Enforcing human rights Contents

Conclusions and recommendations

Access to justice and the rule of law

1.The ability to know about and enforce human rights is vital for the rule of law to be a reality. As well as the current review of the impact of legal aid reform in England and Wales, there is a pressing need for a much wider evaluation of the broader landscape of advice, support and means of resolution for legal problems to assess how they can collectively better serve individuals faced with a breach of their human rights. Such a process must also consider the economic viability of the whole system. (Paragraph 22)

The damaging effects of legal aid reforms

2.The ongoing Government review of the legal aid reforms must look again at the financial eligibility criteria with a view to widening access to a larger proportion of the population. At the least, it should consider extending the passporting of those on welfare benefits so that the part of the means test focussing on capital is aligned with welfare benefits criteria, thus making it fairer and more administratively expedient. (Paragraph 38)

3.The Exceptional Case Funding scheme was expected to support up to 7,000 cases per year, whereas in reality it only funds hundreds of cases. Urgent reform is needed to ensure that human rights cases are properly supported and therefore to ensure meaningful and effective access to justice. The LASPO review should consider how to remove barriers to accessing Exceptional Case Funding where this is needed to secure effective enforcement of human rights. This should include ensuring simplification of the application process, and access to legal advice and assistance (legally aid funded where necessary) to navigate complex legal process forms. (Paragraph 44)

4.We welcome the fact that the Government is considering the impact of the increased number of Litigants in Person in the LASPO review and the impact that this is having on access to justice in those individual cases, but also the burdens on the justice system more generally. We recommend that the review looks specifically at what options might exist to ensure that the Courts are properly supported so that justice may be served in such cases, including whether better use could be made of an amicus curiae system to assist the court or tribunal and unrepresented individuals. (Paragraph 47)

5.The Government must urgently resolve the question of how legal aid for discrimination and education matters will be made available from September 2018. We are concerned by the fall in numbers of those using the Mandatory Telephone Gateway, and those who are referred for face-to-face advice. The LASPO review must consider whether the Gateway is effective, and whether it is sufficiently accessible and readily navigable by all. (Paragraph 51)

6.We recommend that the Government consider whether immigration cases engaging the Article 8 right to private and family life be brought within the scope of civil legal aid, where they would be available on the means and merits test basis. (Paragraph 55)

7.The LASPO review must consider whether further amendments are necessary to evidential requirements for access to legal aid funding to ensure that women who have experienced domestic violence are able to access legal aid. (Paragraph 60)

8.The Ministry of Justice’s review of LASPO must examine the reasons for the low uptake of ECF in private family law cases, the impact of this on families’ abilities to secure effective access to justice, and whether the Courts are able to act consistently in the best interest of children, when individuals are not represented. (Paragraph 61)

9.While inquests are theoretically inquisitorial, in practice they often have a more adversarial nature. It is extremely difficult for families of the deceased to participate effectively without legal representation, leading to inequality of arms and consequent concerns about fairness, access to justice and compliance with the procedural requirements of Article 2 ECHR. If inquests are to remain inquisitorial, families must be given non-means tested funding for legal representation at inquests where the state has separate representation for one or more interested persons. Consideration should be given as to funding models that might be employed, such as whether there should be a requirement on public bodies to pay a proportion of their own legal costs to fund families’ representation. (Paragraph 74)

10.We share the concerns of many of our witnesses that the pressures caused by the reforms to legal aid are having a severe impact on legal aid professionals, damaging morale and undermining the legal profession’s ability to undertake legal aid work, leading to consequent grave concerns for access to justice, the rule of law and enforcement of human rights in the UK. (Paragraph 83)

The importance of a robustly independent judiciary

11.In our view, Government Ministers should be restrained in their reaction to court judgments, bearing in mind that in cases where they are a party, they can exercise appeal rights and that they can seek to change the law. (Paragraph 99)

