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

Annex—Standards engaged by the proposals

Common law

The right of effective access to court is recognised as a fundamental human right by the common law.[203] More recently the Court of Appeal has considered the right of access in its common law, constitutional position as inherent in the rule of law.[204]

The common law, constitutional principle of legality is of particular relevance in relation to prison law, and has been considered in a number of pre-Human Rights Act 1998 prisoner cases.

European Convention on Human Rights

Article 6—Right to a fair trial: In Golder v United Kingdom[205] the ECtHR confirmed that "the right of access [to a court] constitutes an element which is inherent in the right stated by Article 6 (1)."

Article 6 read with Article 14—Prohibition of discrimination: Applies mainly in relation to the residence test, with some potential application to prison law and groups who may be disproportionately affected.

Article 13—Right to an effective remedy: Applies particularly in relation to detainee cases engaging article 3.

European Union law

Article 47 Charter of Fundamental Rights: same scope as Article 6 ECHR

DIRECTIVE 2011/36/EU on preventing and combating trafficking in human beings and protecting its victims: in particular article 12(2) and the Council of Europe Convention on Action against Trafficking in Human Beings 2005 articles 10, 12 and 15(2).

Other international treaties and conventions

UN Convention on the Rights of the Child: in particular Articles 2, 3 and 12.

1951 UN Convention Relating to the Status of Refugees ("the Refugee Convention"): in particular article 16 regarding access to the courts

UN Convention on the Rights of Persons with Disabilities: Articles 12 and particularly Article 13: (1) States Parties shall ensure effective access to justice for persons with disabilities on an equal basis with others, including through the provision of procedural and age-appropriate accommodations, in order to facilitate their effective role as direct and indirect participants, including as witnesses, in all legal proceedings, including at investigative and other preliminary stages. (2) In order to help to ensure effective access to justice for persons with disabilities, States Parties shall promote appropriate training for those working in the field of administration of justice, including police and prison staff.

UN Convention on the Elimination of Discrimination Against Women (CEDAW): Article 2, requiring access to and effective enjoyment of rights on non-discriminatory grounds and article 15 in relation to equal access to and rights before the law.

International Convention on Civil and Political Rights: in particular Article 2(3)[206] and also 26.

UN Basic Principles on the Role of Lawyers: paragraphs 2 and 3.[207]

UN Principles and Guidelines on Access to Legal Aid in Criminal Justice Systems: in particular Principles 1, 2, and particularly 7 (prompt access for detained persons), 10 (equity of access) and Guideline 6.[208]

Guidelines of the Committee of Ministers of the Council of Europe on child friendly justice: paragraphs 35, 37, 38

203   See e.g. Raymond v Honey [1983] 1 AC 1; R v Lord Chancellor, ex p. Witham [1998] QB 575. Back

204   The Queen (on the application of) The Children's Rights Alliance for England v Secretary of State for Justice [2013] EWCA Civ 34. Back

205   (1979-80) 1 E.H.R.R. 524 Back

206  3.EachStatePartytothepresentCovenantundertakes:

(a)Toensurethatanypersonwhoserightsorfreedomsashereinrecognizedareviolatedshallhaveaneffectiveremedy,notwithstandingthattheviolationhasbeencommittedbypersonsactinginanofficialcapacity; (b)Toensurethatanypersonclaimingsucharemedyshallhavehisrighttheretodeterminedbycompetentjudicial,administrativeorlegislativeauthorities,orbyanyothercompetentauthorityprovidedforbythelegalsystemoftheState,andtodevelopthepossibilitiesofjudicialremedy; (c)Toensurethatthecompetentauthoritiesshallenforcesuchremedieswhengranted. Back

207   Governmentsshallensurethatefficientproceduresandresponsivemechanismsforeffectiveandequalaccesstolawyersareprovidedforallpersonswithintheirterritoryandsubjecttotheirjurisdiction,withoutdistinctionofanykind,suchasdiscriminationbasedonrace,colour,ethnicorigin,sex,language,religion,politicalorotheropinion,nationalorsocialorigin,property,birth,economicorotherstatus.

3.Governmentsshallensuretheprovisionofsufficientfundingandotherresourcesforlegalservicestothepoorand,asnecessary,tootherdisadvantagedpersons.Professionalassociationsoflawyersshallcooperateintheorganizationandprovisionofservices,facilitiesandotherresources. Back

208   Guideline 6 paragraph 47(c)Toensurethatprisonershaveaccesstolegalaidforthepurposeof submittingappealsandfilingrequestsrelatedtotheirtreatmentandtheconditions oftheirimprisonment,includingwhenfacingseriousdisciplinarycharges,andfor requestsforpardon,inparticularforthoseprisonersfacingthedeathpenalty,aswellasforapplicationsforparoleandrepresentationatparolehearings; Back

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© Parliamentary copyright 2013
Prepared 13 December 2013