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

Conclusions and recommendations


1.  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. (Paragraph 32)

2.  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. (Paragraph 37)

Residence test

3.  The right of effective access to court is a right which is recognised by the common law to be fundamental, and for that reason the common law principle of legality applies: clear statutory authority is required, and a generally worded order-making power cannot be relied upon (Paragraph 56)

4.  The vires of any regulations that are introduced fall within the remit of the Joint Committee on Statutory Instruments, and we will draw their attention to our Report. If the secondary legislation to bring the residence test into force is laid, they may wish to give close scrutiny to these issues. However, the Lord Chancellor told us in his evidence that the purpose of the residence test was to bring legal aid into line with other areas of Government policy where entitlement to certain benefits is subject to a residence test. We note that some of these are currently before Parliament in the Immigration Bill. 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". (Paragraph 59)

5.  The residence test proposal clearly engages both common law and Article 6 access to justice rights. Those rights are not absolute, and are capable of restrictions which serve a legitimate aim and are both necessary and proportionate in the pursuit of that aim. As the Government accepts the test will be easier for UK citizens to satisfy than other nationals, we consider that Article 14, read together with Article 6 is engaged; thus the test falls within the ground of "national origin" as specified in Article 14, and further, following the case of Bah v United Kingdom, immigration status can be considered as "other status" for the purposes of Article 14. (Paragraph 62)

6.  Treating people differently in relation to their access to publicly funded legal advice on the basis of their length of lawful residence requires objective and reasonable justification in order to be compatible with Article 14 ECHR in conjunction with the right of effective access to court in Article 6(1). The difference of treatment must serve a legitimate aim and, be both necessary and proportionate. (Paragraph 63)

7.  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 recognise that a residence test is used in other contexts, such as health, to regulate access to services and other public benefits. The European Court of Human Rights has also accepted that it was a legitimate aim for Belgium to seek to keep public money for those who have a certain degree of attachment to Belgium by defining the conditions of entitlement to legal aid so as to confine it to people lawfully resident in Belgium. 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. (Paragraph 68)

8.  Various matters relating to asylum seekers remain unclear, and we invite the Government to consider the evidence we received and confirm in particular, whether given that legal aid will be available to prepare and submit a fresh claim for asylum, that exemption will extend to all other areas of civil legal aid, and not solely to work completed on the fresh claim. We also invite the Government to clarify, in relation to asylum seekers who have submitted fresh claims for asylum which are then accepted, when the 12 month period of lawful residence will be deemed to commence, whether on the date the initial application is submitted, the date the fresh claim is submitted, or the date the fresh claim is accepted. (Paragraph 75)

9.  We remain concerned that refugees may be unable to access civil legal aid during their first few months of lawful residence in the UK. This is particularly worrying as this is the time that many refugees may need assistance in securing services they are entitled to, which could include the twelve month package of intensive support that the Lord Chancellor mentioned in relation to Gateway Protection Programme refugees. We recommend that any proposal excludes refugees as well as asylum seekers, in order to ensure that the UK's international obligations are met. (Paragraph 78)

10.  We welcome the Government's modifications to the residence test which exempts children under 12 months of age (who are lawfully resident at the point of application) as this group could clearly not have met the 12 month requirement of the residence test. (Paragraph 91)

11.  However, we do not agree that the Government has considered all groups of children who could be adversely affected by this test, and we note that no Child Impact Assessment has been produced. Such groups of children include children unable to provide documentation of residence and those who need help to gain access to accommodation and services. There is a particular problem in terms of the complexity and urgency of EU and international agreement cases, acknowledged during the passage of the LASPO Bill, but which have not been made an exception to the residence test. We are concerned that the Government has not given full consideration to its obligations under the second article of the UNCRC. (Paragraph 92)

12.  For reasons we explain below, we do not consider that the Government's argument that cases can always apply for exceptional funding is sufficient to meet UNCRC obligations or the Government's access to justice obligations. (Paragraph 93)

13.  We are sure that the Government does not intend vulnerable children to be left without legal representation. The proposals give little consideration to the access to justice problems that the proposal specifically creates in relation to children, such as the potential complexity and urgency of the cases for which children would need advice and representation, or in some cases, the need to find a litigation friend to assist the child with their proceedings because they have become separated from their families. (Paragraph 94)

14.  The Lord Chancellor's justification for the policy, namely contribution, in particular through the payment of tax, cannot apply in relation to children. Nor can it be said that children have chosen to make their home in the United Kingdom. We do not consider that the removal of legal aid from vulnerable children can be justified and therefore we recommend that the Government extend the exceptions further by excluding all children from having to satisfy the residence test. (Paragraph 95)

