MoJ to review legal aid in human trafficking cases

The Lord Chancellor has agreed to conduct an urgent review of legal aid provisions for people bringing compensation claims against their traffickers.

The Anti-Trafficking and Labour Exploitation Unit (ATLEU), a charity that provides legal representation to victims of human trafficking, brought a judicial review challenging the adequacy of legal aid provision following changes made by the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO).

Paragraphs 32(2)-(3) and 32A(2)-(3) in schedule 1 of LASPO were designed by parliament to ensure that victims of trafficking and modern slavery can bring compensation claims against their traffickers.

However, the Legal Aid Agency (LAA) has been criticised for how it has implemented the provision. Critics argue that victims are not able to access legal advice to bring claims.

Evidence from Kalayaan, Medaille Trust, Migrant Help, and Hope for Justice showed that many victims were unable to access advice because of the limited number of legal aid providers able to deal with compensation claims, and the limited number of such claims each organisation can handle.

Hearing the judicial review, Mr Justice Blake said it was arguable that the arrangements amounted to a breach of the government's duty to make legal aid available to victims.

However, after Blake J granted permission for ATLEU to pursue the challenge, the Ministry of Justice and LAA agreed to undertake a review of the provisions by the end of June 2016. Following the concession, ATLEU withdrew its legal action.

The purpose of the review, agreed by government, is to identify whether there are barriers to advice and assistance. If there are, then the review should identify the causes and assess what steps should be taken to remedy them.

In light of the 'considerable urgency in relation to this review', the government said it aimed to present its recommendations to the minister for legal aid, Shailesh Vara MP, by the end of June.

The government has also agreed to implement any approved recommendations as soon as practically possible. The review will not, however, consider widening the scope of civil legal aid for victims of trafficking.

Jamila Duncan-Bosu, a founding member of ATLEU, said: 'We're extremely pleased that the Lord Chancellor has accepted the need to review this matter; we look forward to the government providing effective access to legal aid for victims of modern slavery and trafficking so that they can hold their traffickers to account in the court.

'In the recent case of Tirkey v Chandok, Ms Tirkey, a victim of trafficking who suffered unlawful caste discrimination, won £263,000. If Ms Tirkey sought advice from us today we simply would not be able to help her with her claim because of the government's inadequate provision of legal aid for victims of trafficking and modern slavery.'

Shu Shin Luh, a barrister practising from Garden Court Chambers and instructed by Magic Circle firm Freshfields, acted pro bono for ATLEU.

'If the government wants to realise its commitment under the Modern Slavery Act to providing victims of trafficking and modern slavery a right to seek reparations from their traffickers, then it must ensure that there is a system in place which gives victims effective and practical access to legal advice and assistance to realise their rights. This hasn't happened to date,' she explained.

'It is hoped that with this review the Lord Chancellor will now adhere to his commitments toward trafficking victims to ensure they are able exercise their right to seek reparations and hold to account those who have exploited them.'

As part of the consent order compromising on the judicial review, the government is to pay £12,000 in costs to the Access to Justice Foundation under the scheme for pro bono costs orders.

A MoJ spokesperson said: 'The government firmly believes that victims of trafficking and modern slavery should receive the help and legal advice they need. We have settled this case and committed to a review of this issue. 

'We have made sure that legal aid continues to be available in the highest priority cases – this includes victims of trafficking and modern slavery. Our legal aid system is still one of the most generous in the world. Last year we spent £1.6bn on legal aid, almost a quarter of our departmental budget.'