LASPO made legal aid available for victims of trafficking to bring compensation claims against those who exploited them, for example as employment matters, even though such claims would otherwise be out of scope – see paras 32 and 32A of Part 1 of Schedule 1 of LASPO.
However, when LASPO came into force, the LAA didn’t include such claims within a mainstream contract category, instead bundling them into the “miscellaneous” category along with around 20 other types of case.
2013 Civil Contracts gave contract holders the right, under their schedules, to start just 5 miscellaneous Legal Help cases each year. Later versions of the contract haven’t improved the situation.
The result is that organisations bringing these sorts of cases are severely limited in their ability to do so. It’s hard to go straight to a certificate – either for investigative or full representation – without carrying out at least some preliminary work under Legal Help first. These are not straightforward or simple cases. The categorisation of them as “miscellaneous”, and the limiting of the numbers of such cases per year, put an effective barrier in the way of cases being taken on.
So the Anti-Trafficking and Labour Exploitation Unit – ATLEU – sought judicial review. Permission was granted by Blake J, who said
It is arguable that the absence of any tender scheme for specialist legal assistance for victims of trafficking and labour exploitation in employment, the limit of miscellaneous matter starts to 5 per annum that any holder of a civil contract may bring and the absence of employment claims within the scope of LASPO together amount to a breach of the duty to make legal aid available to victims of trafficking.
The case was listed for trial last week, but shortly beforehand the Lord Chancellor offered a review of the effect of these provisions, and so the case settled.
The review, to be carried out by the MoJ and LAA, is to identify:
- whether there are barriers to access to legal aid;
- if so, what are the causes; and
- what steps need to be taken to ensure adequate and effective access to Legal Help
The focus of the review is on access to Legal Help and the ability to assess whether to bring a claim, rather than on the ability to do so (which would be funded by a certificate). The review will be carried out urgently, to report by June, and the report will be published. Ministers will implement any recommendations as soon as practical thereafter.
Our thanks to ATLEU and their representatives for bringing this important case to our attention. ATLEU was represented pro bono by Freshfields and Shu Shin Luh of Garden Court. As part of the settlement, the MoJ will pay a £12,000 pro bono costs order to the Access to Justice Foundation.