The implications for access to justice of the Government's proposals to reform legal aid - Human Rights Joint Committee Contents


This Report scrutinises three Government proposals that amend the provision of legal aid funding: the proposed introduction of a residence test for civil legal aid claimants, so as to limit legal aid to those with a "strong connection" with the UK; the proposed restriction on the scope of criminal legal aid available to prisoners; and the proposal that legal aid should be removed for all cases assessed as having "borderline" prospects of success.

We are surprised that the Government does not appear to accept that its proposals to reform legal aid engage the fundamental common law right of effective access to justice, including legal advice when necessary. We believe that there is a basic constitutional requirement that legal aid should be available to make access to court possible in relation to important and legally complex disputes subject to means and merits tests and other proportionate limitations.

We are disappointed by the Lord Chancellor's suggestion that we ought to have reported on these proposals earlier. The Government's modified proposals were published in September and we have reported on them as soon as possible. We regret that the Secretary of State was not prepared to wait for our Report before proceeding further. We are not convinced that there is sufficient urgency behind these proposals, nor certainty about their human rights implications, to justify the Government in proceeding so quickly with bringing them into force.

The residence test

The vires of any regulations on the residence test that are introduced fall within the remit of the Joint Committee on Statutory Instruments, and we will draw their attention to our Report. In our view, since the residence test affects the right of effective access to court, which is recognised by the common law to be fundamental, the common law principle of legality applies: clear statutory authority to take away the right is required, rather than a general order-making power. Given the serious implications of the residence test for the right of effective access to court, and the desirability of full parliamentary scrutiny of the details of such a test, including the ability to amend the detail of the scheme, we believe such a test should be introduced by way of primary legislation, rather than under a generally worded power to alter the scope of legal aid by "omitting services".

We accept that the Government's rationale for the proposed residence test constitutes a legitimate aim for the purposes of both limiting the right of access to court and treating differently those who do not have the required length of lawful residence in the UK. We therefore conclude that a residence test is not incompatible per se with the right of effective access to court or the right not to be discriminated against in the enjoyment of that right. However, even measures which serve a legitimate aim are capable of giving rise to breaches of those rights in practice if they are not sufficiently carefully drawn to ensure that they only have a proportionate impact, and contain sufficient safeguards against the risk of such breaches occurring.

With regard to the residence test, various matters relating to asylum seekers remain unclear, and we invite the Government to clarify them as a matter of urgency. We also remain concerned that refugees may be unable to access civil legal aid during their first few months of lawful residence in the UK. We recommend that any proposal excludes refugees as well as asylum seekers, in order to ensure that the UK's international obligations are met.

We do not agree that the Government has considered all groups of children who could be adversely affected by the residence test, and we note that no Child Impact Assessment has been produced. We are concerned that the Government has not given full consideration to its obligations under Article 2 of the United Nations Convention on the Rights of the Child. We recommend that the Government exclude all children from having to satisfy the residence test.

We acknowledge the Government's argument that treatment within detention should be dealt with by the internal prisons complaints system. However, we do not accept that individuals who have suffered abuse whilst being detained by the State, so as to breach article 3, should not be eligible for legal aid in order to pursue compensation. We therefore recommend that the Government exclude paragraph 21 of Part 1 of Schedule 1 to the LASPO Act for detention cases from any proposed residence test.

It is clear that there have been, and will continue to be, cases where individuals cannot produce the required documentation to prove their residence in the time necessary to allow the legal process to be of use to them. We believe that the Government has not given sufficient thought to the difficulties some individuals may have in proving lawful residence, nor made a wide enough exemption to the test to ensure that some citizens are not prevented from accessing civil legal aid funding, and we recommend that the Government look at this matter again.

We welcome the Government's exemptions in certain cases for victims of domestic violence, although we remain concerned about the impact of these proposals on victims of domestic abuse and their ability to access legal aid funding in order to gain practical and effective access to justice for themselves, and in many cases, for their families. In this area we also call upon the Government to review its proposals.

We are also concerned about access to legal aid for the small group of individuals who are protected parties pursuant to the Mental Capacity Act 2005. This group, while small, has an obvious need for legal representation; given that its members are prohibited from litigating in person, any right of access to justice cannot be practically and effectively exercised if (subject to means and merits) they are denied legal aid. We do not think that the residence test can be justified in its application to this group.

