Commission responds to government proposals on legal aid reform

13 Jun, 2013

The Equality and Human Rights Commission has today published its response to the government’s consultation on legal aid reform.  The response says that the proposed changes could breach equality and human rights laws by excluding vulnerable people from access to justice.  


To avoid this, the Commission recommends tighter safeguards on the impact of the proposals in practice and running some proposals in practice initially as pilots.


The Commission has responded to the Ministry of Justice consultation in light of the requirements of the Equality Act 2010 and Article 6 of the European Convention on Human rights – the right to a fair trial. Its legal analysis has taken into consideration the need for money to be saved in the current financial climate but stresses that reforms to legal aid must take full account of people’s rights, to ensure the legal system is fair for all.


Following close scrutiny of the reform proposals for civil legal aid, the Commission’s assessment is that the proposed changes to criminal legal aid – including the introduction of competitive tendering and the removal of client choice – may be incompatible with Article 6. It recommends that the reforms are piloted before being rolled out nationally.


The Commission also advises that the proposals could fall short of the standards expected under Article 6 (1) and that may mean the government is exposed to legal challenges. While the new exceptional funding scheme could provide a safety net, we do not yet know how this will work in practice – especially if potential clients are put off from seeking advice.


Other areas where the Commission advises further consideration include: 


  • the residence test would deny anyone, including UK residents, legal aid if they could not provide proof of lawful residence. This could affect vulnerable individuals living in the UK such as: migrant children, victims of domestic violence, trafficking, forced marriage, or UK residents not present in the country when a crime was committed against them.


  • the proposal to remove legal aid for cases which have borderline prospects of success. As this often includes cases where there is a conflict of claims or rights – such as a disagreement between an employee and employer or a family dispute over the custody of a child – the Commission concludes that a lack of legal support could lead to people losing access to their children or losing their jobs because of a disagreement with their employer.


The Commission recommends that further steps are taken to better identify the adverse impact of the legal aid proposals and put in place measures to monitor and assess the impact of any reforms.


Mark Hammond (pictured), Chief Executive of the Equality and Human Rights Commission, said: “The Commission has conducted a careful legal review of the Government’s proposals and has highlighted that, on the basis of this analysis, they would be likely to have a disproportionate impact on the most vulnerable sections of society, including the poorest victims of crime and of official maladministration.


“The right to go to court as a last resort, and the right to have a fair trial and a decent standard of legal representation are important protections for us all and we should ensure they are available to the most disadvantaged.


“The Commission recognises that the need to curb public spending applies to all public services, and agrees with the government that the taxpayer is entitled to the best possible value for money. But any budget cuts that are made to the administration of justice must preserve the basic rights of fair and equal access to the courts including for those who cannot afford to pay for a lawyer.


“The Commission therefore recommends that the Government reconsider these proposals and ensure that the right to a fair hearing is not unjustifiably imperilled for the most vulnerable sections of society.”

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