A high-profile cross-party committee of peers and MPs has urged the government to reconsider its civil legal aid reforms, warning they could harm access to justice.
A report from the Joint Committee on Human Rights recommends ‘urgent’ action to amend the planned changes to remove prison law and borderline cases from the scope of legal aid and the introduction of a residence test for eligibility.
While accepting it is legitimate for the government to introduce a residence test for civil legal aid and to restrict the scope of prison law funding, the report calls for more and broader exemptions from the proposals to make it less likely that they will lead to breaches of the fundamental right of effective access to justice in individual cases.
Despite exemptions having been made to the proposed residence test, the committee said it was not satisfied that is will not affect vulnerable groups. In concludes that the test could ‘severely impact’ the right of access to court of those who lack specific mental capacity and are prevented from acting as litigants in person.
It recommends that any residence test be introduced through primary legislation to allow for full parliamentary scrutiny of a measure which it suggests ‘interferes with the right of effective access to court’.
In particular, the committee suggests all children should be exempt from any such test 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, but calls for certain cases, including those involving young offenders and those with mental illnesses, to be retained in scope to reduce the possibility of breaches of the right of effective access to justice in particular cases.
It recommends urgent reforms to the internal prison complaints system including placing the Prisons and Probation Ombudsman on a statutory footing.
The committee raises concerns over the removal of legal aid for borderline cases, which often include human rights issues, suggesting that might raise equality of arms issues and prevent the growth of the common law.
It is also concerned that the exceptional funding framework may not be working as intended and could leave certain groups unable to access legal aid when human rights law requires it.
Committee chair Dr Hywel Francis MP welcomed the exemptions that the government has made to the proposed residence test and the removal of funding for certain prison law matters.
However, while accepting that financial constraints require the government has to make difficult decisions, he said: ‘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.’
A Ministry of Justice spokeswoman said: ‘We believe these changes are an important part of ensuring that hard-working taxpayers can have confidence in the legal aid scheme that they pay for. At around £2bn a year we have one of the most expensive legal aid systems in the world.
‘In the current financial climate we have to make the legal aid bill more sustainable and concentrate the limited money we have on those cases where it is needed most.’