Government should re-consider legal aid proposals, says Human Rights Committee

The Committee welcomes the exemptions the Government has so far made to its proposed residence test in the light of responses to its consultation, but is still not satisfied that the proposed test will not affect vulnerable groups. The Committee is also concerned that the exceptional funding framework may not be working as intended and could therefore leave certain groups unable to access legal aid when human rights law requires it. The Committee:

• recommends that any residence test be introduced through primary legislation, rather than secondary legislation, to allow for full Parliamentary scrutiny of the details of a measure which interferes with the right of effective access to court;
• suggests that all children should be exempt from any residence test;
• concludes that the test could severely impact the right of access to court of individuals who lack specific mental capacity, and are prevented from litigating in person; and
• asks the Government to consider expanding the limited exemptions from the residence test for victims of domestic violence.

The Committee acknowledges the Government’s argument that not all prison cases necessarily require legal assistance. However, the Committee calls on the Government to remove certain cases from the restriction to reduce the possibility of breaches of the right of effective access to justice in particular cases. The Committee:

• recommends that urgent reforms are made to the internal prison complaints system including placing the Prisons and Probation Ombudsman on a statutory footing with guaranteed independence.  
• is not satisfied that prisoners with mental health or other severe difficulties will be able effectively to use the internal prison complaints system and proposes that the Legal Aid Agency retain the ability to grant funding for these cases where the implications for  access to justice are clear;
• concludes that certain cases regarding placement in a mother and baby unit may not be suitable to be dealt with by the internal prison complaints system and calls on the Government urgently to consider exempting these cases from the proposal; and
• suggests that legal assistance should remain for young offenders, particularly for cases regarding resettlement.

The Committee is also concerned about the proposal to remove cases with borderline prospects of success from legal aid funding, as these cases may include determination of significant human rights issues. The Committee concludes that this may raise equality of arms issues, and lead to a potential problem in relation to the creation of precedent to guide lower courts which will in turn affect a large number of cases.

Chair's comment

Dr Hywel Francis MP, the Chair of the Committee, said:

"My Committee welcomes the exemptions that the Government has made to the proposed residence test and the removal of funding for certain prison law matters. Given the current financial constraints on government, we also accept that difficult decisions must be made 

However, access to justice is a human right of citizens in this country, regardless of the state of the economy. We would urge the Government not to fall into the trap of knowing the price of everything but the value of nothing. We are particularly worried about the impact of the residence test on vulnerable groups such as children or victims of domestic violence.

If the Government wants to rely on the internal prison complaints system, it must urgently bring forward proposals to strengthen the system by putting the Ombudsman on a statutory footing, with guaranteed independence. I look forward to the Government responding to our concerns about the implications of these proposals for the right of access to justice by agreeing to consider broadening the exemption for certain vulnerable groups."