18. Memorandum from Law Centres Federation
The Law Centres Federation is the national body
representing a network of community Law Centres based in England,
Wales and Northern Ireland.
Law Centres employ specialist solicitors and
experienced caseworkers. They all hold the specialist level Legal
Services Commission Quality Mark. Law Centres focus on areas of
law that most affect the poor and disadvantaged—social welfare
law. They hold institutions and public bodies to account and enable
people to fight unfair discrimination in all its forms.
Law Centres seek to protect and promote social
justice, equality and human rights. They are independent and members
of the not for profit legal and advice sector. They have strong
community links and combine their casework services with training
and legal education in the community.
There are 57 Law Centres of various sizes and
covering different catchment areas varying from very local provision
to wider countrywide provision and sometimes a combination of
both. They are funded mainly by local authorities and by the Legal
Services Commission which offers contracts for the supply of legal
advice and representation in the different areas of social welfare
law.
Law Centres seek to improve the lives of individuals
and whole communities. They adopt an holistic approach and aim
especially to help individuals and groups who experience unlawful
discrimination or harassment. Part of the strategic approach taken
by Law Centres is to prioritise their services to vulnerable groups
and to employ a range of solutions to problems which may include
taking on test cases to challenge and change the law.
Equality and human rights issues are integral
to the approach taken by Law Centres. The Law Centres Federation
therefore welcomes the establishment of the Commission for Equality
and Human Rights (CEHR).
NATURE AND
EXTENT OF
THE COMMISSION'S
HUMAN RIGHTS
REMIT AND
RELATIONSHIP TO
THE EQUALITY
FUNCTIONS
Lord Falconer in his address to the Law Society
on 17 February said that the new Commission will take over the
role of the three existing Commissions and make provision for
the three "new" equality strands: religion and belief
and sexual orientation which now have legal protection and for
age discrimination coming into force in 2006. Cases can involve
multiple discrimination issues and the proposal to combine all
areas is welcomed.
We believe that equality is a fundamental human
right and that human rights and equality issues are inextricably
linked. As David Lammy[121]
said in his speech to the Audit Commission, "Human rights
and equality are complementary. In fact they are two sides of
a single coin." The Law Centres Federation believes that
the CEHR should have the power to take proceedings on both equality
and human rights issues and agrees with the recommendation made
by the Law Society[122]
"that the CEHR should be able to bring proceedings in its
own name or to support Human Rights Act (HRA) proceedings in any
case in which it also determines to bring or support proceedings
under the equalities legislation."
Lord Irvine said in Modernising Justice, "People
need to have ways to uphold their rights and defend their interests
in their dealings with others, including employers, retailers,
service providers and the State. It is not enough for people
to have rights; they must be confident they can enforce those
rights if need be. This was the purpose behind the Human Rights
Act 1998, which enables citizens to enforce their fundamental
rights through the British Courts." [123]
The CEHR should be able to take on test or strategic
cases. As stated by the current Lord Chancellor[124]
litigation is important, "First and foremost, we need litigation
to assure compliance. We also need litigation to challenge ways
of thinking. We brought in the Human Rights Act to help by giving
people here the right to seek a remedy from the courts for breaches
of the Convention rights."
People do need to feel confident that their
rights will be protected. It has been argued that there are sufficient
providers of human rights advice and representation. In the research
conducted by the British Institute for Human Rights[125]
some advice workers were found to be using the Human Rights Act
to make change happen. Law Centres have used the Act when relevant
with mixed results. Giving evidence to the British Institute of
Human Rights, a Law Centre said:
"The Law Centre has attempted to use the
Human Rights Act over the past year, principally in the fields
of immigration and welfare benefits. We have argued sometimes
successfully before Adjudicators that to return asylum applicants
to their country of origin would constitute breaches of Articles
3 and 8. One particular Article 3 case was successful on the basis
that our client required specialist psychiatric treatment, which
would not have been available in his country of origin. With respect
to benefits, we have sought to argue that rules debarring persons
from claiming benefit, who are made subject to sponsorship undertakings,
are in breach of the European Convention. We currently have one
case, which is waiting for a hearing by the Social Security Commissioner
and twice adjourned case, which is waiting for a hearing before
the Appeal Tribunal. We have also sought to make some submissions
under Article 6 regarding applications to reinstate appeals, which
have been struck out for procedural reasons.
