The government has agreed to conduct an urgent review of legal aid provision for victims of modern slavery and trafficking who want to bring court claims against their traffickers. This is following the judicial review brought by ATLEU with the pro bono assistance of Freshfields Bruckhaus Deringer and barrister Shu Shin Luh of Garden Court Chambers.
Parliament had included a clause in the Legal Aid, Sentencing and Punishment of Offenders Act 2012 to ensure that victims of trafficking could bring compensation claims against their traffickers. This was repeated and expanded upon in the Modern Slavery Act 2015. However, the way that the Legal Aid Agency has implemented this provision means that victims of trafficking and modern slavery are not able to access legal advice and assistance to bring claims.
ATLEU challenged the government because it was failing to provide victims with the help they need - and to which they are legally entitled. Evidence from support agencies Kalayaan, Medaille Trust, Migrant Help and Hope for Justice showed that many victims were unable to access advice because of the limited number of providers able to deal with compensation claims and the limited number of such claims each one could handle. ATLEU itself is only permitted by the government to bring five cases for victims in the Employment Tribunal every year, despite receiving many more referrals and we find it extremely difficult to refer the clients we have to turn away to other legal firms.
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 of trafficking. However, after he granted permission to pursue the judicial review, and shortly before the full hearing, the Ministry of Justice and Legal Aid Agency agreed to undertake a review by the end of June 2016. Following this concession, we withdrew our claim.
The purpose of the review agreed by the government is to identify whether there are barriers to advice and assistance; if so, the causes of these; and what steps should be taken as a result.
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 (currently Shailesh Vara) by no later than the end of June. It will be published at the same time. The government has agreed to implement any approved recommendations as soon as practically possible.
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 our 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.’
Barrister Shu Shin Luh of Garden Court Chambers acted pro bono for ATLEU. She said:
‘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.
‘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 order compromising 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.
The consent order and the ambit of the Government's review can be viewed here.