Reconsider Restrictive Proposals; Ensure Access to Justice
June 4, 2013
If the government is serious about consulting the public on these proposals, it should listen to the overwhelming concern about their negative impact on justice. The justice minister says the proposals are fair, but denying justice to those who need it the most is anything but
Benjamin Ward, deputy director of the Europe and Central Asia division

(London) – The United Kingdom government’s proposed legal aid changes would deny access to justice to the most vulnerable people in society and undermine the rule of law, Human Rights Watch said today.

A two-month consultation by the government on the proposed changes ended on June 4, 2013. “If the government is serious about consulting the public on these proposals, it should listen to the overwhelming concern about their negative impact on justice,” said Benjamin Ward, deputy director of the Europe and Central Asia division at Human Rights Watch. “The justice minister says the proposals are fair, but denying justice to those who need it the most is anything but.”

The proposed changes would:

  • Deny legal aid in civil cases to undocumented migrants and anyone who has been a legal resident for less than 12 months;
  • Introduce a price tendering system for legal aid in criminal cases that could deny defendants a choice of lawyer and replace specialist firms with large companies with little or no experience in this type of work;
  • Limit legal aid for people seeking to challenge government laws and policies through judicial review;
  • Deny prisoners legal aid to challenge their treatment in prison, requiring them instead to rely on internal prison complaint mechanisms.

The plans come on the back of large-scale cuts to legal aid for civil cases, which came into force in April. These cuts deny coverage in a wide range of areas such as housing, employment, immigration, and family law, although cases relating to issues such as asylum, domestic violence, child abuse, and immigration detention continue to be covered.

Justice Minister Chris Grayling has sought to justify the new proposals as a necessary cost-saving measure at a time of austerity. Grayling claims the proposals would save the country £220 million a year by 2018-2019, although it is unclear what that estimate is based on.

“These changes would undermine accountability and people’s ability to exercise their rights,” Ward said. “Whatever their impact on public spending, their damage to the rule of law is too high a price to pay.”

The proposed changes have drawn widespread criticism. More than 43,000 people have signed a petition to the justice minister opposing the cuts. The Law Society, which represents solicitors, has called the proposals “economically unworkable and possibly unlawful.” The chairman of the Bar Council has warned that the proposed changes will cause “irreversible damage” to the justice system. A former senior judge has said the reforms will be “absolutely devastating for the justice system as we know it,” and that “they will lead to many problems, certainly to miscarriages of justice.” Ninety senior barristers who specialize in judicial review have called on the government to withdraw those proposals, saying they would grant the government and other public authorities immunity from effective legal challenge.

One of the most controversial changes would be the price tendering system, awarding contracts to firms offering the lowest price, and denying clients any choice in who represents them. Under the proposals, cases could be allocated effectively at random instead of to lawyers with expertise in a particular issue. The proposed introduction of a residence test for civil legal aid is also very worrying, Human Rights Watch said. Under this requirement, only those who have lived in the country lawfully and continuously for at least 12 months at some stage in their life would be eligible. This would exclude many among the most vulnerable, including women fleeing from abuse and children who are victims of trafficking. British nationals who return from overseas and have not lived in the UK continuously for 12 months would also be affected.

In addition, those granted asylum would have to wait for 12 months before they could bring a new civil or family law case. Failed asylum seekers would be excluded from legal aid altogether, even if they cannot go back to their country because they would be at risk of torture or other ill-treatment there.

The proposal, says the government, would “ensure that legal aid would continue to be available where necessary to comply with obligations under EU [European Union] or international law.” In fact, EU and international law require the UK to ensure the right to an effective remedy, which is key in enabling people to enforce their human rights. If the UK makes these changes, it risks breaching these obligations, Human Rights Watch said.

The proposed changes would also significantly curb legal aid for judicial review. Under judicial review, people can challenge decisions by the government or public bodies that affect them. It allows people to hold the government to account.

Under the proposals, people seeking judicial review who do not satisfy the residence test would be ineligible for legal aid, as would be those seeking to challenge their treatment in prison. The proposals would also remove legal aid for “borderline cases,” in which it is not possible to determine whether they would have a 50 percent or more chance of success because of disputed law, fact, or expert evidence.

People seeking to bring complex cases, including those relating to a breach of their rights under the European Court of Human Rights (ECtHR) and asylum cases would no longer be eligible for legal aid if they are considered “borderline.”

Those who are ineligible for legal aid will be left with the choice of representing themselves in complex proceedings against government-funded lawyers, or not bringing a case at all.

“The whole idea of legal aid is to make the system fairer for people who can’t afford to pay for representation, but the government’s proposals would do just the opposite” Ward said. “The government should listen to the objections and take them to heart.”

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