Crisis Compounded? Legal Aid, Feminist Advocacy, and the Budget Cuts in British Columbia, Canada

By Agnieszka Doll

Since 2002, the successive governments of the Canadian province of British Columbia (BC) have enacted large-scale budget cuts to state-funded legal aid. The Canadian Centre for Policy Alternatives researchers reported that in 2002 provincial funding for legal aid has been cut by 40 percent (Brewin & Stephens, 2004; Govender & Milne, April 9, 2013) The most severe reductions were implemented in areas of family law, poverty law, and immigration legal aid. In fact, by the 2010 the legal aid representation in poverty and immigration cases was completely eliminated, while in family law, such representation has been limited to high risk cases (Brewin & Govender, 2010; Brewin & Stephens, 2004). In addition to difficulties in receiving legal representation, access to legal information has been also limited by changing eligibility threshold, substituting direct contact with lawyers with online and telephone service, and reducing the number of legal clinics. While legal aid in BC was considered insufficient even before the reductions, the cuts further deepened the crisis by limiting access to justice for the most marginalized populations (Morrow, Hankivsky, & Varcoe, 2004).

Feminist scholars (Morrow et al., 2004) have specifically argued that the cuts have a clear gender dimension. Firstly, prevalence of poverty among women, including those who experience intimate violence, renders women particularly disadvantaged by legal aid cuts as they often rely on state-resources for their access to justice (Sarophim, 2010). Secondly, the implemented cuts predominately targeted services related to family, civil or poverty law, which women tend to use more often that, for instance, services related to criminal law that received no similar cuts and that tend to be more frequently utilized by men. Third, concurrent implementation of changes limiting state funding for women’s organizations and subjecting funding to competitive distribution model, shattered existing infrastructure of research and advocacy-based organizations that are often unable to compete with for-profit organizations for service provision (Knight & Rodgers, 2012).

In the midst of those changes, I conducted (between 2008-2009) a qualitative study in one B.C women’s organization through which I explored how the organization’s staff experience delivering law-related services to women or helping these women access justice in the context of the budget cuts. I was also interested in learning about the extent to which existing legal services meet specific needs of immigrant women who experience intimate violence.

My interviews with the organization’s frontline staff and its administrators, as well as a focus group and hours of observations revealed three major findings regarding the consequences of government cuts on service offered by the organization:

1)      The organization went through severe employment shifts. For example, at the time of my research, the Victim Assistance Program – designed to assist women who experience abuse in navigating their criminal cases through the criminal justice system – lost all of its previous employees and was run by a new staff. Such shifts in the staff composition complicate the organization’s court presence; the previously established relations with the court personnel often need to be rebuilt, which takes significant amount of time and effort. Thus, the cuts contributed to shattering the organization’s credibility as legal advocates by affecting its ability to remain visible to justice and police administration.

2)      The organization became dependent on volunteer work. For example, the women’s center, which is often the first contact point for women seeking legal services, was forced to substitute the loss of three fourth of its professional staff with work of volunteers. This restructuring has consequences on the quality of information received by women who come for legal guidance. Since volunteers provide their help occasionally, their skills are mostly used to support the basic functioning of the center not to provide information about legal aid service to women in need. Often, they do not have the related professional training.

3)      Given changes in priority areas funded by the government, the organization adjusted their own services accordingly. Previous focus on feminist political awareness raising about the nature of gender inequalities or feminist advocacy gave way to emphasis on short-term relief services provided to the victims of gender violence. As organizations became forced to compete with each other for resources, they started to internalize the idea of self-sufficiency as their key for survival. Thus, instead of sharing resources such as translation services, etc. with other organizations, applying for own funding came to be regarded as a strategy of ensuing inflow of additional money to the organization.

One important implication of my study I would like to highlight is the impact of budget cuts on feminist organizations’ potential to pursue advocacy for women in the courts, in the police, and in other law enforcing institutions. While the budget cuts to legal services evidently degenerated the position of women experiencing violence who need to represent themselves in courts and often surround their rights, truly successful legal representation amounts to more then just having a lawyer. It would not be novel to say that the gender stereotypes still prevail in the criminal justice system; the domestic violence cases are considered of a lower importance to other criminal cases, and the knowledge of intimate violence by court, police authorities, but also by lawyers is often not sufficient. Thus, survivors-centered advocacy shall be considered as complementary to prosecution or to other legal procedures resulting from or linked to gender violence so the needs of women are addressed by judicial decisions (Nichols, 2013). I would like to also suggest that individual-level advocacy pursued on the ground by feminist advocates is instrumental for fair and equal access to justice for women, similar, as it is to the needs-based access to legal aid. The structural –level feminist advocacy needs to continue to expose the link between the gendered socio-structural inequalities and gender violence. Those important dimensions of women’s and anti-violence movements have been seriously jeopardized by the discussed budget cuts. The quest for funding had the effect of pushing women’s organizations to depoliticize and subvert feminist ideas about the relationship between gender, violence, and structural inequalities and, instead, adopt “a Band-Aid” solution to gender violence and channel their advocacy efforts. This way, by undermining the potential for feminist advocacy through budgets cuts, the B.C. governments made effective steps towards reinforcing gender order through legal means and within legal system.