We welcome the Government's decision to exempt certain trafficking cases from the residence test, but conclude that the exemptions do not go far enough. We recommend that the Government's exemptions be extended to cases where the status of the trafficking victim is contested, and to legitimate challenges to failure to prosecute or investigate.

The evidence we have received on the exceptional funding scheme under s. 10 of the LASPO Act, when taken together with the lack of a procedure to grant emergency funding, failure to exempt children and those who lack capacity, and lack of training provided to Legal Aid Agency employees who are assessing these cases, strongly suggests that the scheme is not working as intended. We therefore conclude that the Government cannot rely upon the scheme as it currently operates in order to avoid breaches of access to justice rights.

Prison law

Amending the scope of criminal legal aid for prison law is not inherently incompatible with the right of access to court. Rather, the human rights question is whether the Government's proposals for doing so give rise to a reasonable chance or a serious possibility of breaches of the right of effective access to justice in particular cases. Our report considers whether the proposals constitute a proportionate means of achieving the Government's legitimate aim, having regard to the scope of the exceptions which the Government proposes to carve out of the limitation, the adequacy of alternative avenues of redress for prisoners, and any other safeguards designed to ensure that the right of access to justice is not infringed.

We welcome in principle the Government's indication that civil legal aid will continue to be available to bring judicial reviews in relation to prison law matters, because this will preserve the possibility of access to court in the sorts of cases where such access is required. However, the Government cannot rely upon prisoner's retaining access to funding for judicial review, if the number of matter starts per year per firm remains restricted at the current level. We also ask the Government to give specific consideration to the combined effect of its residence test and prison law proposals, particularly given our criticism of the exceptional funding criteria, and invite the Government, in its response to this Report, to provide a full explanation of how access to justice rights will be maintained where both policies are in operation.

We welcome the commitment from the Lord Chancellor to put the Prisoner and Probation Ombudsman on to a statutory footing and we urge the Government to bring forward legislation as a matter of urgency.

We welcome the Lord Chancellor's proposal for further work into the issue of mental health and the criminal justice system. We are not satisfied that those prisoners who face mental health or other severe difficulties will be able to use effectively the internal prison complaints system. We recommend that the Legal Aid Agency retains the ability to grant funding for these cases where the implications for access to justice are clear.

We note that there are very few cases involving Mother and Baby Units. We also welcome the assurance given to us by the Lord Chancellor that the best interests of the child are taken into account, especially given the importance of such decisions being consistent with the law relating to children. However, we also note that there may be cases before the internal prison complaints system where legal representation would be desirable - such as those which are urgent or which involve third party evidence. In the light of the paramountcy test and the limited number of children involved, we therefore believe that the Lord Chancellor should urgently consider exempting these cases from his proposal.

We do not agree that advocacy services and internal prison complaints systems will be able to deal with cases relating to young offenders effectively. This could leave young people vulnerable and deny them their rights. The issues concerning young people may involve matters of housing law, social care law and public law of such complexity that they require access to legal advice and assistance in order to investigate and formulate their case. The availability of such funding in appropriate cases would be in accordance with the UNCRC. Nor do we think that the Government can rely upon a right to judicial review where the claimant is a young offender. We therefore recommend that the Government retain young offender cases, and specifically resettlement cases involving young offenders, within the scope of prison law funding.

Borderline cases

The Government's proposal in relation to borderline cases clearly pursues a purpose which is recognised as a legitimate aim for the purposes of justifying limitations on the right of effective access to court. The question is whether the impact of the proposal on the right of access to court is proportionate, which requires consideration of the sorts of cases likely to be affected by the proposal, the evidence demonstrating the benefits to be secured by it, and the safeguards against the risk that the reform will lead to cases not being brought where human rights law requires that they should be. The Government accepts that many of the cases affected by the removal of exceptional funding for cases with borderline prospects of success will include determination of human rights issues. In our view, this raises equality of arms issues, and a potential problem in relation to the creation of precedent to guide lower courts which will in turn affect a larger number of cases.

We were told in evidence by the Government that only cases that could be considered exceptional on their merits were funded as borderline cases, meaning that such cases could fall within the exceptional funding scheme criteria. However, the problems with exceptional funding that we identified earlier in this Report means that the Government cannot rely upon the law as it currently operates in order to meet its obligations to provide practical and effective access to justice.

In view of the significance of the cases likely to be affected by this proposal, we recommend retaining the Legal Aid Agency's discretion in these cases, or, if it must be changed, tightening the requirements rather than removing the possibility of such funding altogether.

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Prepared 13 December 2013