Response to consultation on reform of legal aid

The Ministry of Justice (MoJ) opened a consultation in November 2010 on proposals to reform legal aid in England and Wales (Green Paper).

Summary of the Commission's response

  • In responding to the Green Paper on the reform of legal aid in England and Wales, the Equality and Human Rights Commission has focused on consultation questions relating most clearly to its duties under Equality Act 2006. Our response does not look at the MoJs compliance or otherwise with the public sector equality duties.
  • The Commission has taken into account the requirements of the European Convention on Human Rights (ECHR), particularly Article 6(1) guaranteeing the right to a fair trial in the determination of civil rights and obligations. We have also had regard to the UKs obligations under other international human rights instruments that guarantee access to justice and protection against discrimination.
  • We agree with the proposed list of categories to be retained within the scope of civil and family legal aid, including discrimination cases that are currently within scope. Cases in these retained categories could potentially engage fundamental human rights.
  • The MoJ rightly recognises that discrimination challenges can help address prejudice and promote equality of opportunity. Retaining legal aid for this area of law also helps fulfil the UKs obligations under a number of human rights instruments.
  • However the Commission disagrees that areas of law should be excluded from legal aid including: family cases (if no domestic violence); clinical negligence; consumer/general contract; criminal injuries compensation; debt/housing cases where the home is not at risk; education; employment; non-detained immigration; welfare benefits.
  • We welcome the MoJs proposal for an exceptional funding scheme to mitigate the effect of these exclusions, but the scheme must comply with the Human Rights Act 1998 (HRA) to avoid legal challenges. We cannot be confident that the scheme would in practice tackle the problem of clients being deterred from seeking advice or being turned away by advisers if the case is out of scope.
  • We would remind the MoJ that, as a body that provides services and exercises public functions, it has a duty not to discriminate indirectly because of a protected characteristic. We believe that some of the proposals to reduce the scope of legal aid would have a disproportionate impact on protected groups and that the MoJ has not demonstrated that they can be objectively justified.
  • The Commission has serious misgivings about excluding employment cases from legal aid. This is likely to have a chilling effect on access to justice for workplace-based discrimination cases and would also undermine compliance with international obligations. Allowing no legal aid for representation in the higher courts could be in breach of Article 6(1) ECHR for complex employment cases or where the client would have difficulties representing themselves.
  • In relation to Article 6(1) ECHR, we have similar concerns about removing welfare benefits cases from the scope of legal aid. Excluding Asylum Support cases could lead to asylum seekers facing destitution, in breach of Article 3 ECHR. These cases, often urgent, are ill-suited to applications for exceptional funding.
  • We believe that family law, housing and immigration cases all potentially raise issues under Article 8 ECHR. Our full response explains these concerns in detail.
  • The Commission has serious concerns about the proposal for a single telephone gateway for access to advice. Research suggests that this method of delivery is not suitable for all clients and all problems. The MoJ accepts this proposal could have negative impact on clients with mental health, learning or cognitive impairments. We also have concerns about its impact on the legal aid supplier base.
  • We again remind the MoJ that it must not discriminate in the provision of services and public functions. A telephone advice gateway is likely to be indirectly discriminatory in relation to disability, and it is unclear whether this policy is objectively justified. The MoJ also has an anticipatory duty to make reasonable adjustments to avoid placing disabled people at a substantial disadvantage.
  • Taking all these factors into account, we also believe the proposal for a single telephone gateway could amount to a breach of Article 6(1) ECHR read with Article 14 (enjoyment of rights without discrimination) in relation to disability.

> Download our response in full (Word)

> see also: response to consultation on resolving workplace disputes

Last Updated: 21 Apr 2011