As to housing, Human Rights points regarding
Article 8 have been pleaded in possession actions but to date,
we have not received any judgments, which turn upon these points.
In general, I feel that the Human Rights Act
has been useful to date but to a limited extent. I think there
has been an initial reluctance amongst the judiciary to determine
cases solely on Human Rights points and that in this respect a
far too cautious and conservative approach has been adopted. It
may be that in time, as more challenges succeed and are reported
as succeeding that this resistance will lessen."
There are solicitors in private practice and
in Law Centres skilled in using the Act, but there are not enough.
It has been stated that public authorites have some way to go
in the quest to build a human rights culture. [126]If
more cases had been taken against public bodies for breaches in
the Act, awareness may have grown and influenced current policies
and procedures. As stated again by Lord Falconer, [127]"You
can't get far in building a culture of respect for human rights
without the ability to go to the law".
There is a current debate about whether there
is a lack of legal advice providers. The Department for Constitutional
Affairs is currently conducting an Inquiry into Legal Aid where
the issue of "advice deserts" has arisen.
In our evidence we said:
"The key issue that needs to be addressed
is the lack of expert legal advice, "legal action deserts"—areas
without any specialist suppliers available and able to take up
complex cases and cases requiring representation in the courts
or tribunals.
"The fact that `advice deserts' still exists
after the setting up of Community Legal Service Partnerships three
years ago to plan future provision, is disappointing. The reasons
why these gaps in provision exist are complex, but are mainly
to do with the funding limits of the legal aid system and the
historic patterns of supply. LCF would argue that particularly
in the areas of civil law other than family and matrimonial, which
takes over 60% of the civil legal aid budget, coverage across
the country has never been good.
"Despite the aim of bringing additional
funding in from local authorities and others, Law Centre funding
has remained insecure and under threat. The LCF has during this
time tried to establish new Law Centres in some of the "advice
deserts", but has encountered considerable difficulties in
securing new funding from local authorities. Law Centres cannot
be sustained with Legal Services Commission contracts alone.
"To compound the problem, it is difficult
to tell what provision there is in any detail. Counting the number
of suppliers in an area of law is a very broad brush approach
and can mask the fact, for example, that two out of three suppliers
of housing advice have limited house or matters starts."
In addition some areas that appear to have adequate
coverage, have acute pockets of poverty giving rise to real shortages
of legal help and assistance. It is in these areas of deprivation
that many people are socially and economically excluded—the
very people whom we aim to assist.
In some areas described as having adequate coverage
there is a real shortage of legal experts. The number of contracts
masks the level of service available." [128]
In addition, as has been shown by recent research
carried out by Legal Services Research Centre, there is considerable
unmet need. [129]Lord
Falconer in the Foreword spoke about the three key findings:
"First, that many individuals and families
do not experience one isolated justiciable issue, but often clusters
of inter-related issues, sometimes stemming from a single "trigger"
problem. The emerging details of trigger problems and problem
clusters will be of enormous value in targeting public support
for advice and legal services. Secondly, that in respect of
nearly one in five justiciable problems no action is taken, often
because people do not believe anything can be done, or sometimes
because they are simply too scared to act. The need to raise awareness
of individual rights and the processes that can be used to give
effect to them is clearly a challenge for the future. Thirdly,
that where people are unable to obtain advice from first advisers
they may give up trying to resolve problems if there is not clear
direction to an appropriate alternative source of advice."
Breaches of human rights and discrimination
are complicated areas of law and as illustrated by the Law Society[130]
can be inextricably linked. Without access to legal and advice
services people experiencing these problems are denied their rights.
Lord Falconer in the research quoted above, said "I have
stressed through my manifesto the importance of justice for all
so that particularly those who are most vulnerable are able to
exercise their rights effectively."