Bibliography:

Brewin, A., & Govender, K. (2010). Rights-Based Legal Aid: Rebuilding BC’s Broken System. Retrieved from Canadian Centre for Policy Alternatives website: http://www.policyalternatives.ca/sites/default/files/uploads/publications/BC Office/2010/11/CCPA_Legal_Aid_web.pdf

Brewin, A., & Stephens, L. (2004). Legal Aid Denied: Women and the Cuts to Legal Services in B.C. BC Office: Canadian Centre for Policy Alternatives and West Coast LEAF.

Govender, K., & Milne, K. (April 9, 2013). BC’s Publicly Funded Legal Aid is in Crisis. Retrieved from Canadian Centre for Policy Alternatives website: http://www.policyalternatives.ca/publications/commentary/bc%E2%80%99s-publicly-funded-legal-aid-crisis

Knight, M., & Rodgers, K. (2012). “The Government Is Operationalizing Neo-liberalism”: Women’s Organizations, Status of Women Canada, and the Struggle for Progressive Social Change in Canada. NORA – Nordic Journal of Feminist and Gender Research, 20(4), 266-282. doi: 10.1080/08038740.2012.747786

Morrow, M., Hankivsky, O., & Varcoe, C. (2004). Women and Violence: The Effects of Dismantling the Welfare State. Critical Social Policy, 24(3), 358-384. doi: 10.1177/0261018304044364

Nichols, A. J. (2013). Meaning-Making and Domestic Violence Victim Advocacy: An Examination of Feminist Identities, Ideologies, and Practices. Feminist Criminology, 8(3), 177-201. doi: 10.1177/1557085113482727

Sarophim, J. (2010). Access Barred: The Effects of the Cuts and Restructuring of Legal Aid in B.C. on Women Attempting to Navigate the Provincial Family Court System. Canadian Journal of Family Law, 26(2), 451-472.

The Right to Assistance – The Public Duty to Assist by Jane Krishnadas

The Hands of the CLOCK; Rights as the Intersections

Since the Legal Aid Sentencing Punishment and Offenders Act, 2012 – ‘The Government’s evisceration of Legal Aid leaves those of us involved in the court system feeling a bit like the  inhabitants of an island about to be hit by a tsunami… (Saunders, The Lawyer, 2013).  Having lived, worked and researched in a post-disaster situation, the comparison may seem extreme. However, one year after LASPO, the collaborative efforts of the Community Legal Outreach Collaboration Keele, (CLOCK), have been just in time to assist more than 100 litigants a month facing the loss of livelihood, property or families, which replicated across the UK reaches the disaster scales of 100,000’s of people.

Theoretically, the comparison of the post-disaster sites lies in Arendt’s framework of diminished agency and a declining state (The Human Condition), within which I’ve explored the role of rights within different ‘Scales of Justice’ (Fraser), as a transformative rights strategy; reflecting voices, revaluing resources and relocating sites of justice; (Rights as the Intersections, A Transformative Methodology).

CLOCK

CLOCK Logo

The CLOCK logo presents a visual and practical blueprint of the interrelation of rights and duties within the local justice system (see CLOCK partner leaflet). The Community Legal Outreach Collaboration, Keele (CLOCK) was formed as an umbrella of professional public, private and third sector organisations, to develop a new role ‘the Community Legal Companion’, premised upon the McKenzie Friend principles,  to safeguard the litigant- in-person’s rights to assistance and access to legally-aided and affordable legal services, within the shared commitment to access to justice.

The Community Legal Companion is centred within CLOCK, reflecting Crenshaw’s principle ‘that those concerned with alleviating discrimination’ should begin with ‘addressing the needs and problems of those who are most disadvantaged… for which placing those who are currently marginalised in the centre is the most effective way to resist efforts to compartmentalise experiences’ (‘Demarginalising the Intersection of Race and Class’, Crenshaw, 1989; 167).

However the Legal Companion presents a different starting point to Martha Fineman’s ‘Vulnerable Subject’ (2008). The Legal Companion is an assistant to the legal subject, premised upon the right to reasonable assistance which is embedded within the McKenzie Friend Practice Guidance, July 2010. The text clearly affirms ‘The Right to Reasonable Assistance’. Critically the right of assistance is the right of the litigant. It is not a right of the gratuitous, commercial or politically motivated McKenzie Friend.

The Legal Companion cannot act as an agent for the individual and has no authority to act or speak or advise in any way on behalf of the individual. The litigant’s voice therefore remains their own, as does their actions and decisions- in the words of a litigant, the legal companion is ‘My Calm in the Storm’ (BBC Radio Stoke Discusses Legal Aid and CLOCK).

