people’s ability to uphold their rights – the Coronavirus pandemic has made things so much worse.

“Our research shows swathes of the country with no or vanishingly little legal aid provision for issues such as housing and community care, as well as a dwindling number of criminal law solicitors, because the system for so long has been starved of funding.

“Growing numbers of people are navigating the justice system unrepresented – with no legal advice to help them enforce their rights.

“This means too many simply give up and live with injustice, which has a corrosive effect on people’s trust in the rule of law.

“Our legal needs survey with the Legal Services Board shows a huge 92% of adults support legal aid.

“To preserve access to justice and the rule of law the government must commit to a properly funded legal aid system so everyone can access justice, regardless of wealth or status.”


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The rule of law is not negotiable

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Responding to news of a Justice Select Committee inquiry into the future of legal aid, Law Society of England and Wales president Simon Davis said:

“The rule of law is not negotiable. This why I wish to echo the concerns raised today in Parliament by the chair of the Justice Select Committee.

“Our commitment to the rule of law is key to attracting international business to the UK and to maintaining faith in our justice system.”


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Solicitors rise to the challenge

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“All across the country, solicitors have worked tirelessly for their clients to ensure the highest standard of service. I am proud of the role solicitors have played to keep the wheels of justice turning through this extraordinarily challenging time.”

Simon Davis, President of the Law Society of England and Wales


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Mental capacity and disability legal aid heavyweights join forces

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Nicola Mackintosh QC (Hon), currently Sole Director of Mackintosh Law, the legal aid firm specialising in mental capacity and disability law, is to be joined by Zena Soormally Bolwig as Co-Director of the firm on 29 June 2020.

The Directors

Nicola said:

‘I am absolutely thrilled to announce that Zena is joining me at Mackintosh Law as Co-Director. It will be a privilege to work closely with Zena to build on the firm’s already well established reputation as one of the leading mental capacity, Court of Protection and community care specialists in the disability justice arena.

These are unprecedented times. There has never been a more important time to devote our legal skills to representing some of the most vulnerable people in society, and securing genuine access to justice for everyone. Zena’s arrival will ensure that Mackintosh Law’s proven and impressive track record for clients in this specialist field will be cemented for future years, going from strength to strength.’

Zena said:

‘I’m incredibly proud to join Nicola and the specialist team at Mackintosh Law. We both share the same passion and desire to provide exceptional service and advice in the specialist area of mental capacity and disability law and I am looking forward to bringing my experience to the team.

In light of the ongoing pandemic and the increasingly sparse availability of legal aid advice, there has never been a greater need for dedicated specialists in this area. Together, Nicola and I will continue to ensure that those who lack capacity or live with disability have access to the advice and support they need.’


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4 June 2020 We can’t walk the walk, but we are still stepping up to the challenge

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Team Macklaw are undertaking the London Legal Walk on 8 June but with a twist as people across the country undertake individual walks and instead take the 10,000 steps challenge, whilst observing social distancing measures.

This is all in order to raise money for legal advice charities. There has never been a more important time to support people in need of justice, with the cuts to legal aid and the reducing numbers of advice outlets. People desperately need help from specialists who can advise them properly.

You can access more information about the London Legal Support Trust here – http://www.londonlegalsupporttrust.org.uk/

If you are able to support us, our donations page is here:

https://uk.virginmoneygiving.com/MackintoshLaw20


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4 June 2020 Racism has no place in our society

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“George Floyd’s death has caused outrage around the world and exposed injustices and inequalities.

“We will continue to promote diversity and inclusion in the legal profession, combat any instances of racism or prejudice in the sector and stand against injustice.

https://www.lawsociety.org.uk/news/press-releases/racism-has-no-place-in-our-society/


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15 May 2020 – The Lord Chancellor urged to use LASPO powers to save firms

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The Legal Aid Practitioners Group has warned that without further action, many firms will fold over the next few months ‘and by Christmas there will not be a provider base left to underpin the justice system that this country needs and deserves as it tries to climb out of this crisis’.

Read the full article here:

https://www.lawgazette.co.uk/practice/buckland-should-use-laspo-powers-to-save-firms/5104299.article?utm_source=gazette_newsletter&utm_medium=email&utm_campaign=Women+lawyers%27+Covid+struggles+%7c+Burford+abandons+claim+%7c+Mother+in+law_05%2f15%2f2020


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Covid 19 – update 19 March 2020

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We are continuing to operate, using remote working where possible. All of the team are picking up emails and we are continuing to represent our clients and provide the usual excellent standard of service as far as we are able to do so.

Phone calls will be collected by our message taking service and messages will be emailed to the relevant member of our team for action.

We are constantly reviewing the latest advice from Government and Public Health England and will be taking further appropriate measures. The health and safety of our staff, visitors and clients is our priority over the coming weeks.

In accordance with guidance, save where absolutely essential, we will not be carrying out face to face visits to vulnerable clients and most if not all hearings will be by phone or videolink where facilities are available.

We will continue to monitor the rapidly evolving situation and should our plans change, we will continue to provide updates on our website homepage.

Please email your usual contact if you have any questions or need to let us know how best to remain in contact with us.

Above all, please take care and look after yourselves and others in these times of turmoil.

Nicola Mackintosh QC (Hon)
Sole Director
Mackintosh Law


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Left-behind communities unable to challenge poor care

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More than 37 million people in England and Wales live in a local authority area without a single community care legal aid service, including over 7.5 million people aged 65 and over, the Law Society said as it published analysis revealing catastrophic legal aid deserts for community care across the country.

A new interactive map shows the vanishing number of providers in each local authority area. 79% of local authorities now have no publicly funded legal advice for vulnerable people to challenge local authority community care arrangements.

The situation is even worse than the map suggests because many of these community care legal aid lawyers provide advice in a subset of cases known as Court of Protection work, in which the client may be deprived of their liberty because they can no longer make decisions for themselves.

“A cared-for person fighting to get vital welfare services or remain in their own home will tell you legal aid is a lifeline,” Law Society president Simon Davis said.
“But almost two thirds of us live in a local authority area without a single community care legal aid service, so all too often the most vulnerable people – who may be elderly, housebound, disabled – cannot get the expert legal advice they desperately need when their care arrangements fall short.

“Anyone trying to resolve a care issue is likely to need face-to-face professional advice urgently and be unable to travel long distances to get that tailored advice.”
Catastrophically low rates of pay for exceptionally complex, sophisticated work are forcing legal professionals across the country to withdraw from legal aid as the work is simply not economically viable.

The fees government pays for civil legal aid provision have not increased since 1994, equating to a 49% real-terms reduction. On top of this, fees were cut by a further 10% in 2011.
“Inadequate community care could leave a disabled person without the support they need to dress or prepare food; an elderly person might not be able to access their community or challenge the closure of a care home,” Simon Davis said.

“The combined knock-on of shrinking local authority budgets and an advice sector decimated by legal aid cuts mean the demand for advice in community care law far outstrips supply.
“Our members tell us all too often they are having to make the heart-breaking decision to turn away people because they simply do not have the capacity to take cases on.
“Fewer and fewer solicitors are choosing to go into this area of work that requires in-depth knowledge of the welfare sector, sophisticated understanding of the law and highly developed interpersonal skills.

“If the government does not wake up to the impending catastrophe I fear this specialism could disappear altogether, leaving society greatly diminished and disempowered.

“The government must make urgent changes so everyone who has a right to state-funded legal advice can get the advice they need when they so desperately need it. Legal rights are meaningless if people cannot enforce them.”

http://lawsociety.org.uk/legal-aid-deserts-map


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