• Ineligibility for legal aid due to income or
type of offence
• lack of awareness of rights to legal aid
• lack of organisation

The judges and lawyers interviewed for the report were concerned that unrepresented defendants are at a disadvantage, and only differed in their views of how significant that disadvantage was.  It takes time, skill and confidence to deal with unrepresented defendants well. Unfortunately, many lawyers felt that some colleagues and court staff do not go the extra mile and, even when they do, cannot make up for the lack of a defence advocate.

There are no official figures for the number of unrepresented defendants in the magistrates’ courts, though all interviewees felt numbers had recently increased. Official statistics from the Crown courts indicate numbers have remained steady at around 6% over the last five years. The lack of data means unrepresented defendants in the magistrates’ courts are invisible in policy terms. But the report found that the impact on court staff, judges and advocates of dealing with unrepresented defendants is immense – cases are taking longer, and explanation skills and patience are
being tested. Many advocates doubt there are genuine savings to the state in denying legal representation to reluctant defendants, but the absence of a cost benefit analysis means no one knows for certain. What is clear is the cost to justice – interviewees had witnessed unrepresented defendants not understanding what they were charged with, pleading guilty when they would have been advised not to, and vice versa, messing up cross examination of witnesses, and getting tougher sentences because they didn’t know how to mitigate. Most advocates felt more and better access to legally aided lawyers was the only answer.

Certainly, that is one potential remedy, but the report also recommended that the whole system needs to be looked at.  The report concludes that if justice is to be delivered there are two options – to fund lawyers for all defendants who want or need them, or to change the whole system so that the needs of unrepresented defendants are integral.

In March the Modern Slavery Act 2015 received Royal Assent, as one of the last pieces of legislation to be passed by the current government.  Its entry into law marked the end of an intense period of parliamentary activity and impassioned debate, and the start of a period of reflection on what has been achieved and what was left behind.

The government has emphasised the number of concessions it made in securing the passage of the Bill, and indeed important amendments were made.  These include the insertion of a “Transparency in supply chains” provision, which requires companies with turnover above a certain (undefined) threshold to report on what they are doing to address slavery in their supply chains, and aims to encourage corporate responsibility. Also, a commitment to review the role of the Gangmaster’s Licensing Authority (GLA), opened up the possibility of extending its restricted remit. Finally amendments to the definition of forced labour, slavery and servitude mean this offence may fill some of the gaps left by the government’s narrow definition of trafficking.

But what difference does the law really make for actual and potential victims of severe exploitation? Of course this largely remains to be seen, but there are some areas in which the new law has potential to improve the situation of exploited workers.

Changes to the definition of forced labour, slavery and servitude have the potential to broaden understandings of criminal labour exploitation, and encourage the investigation and prosecution of a larger number of cases. The definition now makes clear that the appearance of, or actual consent of a worker to exploitative work is irrelevant where the worker is being held in forced labour, slavery or servitude. This is important given the number of cases we see in which migrant workers agree to work in sub-standard conditions that further deteriorate into forced labour through controls on movement and withholding wages. This definition also turns attention towards personal circumstances that may lead someone to be particularly vulnerable to exploitation.  Such circumstances expressly include the victims’ family relationships and mental or physical illness, but also have the potential to include the victims’ immigration status – a common source of vulnerability to forced labour.

A further important step made by the Act is to protect some people who are victims of modern slavery from prosecution for crimes they are forced to commit while under the control of their exploiters. This includes migration-related crimes such as identity document fraud, and crimes commonly involving trafficked labour, such as cannabis production. Smaller steps forward were also made in the area of victims’ legal rights – Section 8 of the Act requires a court to at least consider ordering compensation for a victim following a slavery or trafficking conviction. The Act also extends legal aid to victims of forced labour, slavery and servitude, where it was previously only available to trafficking victims.