15.  We do not believe that the Lord Chancellor has given due consideration to the human rights implications in cases where the high threshold that is required to prove a breach of Article 3 is capable of being met, or indeed to the seriousness of the abuses the state can and has been accused of. (Paragraph 99)

16.  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 consider that this bar could affect an individual's article 13 right to an effective remedy from a national authority. We specifically recommend that the Government excludes paragraph 21 of Part 1 of Schedule 1 to the LASPO Act for detention cases from any proposed residence test. (Paragraph 101)

17.  We accept as a general matter of common sense the Lord Chancellor's answer that individuals who lack documentation should seek to rectify this with the Home Office. However, we are 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 are also concerned by the different examples we were provided with by our witnesses where documents have been lost by the Home Office, or indeed, for individuals who entered the country prior to the Immigration Act 1971, where such records have been destroyed by the Home Office. We ask the Government in its response to this Report to set out what the practice has been in the Home Office with regards to such records. 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 again. (Paragraph 111)

18.  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. This group of people is likely to experience practical problems in proving residence, and in any event may need to satisfy a further test to show evidence of domestic abuse in order to gain access to certain forms of civil legal aid funding in family cases, and we would ask the Government to review whether the exemptions should be extended to meet these concerns. (Paragraph 112)

19.  We are 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. (Paragraph 122)

20.  We do not accept the Lord Chancellor's response on this issue. The response does not take sufficient account of the obstacles already faced by litigants lacking mental capacity, as explained by the Official Solicitor in his evidence. If protected parties fail the residence test, they are prohibited from appearing before the Court as a litigant in person. To refuse funding to a protected party would mean that they could not litigate, there would be no need to assess whether their access was practical or effective, as they would have no access to the court whatsoever. (Paragraph 123)

21.  We do not consider that the exceptional funding scheme, even if it were operating correctly (a question we consider below), could appropriately satisfy the needs of those who are protected parties pursuant to the Mental Capacity Act 2005 because, as the Official Solicitor made clear in his evidence to us, the discretionary nature of the scheme is not a sufficient safeguard to meet the concern about the position of those with impaired mental capacity, who cannot gain access to justice in any other way. (Paragraph 124)

22.  We are concerned that the Government may not meet its current international obligations, given the narrow list of cases for which victims of trafficking will be eligible to receive civil legal aid funding under this proposal. It is not always practical for a victim of trafficking to return to their country of origin, although we acknowledge that these individuals may apply for asylum and would then be exempt from the residence test. We seek assurances from the Government that assistance and advice would be given to victims in this situation about this course of action. (Paragraph 129)

23.  We welcome the Government's decision to exempt certain trafficking cases, 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. (Paragraph 130)

24.  We acknowledge the specific concerns regarding victims of trafficking who are children, or whose age is disputed, and we repeat our earlier recommendation, that all children be exempt from the proposed residence test. (Paragraph 131)

25.  We do not have sufficient evidence to draw conclusions as to whether the lack of funding to complete what is a detailed and lengthy application process is creating a chilling effect on the numbers of applications, and we invite the Government to investigate this as a matter of urgency. (Paragraph 141)

26.  The evidence we have received, 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 LAA employees who are assessing these cases, strongly suggests that the scheme is not working as intended. In our opinion this is borne out by the number of grants of exceptional funding. 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. (Paragraph 142)

27.  We also recommend that the Government review the potential problems regarding the independence of decision-making at the Legal Aid Agency that may be created by the introduction of a residence test, and respond with detailed suggestions as to how it intends to prevent any appearance of a conflict of interest arising in residence test cases, where the LAA refuses to grant exception funding given that refusal can be challenged by way of judicial review, which itself requires exceptional funding, requiring the LAA to review its own funding decision. (Paragraph 143)

28.  For these reasons, we do not consider that the exceptional funding scheme is operating in such a way as to guarantee that legal aid funding will always be available whenever Article 6 ECHR requires it, and we therefore conclude that the Government cannot rely upon the scheme to ensure that the residence test is ECHR compliant. (Paragraph 144)

29.  It is not clear from the Consultation Paper whether the Government intends Associated Community Legal Service funded cases, such as judicial review in the context of a criminal case, to be subject to the proposed residence test. We invite the Government to consider exempting such cases from the residence test if it proceeds with the implementation of the proposal. (Paragraph 147)

