Written evidence submitted by the Equality and Diversity Forum (LAI 006)

Introduction

The Equality and Diversity Forum (EDF) is a network of national organizations committed to equal opportunities, social justice, good community relations, respect for human rights and an end to discrimination based on age, disability, gender and gender identity, race, religion or belief, and sexual orientation. Further information about our work is available at www.edf.org.uk and a list of our members is attached.

The EDF considers that access to legal aid is vital to ensure the rule of law in a modern democratic society and the need for fairness to ensure a level playing field for access to justice. It appears that the Government, in introducing these proposed provisions, is attempting to ensure that it is out of reach of criticism.

The common law, the European Convention on Human Rights (ECHR),[1] the

European Charter of Fundamental Rights[2] and the International Covenant on Civil

and Political Rights[3] expressly recognise the right of access to legal aid in complex

legal proceedings. In the words of the late Lord Bingham:

…denial of legal protection to the poor litigant who cannot afford to pay is [the] enemy of the rule of law.[4]

The UN Committee for the Elimination of Discrimination against Women has been very critical of previous restrictions on the availability of legal aid[5] so further restrictions may well put the UK in breach of its international obligations.

Proposal to introduce a residence test for civil legal aid claimants, so as to limit legal aid to those with a ‘strong connection’ with the UK

The proposal is to require applicants for civil legal aid to satisfy a residence test in order for civil legal aid to be available. This means that the applicant must be lawfully resident in the UK, Crown Dependencies or British Overseas Territories at the time an application for civil legal aid was made and the individual would also be required to have resided lawfully in the UK, Crown Dependencies or British Overseas Territories for 12 months. (An exception will be made for asylum seekers while their application is being considered, but once asylum has been granted they will have to wait for another 12 months before they are eligible for legal aid).

The legal aid provider would need to see evidence that the client was lawfully resident and had previously been lawfully resident for 12 months, and they would need to retain copies of this evidence on file for audit purposes. This will put an onerous burden onto legal aid providers whose time is already very constrained to investigate their client’s immigration status as well as having to get proof of their length of residence. This is a complex and potentially time consuming task.

This proposal will take away access to civil legal aid, no matter how important the issue at stake. It appears to run contrary to a number of the UK’s international obligations as well as disproportionately disadvantaging non-UK nationals. It will exclude from access to legal aid:

• people in Britain who have lived most of their lives in Britain but were not aware of the need to apply for British citizenship after the Commonwealth country in which they were born gained independence;
• non-UK nationals with British spouses or British children;
• non-residents with a claim in the British Courts against the British Government;
• migrants who have entered lawfully but have not been resident for 12 months; and
• people granted refugee status within the last 12 months.

These people will be unable to access legal aid even if the claim concerns domestic violence, the consequences of being trafficked, homelessness or habeas corpus.

In relation to discrimination law claims, we consider that this provision will be contrary to the provisions in the European Equality Directives which say that ‘Member States shall ensure that judicial and/or administrative procedures, including where they deem it appropriate conciliation procedures, for the enforcement of obligations under this Directive are available to all persons who consider themselves wronged by failure to apply the principle of equal treatment to them’.[6]

Additionally, we consider that this provision would be contrary to article 16 of the Refugee Convention 1951, which states:

1. A refugee shall have free access to the courts of law on the territory of all Contracting States.
2. A refugee shall enjoy in the Contracting State in which he has his habitual residence the same treatment as a national in matters pertaining to access to the Courts, including legal assistance and exemption from cautio judicatum solvi.
3. A refugee shall be accorded in the matters referred to in paragraph 2 in countries other than that in which he has his habitual residence the treatment granted to a national of the country of his habitual residence.

Proposal to restrict the availability of legal aid to prisoners

The EDF is concerned about the proposal to restrict the availability of legal aid to prisoners for prison law matters. The proposal is that prisoners will no longer be able to get legal aid for advice and representation relating to treatment, sentencing or disciplinary matters unless they involve:

1. a determination of a criminal charge – to comply with Article 6 ECHR;
2. a review of on-going detention by the Parole Board; or
3. attendance at a disciplinary hearing if the adjudicating governor is satisfied that representation should be allowed based on ‘Tarrant’ criteria relating to the seriousness, complexity, difficulties for the prisoner, fairness to prisoners and staff.

This means that cases concerning the treatment of prisoners including prison conditions (food, access to work, access to services, religious worship); assault, including sexual assault by staff; discrimination; withholding correspondence; barring visitors; separation of mothers and their babies; and attendance at behaviour courses will all be excluded. It will also exclude legal aid for cases concerning categorisation, segregation, resettlement and other sentence issues.