12.We are sympathetic to the argument that extending the duties within the Constitutional Reform Act 2005 to cover all Ministers may have the effect of diluting those duties. Nonetheless, we consider that the Government as whole needs to be more proactive in its defence of the independence of the judiciary. The Lord Chancellor has a duty to have regard to the need to defend the independence of the judiciary. We recommend that the Government consider amending the Ministerial Code to reinforce the duties on Ministers to uphold the independence of the judiciary, whilst retaining the specific role for the Lord Chancellor in defending the judiciary. (Paragraph 107)

The importance of a robustly independent legal profession

13.The Government must create a positive environment in which lawyers are not impeded from bringing human rights cases against the Government. Lawyers should not be criticised because they represent ‘unpopular’ clients in human rights claims. Where there are concerns about lawyers’ conduct, the proper disciplinary channels should be used, and the Government should not seek to abuse their position to influence, intimidate or interfere in that process. (Paragraph 120)

The crucial role of the Equality and Human Rights Commission and other UK National Human Rights Institutions

14.It is difficult to understand why the EHRC should have weaker enforcement powers as concerns human rights violations than equality matters. The EHRC’s inability to bring cases on purely human rights grounds severely restricts its effectiveness. We therefore recommend that the Government harmonise the Commission’s enforcement powers in line with its powers in relation to equality, so that it can undertake investigations into named bodies for possible breaches of the Human Rights Act and provide legal assistance to individuals in Human Rights Act cases. (Paragraph 127)

15.The Commissions have the potential to play a more significant role in the enforcement of human rights. If they are given the necessary powers and use them assertively, then there is a case for their budgets to be increased to at least partially reverse the impact of the funding reductions they have experienced. This additional cost would be off-set to some extent by a reduction in legal costs as fewer individual cases would reach the Courts. At the same time, if they are to play a more significant role then greater scrutiny of their work by their respective Parliament or Administrations would be appropriate. (Paragraph 132)

The need for a culture of human rights

16.Media organisations and commentators should be accurate in their reporting of human rights cases. Where reporting is inaccurate, corrections should be published with the same due prominence as the original article. (Paragraph 148)

17.Government, NHRIs and human rights advocates should seek ways of engaging more effectively with the public about how different human rights are balanced, in order to address the perspectives that human rights are “for others and not for us” and that “political correctness” stifles debate. The Government should consider the introduction of a legal test to ensure that claims of conscience and faith are reasonably accommodated within the human rights framework. The rights of minority groups will always be vulnerable, and the acid test of an effective human rights system is that it must protect these groups, while ensuring the rights of the majority are also respected. (Paragraph 153)

18.Public authorities are under a duty to act compatibly with the Human Rights Act (s.6), including in administrative decision making. However, as the case of the Windrush generation detainees demonstrates, this is does not always happen. Public authorities must comply with their duty under s.6 of the Human Rights Act in order to prevent breaches of individuals’ human rights. (Paragraph 156)

19.We recommend that the Government should include comprehensive coverage of human rights across the curriculum at all key stages. (Paragraph 159)

20.In July 2017, the Solicitor General launched a Public Legal Education panel to support and drive forward legal education initiatives. We welcome this development and urge the Government to prioritise this work. (Paragraph 163)

21.No one would argue that individuals should not be protected from abuse by the State, that public bodies should be able to act without lawful authority or that torture, slavery and arbitrary detention are defensible. The UK’s legal framework allows individuals to protect their rights and gives the courts the task of deciding that balance in individual cases, within the parameters set by Parliament, which include the Human Rights Act. There is legitimate debate over how best to protect rights and where the balance should be struck if rights compete. But no-one should lose sight of the fact that enforceable rights, and the ability to enforce them, are the hallmarks of a civilised country. Government, Parliament, the media and the legal profession all have a responsibility to consider the importance of the rule of law, and the role that rights which can be enforced through an independent court system plays in that. (Paragraph 167)

Published: 19 July 2018