Prison law

30.  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, we agree with our witnesses that 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. If a matter is outside the scope of criminal legally aided prison law funding, we can envisage cases where a prisoner is unable to receive legal advice and representation because firms do not have enough matter starts to take on the case. Since there is no obvious practical alternative means for prisoners to seek legal advice such as attending a Law Centre, there is a clear risk of breach of Article 6 and common law rights in such a case. (Paragraph 168)

31.  We 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 above, and also 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. (Paragraph 169)

32.  We welcome the commitment from the Lord Chancellor to put the Prisoner and Probation Ombudsman on to a statutory footing and, given that the statutory instrument to bring the prison law changes into effect has already been laid, we urge the Government to bring forward legislation as a matter of urgency. (Paragraph 177)

33.   We accept that not all disputes concerning prisoners require the intervention of, or provision of advice by, lawyers and we do not consider that there is a general problem with the internal prisoner complaints systems. However, the evidence from our witnesses highlights areas where those systems are not working effectively. In the light of the Government's reliance on these systems, when seeking to justify the proposed restriction on legal aid as a proportionate means of achieving its legitimate aim, improvements are necessary. (Paragraph 180)

34.  We consider that in some cases only the retention of public funding will be sufficient to prevent infringements of prisoners' right of access to court arising in practice. (Paragraph 181)

35.  We welcome the Lord Chancellor's proposal for further work into the issue of mental health and the criminal justice system. We note that the majority of the treatment cases funded since 2010 have been for prisoners who face mental health or other severe difficulties in effectively using the prison complaints systems. We are not satisfied that these prisoners will be able to use effectively the internal prison complaints system. We do not think that, given what appear to be very low numbers of funded cases, the extension of the restriction can be justified if it is to include prisoners with mental health problems or learning difficulties so severe that, even with the help of other prisoners or staff, they are not able adequately to formulate their complaint effectively. We recommend that the LAA retains the ability to grant funding for these cases where the implications for access to justice are clear. (Paragraph 188)

36.  We further recommend that the Government formulates and issues specific guidance to Governors as to the application of the Tarrant Test in light of the proposed changes to prison law funding. (Paragraph 189)

37.  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 the cases from his proposals. (Paragraph 195)

38.  We welcome the Lord Chancellor's concern about the need to improve the quality of support provided to people after detention. However, we are disappointed that the Government has pursued the removal of matters relating to young offenders and in particular resettlement cases from the scope of prison law funding. We are surprised it has chosen to do so before it has published the response to its own consultation—Transforming Youth Custody: Putting education at the heart of detention consultation. (Paragraph 205)

39.  We do not agree that advocacy services and internal prison complaints systems will be able to deal with these cases 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. (Paragraph 206)

40.  We do not think that the Government can rely upon a right to judicial review where the claimant is a young offender, noting that the young offender would require a litigation friend to pursue such an action, and would need to satisfy judicial review time limits. We recommend that the Government retain young offender cases, and specifically resettlement cases involving young offenders, within the scope of prison law funding. (Paragraph 207)

41.  We have considered the Lord Chancellor's response to our request for clarification over the practicality of Parole Board hearings without legal representation, in particular where previously lawyers would have remained present instead of the prisoner to hear a victim's impact statement or to be given access to sensitive material pursuant to Rule 8 of the Parole Board Rules. We are not satisfied with the response we have received, which fails to engage with the underlying problems of applying the prison law legal aid restrictions to the existing procedures and practices of the Parole Board. These are concerns raised with us by the Parole Board, and as such, the response that such hearings will continue to be fair, or that a different representative - unidentified in the Ministry's response - could be presented with sensitive material, misses the point. We urge the Government to reconsider the practicality of the prison law changes for these cases, even if they are only small in number. (Paragraph 213)

42.  Categorisation engages common law rights to liberty, as it can affect the likelihood of a prisoner being released. There are also clear cost implications of a prisoner remaining in too high a category, which may mean that the Lord Chancellor's cost-saving rationale may not be satisfied. We recommend that the Government look again at these proposals, and give full consideration to the potential for increased costs, which may affect the justification for its policy. (Paragraph 218)

Borderline cases

43.  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. (Paragraph 235)

44.  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 in the previous chapter means that the Government cannot rely upon section 10 as currently operating in order to meet its obligations to provide practical and effective access to justice. (Paragraph 236)

45.  The possible saving from the proposal to exclude borderline cases is estimated to be £1 million, and, given the small size of this saving, the accuracy of this estimate is questionable, particularly since the figures produced by the Government appear to consider one year of funding only (2011/12) and do not appear to take into account the likelihood that some of these 100 cases could qualify for section 10 exceptional funding if that mechanism were operating satisfactorily. 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. (Paragraph 237)

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Prepared 13 December 2013