Committee says proposed legal aid cuts may breach human rights

http://www.theguardian.com/law/2013/dec/13/committee-warns-legal-aid-cuts-may-breach-human-rights

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Chris Grayling is a man who knows the price of everything and the value of nothing, the chair of an influential all-party backbench committee has suggested. Oscar Wilde's cynical jibe was twice put to the justice secretary when he gave evidence to the Joint Committee on Human Rights on 26 November and was then repeated by Dr Hywel Francis, a Labour MP, when he launched its report today.

The committee of MPs and peers examined three restrictions on legal aid that Grayling is in the process of introducing: removing civil legal aid for people who have not been resident in England and Wales for a year, limiting the scope of criminal legal aid for prisoners and refusing legal aid in cases assessed as having a "borderline" prospect of success.

"We are surprised that the government does not appear to accept that its proposals to reform legal aid engage the fundamental common law right of effective access to justice, including legal advice when necessary," the committee said. "We believe that there is a basic constitutional requirement that legal aid should be available to make access to court possible in relation to important and legally complex disputes, subject to means and merits tests and other proportionate limitations."

In a report that is clearly the product of political compromise, the committee accepted that restricting legal aid to those with a year's residence (subject to some exceptions) was not, as such, incompatible with their human rights. However, the MPs and peers added, even measures that served a legitimate aim were capable of breaching human rights if they were too widely drawn.

"We are particularly worried about the impact of the residence test on vulnerable groups such as children or victims of domestic violence," Francis explained.

Similarly, the committee acknowledged that complaints by prisoners about their treatment could be dealt with through an internal ombudsman system. "However, we do not accept that individuals who have suffered abuse whilst being detained by the state, so as to breach article 3, should not be eligible for legal aid in order to pursue compensation."

The committee was concerned that prisoners with mental health problems and mothers with babies in prison might not be able to use the internal complaints system. It also called on the government to put the prison ombudsman scheme onto a statutory basis, with guaranteed independence, "as a matter of urgency". And it said that housing claims by young offenders should remain within the scope of legal aid.

Turning to borderline claims, the committee told ministers they could not rely on the law as currently operated to provide practical and effective access to justice. It recommended that the government should retain the discretion to allow funding for exceptional claims.

"The government accepts that many of the cases affected by the removal of exceptional funding for cases with borderline prospects of success will include determination of human rights issues," the committee added. "In our view, this raises equality of arms issues, and a potential problem in relation to the creation of precedent to guide lower courts which will in turn affect a larger number of cases."

MPs and peers on the committee, who include leading QCs, were not convinced that a residence test could be introduced by statutory instrument. They recommended primary legislation instead.

More generally, the committee accepted Grayling's view that there was no right under common law to legal aid in all circumstances. But it said that common law undoubtedly recognised a right of effective access to court, "which means that legal aid may be required in certain circumstances in order for the right of access to be meaningful". It also criticised Grayling for trying to rush his changes through.

Meanwhile, the justice secretary's plan to cut defence barristers' fees by at least 30% in the most complex and demanding criminal cases came under attack in the House of Lords on Wednesday night. Lord Woolf, the former chief justice, said the cuts would "unintentionally cause serious harm to a profession that it will take years, if not generations, to undo". He continued: "What is at present a profession that the brightest and most able want to enter will be one that they will feel they cannot possibly enter because the risks of doing so are so great."

Lord Brown of Eaton-under-Heywood, a former law lord, recognised that times were hard. "But I just cannot accept that these difficulties justify cuts so inevitably and gravely damaging to the criminal bar, to the administration of justice and to the very rule of law."

Lord Hope, another former law lord, said that barristers "might be well advised to withdraw from their contracts lest they be sucked into an ever increasing pattern of cuts".

Lord Faulks, a Conservative QC, asked Grayling "to think very carefully about whether the effect of these changes—short, medium and long-term—are really worth the apparent saving".

The changes were also criticised by two former attorneys general, Lord Mayhew and Lady Scotland. The latter pointed out that the two ex-law officers were in agreement despite being "of different complexions politically and, some would say, physically".

In response, the justice minister warned criminal barristers to think "very carefully" about their planned protest meetings on the morning of 6 January, which are expected to close almost all criminal courts for half a day. Lord McNally said: "I believe that when a very distinguished profession talks about going on strike, it crosses a Rubicon that is very difficult to re-cross."

His remarks are unlikely to reassure lawyers that legal aid is safe in the government's hands.

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