Many people who are denied their rights are
socially excluded. This point was made in the paper written jointly
between the LCF and the (then) Lord Chancellor's Department. "Legal
and Advice Services: A Pathway out of Social Exclusion".[131]
Many people who have been described as socially excluded are the
most vulnerable in society and more likely to have experienced
discrimination and the denial of fundamental rights. It is these
very people that need legal help and advice and yet are the people
who are least likely to seek help and probably the least likely
to seek redress from what might be perceived as a remote and impersonal
central body.
Knowledge of anti-discrimination law is very
low as research commissioned by the Department for Trade and Industry
found. Research carried out by the Institute for Employment Studies
in 2002 found that only 22% of the respondents cited anti-discrimination
legislation as an example of employment rights. [132]
The work needed to create a rights based culture
was described by Coventry Law Centre in their annual report for
2001-02. They said:
"Before anyone accesses legal advice they
need to realise that they have a legal problem. This often happens
without specific recognition on the part of the client: `someone
at work is being racist to me' rather than `I have a potential
claim under the race discrimination legislation . . .' The Law
Centre is committed to developing a rights based culture amongst
the socially excluded and other people. To this end, we try to
increase awareness of rights, promote legal solutions to the problems
people face in their lives and make it easy to access the specialist
advice needed to enforce those legal rights."
The number of applications to Employment Tribunals
are likely to be around 113,000 in 2003-04. [133]Even
if applications are reduced[134]
because of the new dispute regulations coming to force, the number
of applications are likely to remain high. [135]
The increasing complexity of many tribunals
has been recognised. For example, the Equal Opportunities Commission
in their guidance on making a claim of discrimination in relation
to part-time work, say,
"You should bear in mind that the claim
you are making is likely to be a claim of indirect discrimination
and might therefore involve complex legal arguments. You should
consider whether you might need to employ expert assistance to
present your claim to the tribunal. This will be particularly
advisable if you are also bringing your claim under the PTWR and/or
Equal Pay Act."
In the LCFs response to the Government's Review
of Tribunals we said that there were "objective circumstances
in which most lay applicants cannot be expected to represent themselves".
These are:
— where there is a point of law at
issue, and
— where the factual issues are complex
or beyond the competence of the applicant to present or bring
out in cross examination.
— where the applicant requires representation
to address the tribunal as to how to apply the relevant law to
the facts established in the course of the hearing;
— where the applicant is distressed
by the circumstances of his/her dismissal or treatment at work
or likely to be intimidated by the need to confront an employer
or witness in a formal setting;
— where the applicant does not speak
English as a first language or is not literate to the point of
being able to follow proceedings in which much of the evidence
is given in writing; and
— where the hearing is likely to last
more than a day and the applicant will not be able to keep on
top of all the evidence to sum up their case at the end.
Employers are increasingly being represented
by lawyers. For example, research carried out by the Institute
for Employment Studies in 1999[136]
said in 59% of the total 2,456 cases (2 December 1996 to 9 July
1998) employers were legally represented. Employment law and in
particular discrimination law related to employment is complex.
The CEHR Task Force reported that the three
equality Commissions provide limited representation—250-300
from the three Commissions combined. This compares with a total
of 20,000 or so employment discrimination cases. [137]
It is clear therefore that a lot of people are
not being represented. The situation is even more worrying if
the research by the Legal Services Research Centre[138]
is taken into account which showed the high level of people who
take no action even if they know they have a problem.
We believe that there is a serious shortage
of specialist providers of legal advice and representation—organisations
such as Law Centres, that are able to provide the legal expertise
needed to take on both equality and human rights cases.
HUMAN RIGHTS-RELATED
POWERS OF
THE COMMISSION
We have argued above that the LCF believes that
the Commission should be given the power to litigate on significant
breaches of the Human Rights Act.
We believe that it is important for the Commission
to take on cases that will help achieve strategically agreed aims
and objectives and take on test cases to challenge or clarify
the law. This should apply to both Equality and Human Rights issues,
which as argued above, are often interrelated.
We suport the suggestions put forward by the
CEHR Task Force[139]
on the types of cases which should be taken on by the Commission.
These are cases:
— where the case clarifies importance
points of law;
— where the case will affect large
numbers of people;
— where the case will have significant
impact on one or more sectors; and in particular
— where the case could flag up the
need for legislative change.