It is the duty of the court to grant the right of assistance, or provide sufficient reasons why the litigant should not receive assistance. The decision of the court is based upon procedural fairness, the right to a fair trial and the efficient administration of justice. The Chair of the Civil Justice Council Working Party on Access to Justice for litigants-in-person states ‘It is impossible to overstate how important it is for people to have access to justice in a free society”, and calls for ‘concerted leadership to drive collaboration’ (Civil Justice Council Calls for Action).

The CLOCK dial represents a collaborative shared duty to the right of assistance. The Courts provide training on the court forms for suspending evictions, debt, divorce and Children Act applications. The Police and CPS provide training on bridging the civil and criminal processes. The Charitable organisations, circle the CLOCK, providing supporting evidence for legal aid applications, and holistic support; the first quartile, housing and complex needs, Brighter Futures, ASPIRE; the second, family relations, YMCA Family Services, Arch, Savana, Voices of Experience;  the third, community safety, Savana and the fourth, welfare and discrimination, Staffordshire North and Stoke-on-Trent Citizens Advice Bureau, SNCAB. The inner circle of the partner law firms Nowell Meller, Salmons, Young and Co, Lichfield Reynolds and colleagues within the North Staffordshire Law Society‎, and Regent Chambers and Rowchester Chambers,  ensure the companion acts within the professional duty to refer to mediation, legally-aided and affordable legal services. (See: Law Society Litigant in Person, Practice Note; and Bar Society: Guide to Representing yourself in Court).

The legal companion, provides a holding hand, the hands of the clock, to pivot the range of public, private and third sector services, which intersect the complex nature of shattered lives (see Intersectionality and Beyond) for which legal companions have assisted clients to trace multiple legal pathways through criminal, civil, welfare, immigration and domestic violence services (BBC News, Keele students help legal aid gap).

The daily presence of the legal companions in the court, presents a mechanism to draw together evidence to satisfy legal aid criteria, monitor the scope and impact of LASPO on the local community and highlight cases to challenge the fairness of s.10, LASPO, as recommended in the R.1, R.3, and R.4, of the Low Commission Report, Jan 2014.

The hands of the CLOCK  reached the hour, when the Head of Legal Aid visited the domestic violence refuge and listened to ‘Voices of Experience’, to contribute their perspectives on access to legal aid to the  Parliamentary Debate on Baroness Scotland’s Civil Motion to Regret (Head of Legal Aid Commends Legal Companion CLOCK initiative, as “a really positive initiative and could provide a model for similar programmes across the country”).

The endorsement of CLOCK as: an ‘imaginative scheme’ from the Stoke-on-Trent Judiciary; ‘a strategic development in legal education’ (the HEA, Strategic Summit, 2014); an ‘excellent service which epitomises the practical implementation of several of the Working Party’s recommendations’, (Civil Justice Council) and a case study of ‘good practice’ within the Legal Services Consumer Panel Fact Finding Visit, has secured the interest for wider collaboration from Birmingham, Birmingham City and Wolverhampton Courts and Law Schools.

CLOCK has maintained its momentum via the pendulum of in-kind resources, exchanging the costs of court, police, CPS, solicitor barrister and local council time with the experience of the legal companion assistance to navigate the most direct and supported pathways to meet unmet legal needs.

As the past President of the Law Society concludes ‘Sadly the cuts are inevitable’ it may be important to remember the Public interest litigation (S. Krishnadas v Government of Maharashtra). Filed by the, then, law student who initiated the Social Legal Information Centre, Omerga, to fact find information, and with the support of the independent judicial inquiry on the constitutional right to equality won a High Court order for the State to provide financial compensation, housing and basic needs to the earthquake-affected population (see with Krishnadas Sukumaran, Reclaiming Rights, Pluto Press, forthcoming).

Twenty years on, the comparison may seem a travesty, with in effect, “the cessation of the ‘Legal Aid’ programme as it was and its evolution into a new mutation with centralised and commercial controls run from regional centres”, yet the provision of a local service (CLOCK) with “access to citizens in the community will become a resource of huge importance for those who rely on the use of the national legal system. The City which holds the ‘signed’ Magna Carta should also seek to set an example of the standards of performance expected of that document” (David Hallmark, CBE, Worcester Law Society, Visiting Fellow, Oxford. See 2015: Unification of the four surviving original copies of the Magna Carta, celebrating the 800th anniversary of the issue of the Charter).

It is at this intersection in time, where the hands of the CLOCK may indicate a potential for ‘remaking and restructuring the world’, (Crenshaw, 1989; 167)… or at least to bridge our constitutional rights and duties within local spheres of justice… time will tell.

Please note that with due regard to the wider CLOCK partnership, this is a personal narrative of my experience and views. For further information please contact j.h.krishnadas@keele.ac.uk