We consider that this will have a significant adverse impact for certain equality groups.  It is well known that people from ethnic minorities are over-represented in the prison population. On 31 March 2013, 26% of the prison population, 21,462 prisoners, was from a minority ethnic group.[7] This compares to around one in 10 of the general population.[8]

There are also a disproportionate number of disabled people in prisons compared to the general population. This is harder to estimate: nevertheless, an estimated 36% of prisoners interviewed in a Ministry of Justice study were considered to have a disability when answers about disability and health, including mental health, were screened. Eighteen per cent (18%) of prisoners interviewed were considered to have a physical disability.[9] Twenty to thirty per cent of all offenders have learning disabilities or difficulties that interfere with their ability to cope with the criminal justice system.[10]

The consultation paper suggests that prisoners can just use the prisoner complaints mechanism as an alternative to legal aid. However, under existing rules, prisoners are only eligible for legal aid if their case cannot be resolved under the complaints mechanism. Consequently the current cases are already ones that have not or cannot be resolved by the existing complaints process.

Her Majesty’s Inspectorate of Prisons is critical of complaints management, which is slow and ineffective. They comment:

We are concerned by the proposal that criminal legal aid for prison law matters should be restricted to the criteria set out in the consultation paper, and that it is reliant on both an effective complaints system and on reasonable adjustments being made to ensure prisoners with learning difficulties and/or mental health problems can use the complaint system. Our inspection evidence suggests a distinct lack of confidence in the prisoner complaints system, particularly amongst those prisoners reporting as having a disability or a mental health issue. It is our view that prisoners with identified communication, mental health problems and learning difficulties should be able to obtain legal aid on the current basis.[11]

Additionally, any legal aid that is made available under these restrictions will have to be delivered by providers with a criminal law contract. We do not consider that this is appropriate. Most existing prison law experts are not criminal practitioners, but individuals and firms who specialize in prison law which is a niche form of public law.

Proposal that providers of legal services in applications for judicial review against public bodies should only be paid for work done on the case if the Court grants permission for the application to proceed

The EDF strongly disagrees with this proposal as it will weed out the strong cases as much as the weak ones; it will act as a disincentive to early settlement or resolution of cases and will discourage solicitors from taking any judicial review cases on behalf of individuals however strong their case.

The EDF considers that Judicial Review is a vital remedy and one of the most important ways for individual people to hold national and local public bodies to account for acting unlawfully. We note that the Ministry of Justice in its press release for the earlier Consultation on Reforming Judicial Review acknowledged ‘the important role that Judicial Review plays in holding Government and others to account’. The power to judicially review public decisions is an important reserve power enabling citizens to ensure good governance and further constraints on its use should be approached with considerable caution.

If this proposal goes ahead, it will create a situation where individuals will not be able to bring cases challenging the decisions of local authorities or central government because they will not be able to find lawyers willing to take the risk of not getting paid for this work. If, as seems likely, lawyers stop doing this type of work people facing injustice because of public law failings by public bodies will find it increasingly difficult to find anyone to advise them.

It is neither reasonable nor sensible to expect individuals to take judicial review action without legal advice. Litigants acting without advice are more likely to take cases that will not succeed, whatever their intrinsic merits, because the case has not been adequately prepared. They are also more likely to take weak cases which might have been deterred by good legal advice at the outset.

Any lawyer who did bring these challenges to court would have to pursue the court proceedings to make sure they were paid for their work. This would create a perverse incentive for cases to be pursued in court even when the initiation of judicial review is sufficient to persuade a public body to acknowledge its error and reconsider a decision (and there is ample evidence that this happens regularly). Lawyers will have an incentive to fight cases rather than to reach an early resolution which will waste court time and ultimately cost public funds. We do not believe that this is good value for money nor does it assist the Government’s objective of securing early settlement and preventing litigation wherever possible.

If it is introduced this provision will significantly limit access to justice for some of the most disadvantaged people. We consider that this means that it is likely to impact on access to legal rights contrary to Article 6 of the ECHR.

13 September 2013
Annex 1

Equality and Diversity Forum members

Action on Hearing Loss

Age UK

British Humanist Association

British Institute of Human Rights

Children’s Rights Alliance for England (CRAE)

Citizens Advice

Disability Rights UK

Discrimination Law Association

End Violence Against Women

Equality Challenge Unit

EREN – The English Regions Equality and Human Rights Network

Fawcett Society

Friends, Families and Travellers

Gender Identity Research and Education Society (GIRES)

JUSTICE

Law Centres Network

Mind

National AIDS Trust

Press for Change

Race on the Agenda (ROTA)

Refugee Council

RNIB

Runnymede Trust

Scope

Stonewall

The Age and Employment Network (TAEN)

Trades Union Congress (TUC)

UKREN (UK Race in Europe Network)

UNISON

Women’s Budget Group

Women’s Resource Centre

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