In order to create a culture of respect for
human rights, there must also be experts on the ground. Specialists
in human rights to include equality issues are needed:
— to identify appropriate strategic
cases that could be referred to the CEHR;
— to provide the relevant skills and
expertise needed to take on cases that are important to the individual
or to the local community but which do not necessarily have a
national impact; [140]
— to represent clients at local courts
and tribunals;
— to providea range of casework services
where there are lawyers and experts in the various areas of social
welfare law. For example, workers skilled in employment issues
who are able to identify and take up allegations of discrimination
in the workplace;
— to provide high quality services
that are independent and accessible;
— to offer in liaison with the CEFT
specialist support and guidance to front line advice and community
groups, helping to build up local expertise and knowledge;
— to liaise with the CEHR on issues
arising on the ground and develop in partnership with them national
strategies and priorities for addressing these issues; and
— to act as a conduit for information
exchange and training.
We believe that the work of the CEHR would be
complemented by casework services in the field with a network
of specialist caseworkers skilled in both human rights and equality
legislation. [141]
We support the priority given to promoting good
practice and awareness and to the importance given to helping
public authorities understand and promote equality and human rights.
We believe that public and institutional awareness
about rights and responsibilities is made more effective by linking
the message to a particular case, location or situation. [142]These
objectives are more likely to be met if there are agencies on
the ground, known and trusted by both the public and the private
and public sectors—agencies who are able to provide expert
advice and support when needed.
The CEHR Task Force in their paper on Supporting
Individuals put forward a number of options[143]
on casework services. We broadly support a combination of Options
B and C—a limited central casework service "focusing
on preparing strategic test cases for tribunals or courts"
combined with regional and local provision.
We therefore support the suggestion made by
the Task Force that the CEHR could be given the power to fund.
As stated above, there is a lack of specialist
legal advice. Law Centres have support from many quarters. For
example, Roger Smith, the Director of Justice in his evidence
to the Constitutional Affairs Committee[144]
said that, "the best mechanism to deliver advice is an organisation
which has a mix of lawyers and non-lawyers." Law Centres
have worked closely with the three Equality Commissions who have
acknowledged the important role that Law Centres have in providing
expert advice at grassroots level. The Disability Rights Commission
wrote recently in the LCF Newsletter about the acknowledged key
role of Law Centres in advising people with limited access to
the law and their close working relationship with Law Centres.
Law Centres have received support from the Commission for Racial
Equality who have funded a discrimination worker based in Avon
and Bristol Law Centre and contribution to the funding of the
Race Discrimination Unit[145]
initiated by Lambeth Law Centre in London.
It is important that there are legal services
at grassroots level able to take up local issues. Whilst appreciating
and supporting the view that litigation is not the only way of
making changes, litigation can bring additional benefits. For
example, a local employer who refuses to accept that he/she has
acting in a discriminatory manner is more likely to change if
his/her actions are likely to be publicised in the press following
a tribunal hearing. [146]Often
the ability to threaten legal action is enough to secure change.
Litigation can bring lasting changes and together with the Law
Centre new procedures and policies can be developed so that problems
do not arise in the future. [147]
The Law Centre model of providing services offers
many features, which arguably make them, in partnership with the
CEHR, ideal for creating the culture of respect for human rights
and equality.
— They all employ solicitors whose
work is regulated by the Law Society. [148]In
addition some employ barristers and they all employ additional
experts in the key areas of social welfare law. They provide a
high quality service, are experienced in using the Human Rights
Act and are experts in discrimination law.
— Law Centres have a history of innovative
and creative use of law for the benefit of local communities.
They have experience of taking on test cases and have taken cases
to the European Court of Justice.
In addition, Law Centres offer a unique legal
service providing complementary all round community resource.
For example,
— Their legal work complements their
educational and preventative work in the community. One of the
key characteristics of Law Centres is their commitment to demystifying
the law and making it accessible.
— Law Centres provide training to local
community groups, local authority workers, schools, probation
services, etc on the law and advise providers of services of their
obligations and offer guidance on good practice.
