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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