Yet it is also on victims’ legal rights and protections that major gaps remain, and the Modern Slavery Act falls short of meeting key international obligations. Firstly, contrary to the European Trafficking Convention, the Act does not guarantee victims’ access to compensation, either directly from perpetrators through criminal or civil proceedings, or through the Criminal Injuries Compensation Authority. Victims trying to obtain compensation through these avenues currently face numerous hurdles, and very few exploited workers ever recover the unpaid wages they are owed.

Secondly, while the EU Trafficking Directive, requires legal assistance to be provided “without delay”, potential victims of trafficking and slavery still face significant difficulties in accessing legal aid. In particular they cannot access legal advice until a) they have agreed to be referred to the authorities, and b) it has been determined that there are “reasonable grounds” to believe they are a victim. In the case of third-country nationals and undocumented migrants in particular, referral to the authorities is a daunting and potentially dangerous prospect that often requires expert legal advice on options and consequences. Without early legal aid it is very difficult for someone who has been exploited to make an informed decision about their case.

Thirdly, contrary to the UN Human Trafficking Protocol, the Modern Slavery Act definition of human trafficking requires that the victim has travelled into exploitation, and for that travel to have been arranged or facilitated by the perpetrator. This is not a requirement of the international definition of human trafficking, and makes it very difficult to prosecute those involved in exploitation. It reflects the Government’s ongoing preoccupation with immigration, and continued prioritisation of immigration concerns over the prevention of exploitation.

Finally, and most damningly, the Modern Slavery Act failed to abolish the highly damaging tied visa for overseas domestic workers. The tied visa, which prevents overseas domestic workers from changing employers and so binds exploited workers to their exploiters, has been the subject of a sustained campaign by Kalayaan since it was introduced in 2012, and was an ongoing issue in the Modern Slavery Bill debates. In February an amendment was passed in the House of Lords to reinstate the right of overseas domestic workers to change employers. This was swiftly overturned by the Government when the Bill returned to the Commons. Pressed for a solution, the Government extended the right to change employers to victims who agree to be referred to the authorities and who are determined as “victims”.  For the majority of overseas domestic workers therefore, the tied visa remains, and perpetuates such an imbalance of power between employer and employee as to itself create a situation ripe for exploitation.

For these reasons and more the Modern Slavery Act is not exactly the triumph that the government suggests.  Whilst the Act shows progress in the UK’s approach to forced labour, slavery and human trafficking, it is far too heavily weighted towards prosecution, rather than prevention and protection, and effective responses have been thwarted by immigration concerns. For the large majority of migrant workers exploited across the UK this Act will have limited impact. It does, however, start the journey towards a stronger, more comprehensive approach to labour exploitation in the UK.

Claire Falconer is the Legal Director of Focus on Labour Exploitation (FLEX).  FLEX is a UK-based organisation that promotes effective responses to trafficking for labour exploitation worldwide, through research, advocacy, awareness raising and training.  This blog was originally posted on the Migrant Rights Network (MRN) website.  

In the report the commission calls for a national strategy for advice and legal support, to replace the current piecemeal approach, which is failing to protect the poorest and most vulnerable.  It also calls for a £100m implementation fund – with half the money coming from central government, and half raised from other sources, including a levy on payday loan companies.  

Other recommendations include:

 – Creation of a new, cross-departmental ministerial post, to oversee implementation of the advice and legal support strategy;

– Restoring legal aid for housing cases so people can get help before they face imminent eviction;

– Urgent reform of the ‘safety net provisions’, introduced by the Legal Aid, Sentencing & Punishment of Offenders Act, which are proving unwieldy and unworkable.

 During its year-long inquiry, the Low Commission heard evidence from around the country:

 – Tameside, near Manchester – 5-week wait for appointments at local Citizens Advice Bureau; only 10% of those needing specialist help are able to be referred on (down from 50%);

– Gloucester: housing charity Shelter has closed its office, the CAB has gone into administration; while Gloucester Law Centre is still going, demand for immigration and debt advice has doubled, compared with last year;

– Birmingham: local CAB lost more than half its local authority grant (down from £590,000 to £265,000), plus £700,000 in legal aid funding;

 – Sutton: CAB has seen trebling of demand for welfare benefit appeal advice in last three years;

 – Swansea & Neath Port Talbot: CAB has had to axe 12 out of 36 staff posts because of 30% cuts in budget.