— Law Centres apply an holistic approach
to providing legal services in a community. 149 Their legal work
often links to work in the community—leaflets, 150 information
on their websites about the law and talks. Casework on the ground
provides a vital insight into where there are problems and the
Law Centre adopts a range[149][150]
of creative measures to remedy them.
— With their close relationship to
the communities they serve, Law Centres are aware of the impact
of national policies and legislation on individuals and groups
of people, and are able to offer comment on the success of central
and local government initiatives. They are also able to offer
solutions on how such policies can be changed and offer advice,
for example to local authorities on good practice that would avoid
future litigation. This social policy work is an important component
of their aim to improve the lives of local commmunities.
We believe that there should be better co-ordination
of the funding for legal representation in equality and human
rights cases and that this could be developed by Law Centres.
March 2004
The Law Centre reports that as a result of this case
the principal—a major international company—now ensures
that contract companies have a proper equal opportunities and
harassment policies and that their own managers are trained in
dealing with discrimination complaints made by contract workers.
In addition behaviour auditing has been introduced to ensure that
the behaviour of contract workers meets the principal's own standards.
121 David Lammy MP, Parliamentary Under-Secretary of
State at the Department for Constitutional Affairs speaking at
the Audit Commission Conference on 6 November 2003. Back
122
Law Society position on the power of the Commission for Equality
and Human Rights to litigate. March 2004. Back
123
Lord Irvine, the Lord Chancellor in the Foreword to Modernising
Justice published by the Lord Chancellor's Department in 1998. Back
124
Speech by the Lord Chancellor, Lord Falconer to the Law Society
on 17 February 2004. Back
125
Something for Everyone: The impact of the Human Rights Act the
need for a Human Rights commission. Research carried out by the
British Institute of Human Rights in December 2002. Back
126
Speech by the Lord Chancellor, Lord Falconer to the Law Society
on 17 February 2004. Back
127
Ibid. Back
128
Evidence from the LCF to the Constitutional Affairs Committee
Inquiry into Legal Aid, Legal Aid¸A public service to
tackle social exclusion and protect fundamental rights January
2004. Back
129
Causes of Action: Civil Law and Social Justice Published in February
2004. The study built upon the work carried out by Professor Hazel
Genn, Paths to Justice: What People Do and Think about Going
to Law" 1999 which provided an insight into the relationship
between "justicable" problems and deprivation. Back
130
The Law Society in their submission state, "There will be
cases in which the promotion of equality may result from the provisions
of the HRA rather than from the equality legislation. For example,
some of the equality legislation will relate to employment only,
whereas the ECHR extends beyond that to areas such as education,
freedom of expression and freedom of association." March
2004. Back
131
Legal and Advice Services: A Pathway out of Social Exclusion was
published in November 2001. A further paper, Legal and Advice
Services: A Pathway to Regeneration was written in 2003 by
the Department for Constitutional Affairs, the Legal Services
Commission and the LCF and will be published shortly. Back
132
Employment Relations Research Series No 15 2002. Back
133
Statistic quoted by Lord Sainsbury of Turnville during the debate
on the Employment Act 2002 Dispute Regulations on 23 February
2004 column 100. The figure for 1999 was 104,000. Back
134
Research estimates that 35,000 to 36,000 tribunal applications
will be saved. See above column 96. Back
135
For example, the CEHR Task Force said in their Supporting Individuals
paper that the Government estimates about 8,000 cases at Tribunal
each year after it comes into force in 2006. Back
136
Monitoring the Disability Discrimination Act Finding by Nigel
Meager Institute for Employment Studies. Back
137
The Task Force quote figures from the Regulatory Impact Assessment
for the Toward Equality and Diversity consultation. This draws
on data from the Employment Tribunal Service Annual Report (1999-2000),
which estimates, for 2000-01, 15,334 cases on grounds of sex discrimination,
3,359 on grounds of race, and 1,943 on grounds of disability. Back
138
Ibid. Back
139
Ibid. Back
140
For example, to ensure that local authorities comply with the
Race Relations Amendment Act, their statutory duty to promote
equality of opportunity, their duties under the Disability Discrimination
Act, as well as their duties under the Human Rights Act and the
Sex and Race Discrimination Acts. Back
141
We believe that by working together with the CEHR, a national
network of CEHR equality and human rights experts based in Law
Centres could gradually be established. Back
142
The CEHR Task Force said that individuals are likely to benefit
from an approach that provides accessible, local and tailored
services, enhancing an understanding and awareness of their rights
and avenues of redress, and empowering individuals and organisations
to be self-determining in seeking effective remedies-whether through
the courts or tribunals, or by alternative dispute resolution. Back
143
Commission for Equality and Human Rights Task Force Paper-Supporting
Individuals CEHR/TF/06/004 Updated on 28 January 2004. Back
144
Evidence to the Legal Aid Inquiry being conducted by the Constitutional
Affairs Committee on 9 March 2004. Back
145
The Race Discrimination Unit was formed in June 2000 to provide
free advice and representation to applicants to the Employment
Tribunal (and EAT) living or working in London. It is a joint
venture between Lambeth Law Cente and Two Garden Court and funded
by the CRE. It is also funded by the Community Fund and the Association
of London Government. The Unit has focused on "securing justice
for persons complaining of racial discrimination to the employment
tribunal. There services include casework and accredited training. Back
146
For example an important case was taken up by Central London Law
Centre on gratuities in restaurants-Nerva & Others v
The United Kingdom Government 42295/98. The case was brought
under the European Convention on Human Rights and whilst the case
was lost, it received widespread publicity on both national TV
and radio as well as in most of the national newspapers. The Law
Centre commented, "This publicity has hopefully raised public
awareness of the need to tip waiters in cash rather than on a
credit card and ensures that waiting staff receive the tip as
a gratuity rather than as part of their basic pay. The Nerva case
which lasted over 13 years is an example of cases commonly seen
by the Law Centre of low paid workers who are often not eligible
for legal aid. Without the assistance of our Law Centre this case
could never have reached the European Court of Human Rights." Back
147
Gloucester Law Centre brought a successful sexual harassment claim
involving three respondents-the employer, the principal and "the
harasser". All three respondents were found to be liable.
The principle was liable because it had failed to take adequate
steps to prevent harassment continuing once aware of it. Furthermore,
it provided its managers with no training on how to deal with
harassment complaints from contract workers and did not check
whether contractors had their own equal opportunities policy. Back
148
Sir David Clementi described the regulatory rules governing Law
Centres in his Review of the Regulatory Framework for Legal Services
in England and Wales (March 2004). Law Centres are described as
Legal Disciplinary Practices. "One important area where an
LDP model already works to the benefit of the community is in
the not-for-profit sector, in particular the concept of Law Centres.
These Law Centres provide a free and independent professional
services to people who live or work in the catchment areas."
(p 69.) Back
149
A wide range of community projects have been undertaken by Law
Centres, for example work with local womens' groups to raise awareness
of maternity rights, work with local refugee forums and tenants'
associations, work with school staff and parents, work with local
mental health groups, disability rights groups, local Age Concerns
and Young People's projects as well as Trade Unions and local
professionals such as Doctors and Community workers. Legal casework
informs the Law Centre of local problems and enables them to target
their community work on relevant issues. Their flexibility to
respond to local needs as they arise is an important aspect of
their work. Back
150
Law Centres publish a range of leaflets (see for example information
on Coventry Law Centre's website: www.covlaw.org.uk The Law Centre
in Northern Ireland is an important resource and has been praised
by the Northern Ireland Human Rights Commission. Cherie Booth
QC speaking in Belfast in June 2003 said, "It is right and
proper that Law Centres and other voluntary sector advice organisations
use the law to protect and enhance the rights of those who have
no power. To this end the Law Centre has been at the forefront
of using the Human Rights Act." The Law Centre also co-wrote
a report published by the Northern Ireland Human Rights Commission,
"Connecting Mental Health & Human Rights" Rights
in Progress written by Les Allamby, Director of the Law Centre
(Northern Ireland). The book is a guide to the European Convention
on Human Rights and the Human Rights Act. Back
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