 Read the full report

Many of the people we work with are entirely destitute at the time of their first contact with us and, increasingly, struggle to access even the few rights and entitlements to which they are entitled. We have seen the situation become increasingly worse since the introduction of Legal Aid cuts in April, and were not in the least surprised to read that the Government’s strategy in terms of migration policy is actually to develop a “hostile environment”, in which irregular migrants struggle to access the most basic services.

The consequences of this this strategy on the lives of vulnerable migrants can be well illustrated by the example of Carlos and his family. Carlos approached us for help to regularise his family’s status, telling us that he and his wife, Angela, had arrived from Jamaica some 12 years ago, overstaying on a visa. Their son, Anton, had been born just over 9 years on and, having been diagnosed with autism early in his childhood, Carlos and Angela had felt unable to return home, fearing that Anton’s special needs would not be met within the Jamaican education system.

The family had paid a succession of private solicitors thousands of pounds to help regularise their status, to no avail. At the time of their first contact with us, they were renting a room within private accommodation, with mother, father and Anton all sharing a double bed. Their situation was rendered yet more precarious by the fact that the rent was paid by Angela taking employment as a care worker, without permission to work.

We were able to identify legal arguments to help regularise the family’s status: case law says that the families of children resident in the UK for longer than 7 years and well integrated into the UK’s education system should be granted status. Moreover, Anton will become eligible for registration as a British citizen in just 2 months’ time when he turns 10, having spent the entirety of his life to date in the UK.

We advised Carlos that his family was eligible for support from the Local Authority under section 17 of the Children Act while the new application was under preparation and consideration by the Home Office, and went about making a referral for support to the appropriate Authority. Which is where things became complicated.

Rather than working in partnership with us in Anton’s best interests as a child in need, the Local Authority has adopted an essentially adversarial approach; the social worker responsible for conducting the assessment actually told Carlos that he had been instructed by his manager to “disregard” information we had shared about representations we were in the process of submitting to the Home Office, and both the social worker and his manager have refused to communicate with us in any way about the family’s case.

On completion of the assessment, Carlos was presented with a letter advising him that his family was not eligible for support under section 17 of the Children Act, and should take immediate steps to ‘return’ to Jamaica- a country which Anton has never so much as set foot in. We consider the decision to be illegal, and referred Carlos and his family on to Birmingham Law Centre, with whom we had a close partnership working relationship, to initiate a Judicial Review proceedings. Nightmarishly, within a fortnight of our referral, the Law Centre closed down. We have now, thankfully, identified alternative legal representation for the family, and hope that appropriate support will be put in place within a matter of days.

In the meantime, however, the family is living on food parcels we are able to provide, and experiencing harassment from the family of the landlord in whose property they are still sharing a room, not having been able to pay the rent since Angela stopped working on our advice.

Consultations are underway to make the environment in the UK even more “hostile” for families in this situation: it is proposed to give yet more power to the landlord exploiting this family’s vulnerable situation, and to restrict their access to healthcare. The reception afforded to this family by the agencies they approach for support is that they are “illegal immigrants”, who should simply leave the UK. And yet, the law actually says that this family- and particularly Anton, who knows no other life- does have a right to settlement in the UK.

Which raises a question: what use are rights if no one can help you to access them? Carlos and his family are not eligible for legal aid to help regularise their immigration status. The Local Authority responsible for the family’s basic accommodation and support needs refuses to take responsibility. Agencies which can help are so precariously funded that, like Birmingham Law Centre, they go out of business in the process of initiating legal challenges.

ASIRT, for now, is here to fight for the rights of people denied them in a “hostile environment”. But the decimation of advice and advocacy organisations across the country makes it likely that thousands of families in similar situations will be left in precarious “limbo” situations for many years to come.