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Further legal aid restrictions endanger access to justice, say MPs


Joint committee on human rights warns that Ministry of Justice should not fall into trap of 'knowing the price of everything but value of nothing'.

Source: the guardian

Joint committee on human rights warns that Ministry of Justice should not fall into trap of 'knowing the price of everything but value of nothing'.

Access to justice will be endangered if the government imposes further restrictions on legal aid, according to an influential cross-party parliamentary committee.

The warning that the Ministry of Justice should not fall into the trap of "knowing the price of everything but the value of nothing" comes ahead of next week's confidence vote in the leadership of the Law Society, organised by solicitors opposed to cuts. Criminal barristers and solicitors are also due to stage a half-day walkout on 6 January that is likely to disrupt courts across England and Wales.

The report by the joint committee on human rights expresses concern that common law rights will be undermined if the justice secretary, Chris Grayling, goes ahead with proposals to save £220m from the annual legal aid budget.

"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 report warns. "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.

"We are not convinced that there is sufficient urgency behind these proposals, nor certainty about their human rights implications, to justify the government in proceeding so quickly with bringing them into force."

On the MoJ's proposed one-year residence test, the committee accepts it is legitimate but calls for broader exemptions, specifically in cases involving children. It said: "Refugees may be unable to access civil legal aid during their first few months of lawful residence in the UK. This is particularly worrying as this is the time that many refugees may need assistance in securing services they are entitled to."

Under the MoJ reforms prisoners will lose legal aid for challenges over prison conditions but can keep it for legal challenges involving their liberty. The report said: "In some cases only the retention of public funding will be sufficient to prevent infringements of prisoners' right of access to court arising in practice."

Removing legal aid funding for borderline cases could affect human rights challenges and save only £1m a year, the JCHR added.

Dr Hywel Francis MP, chair of the JCHR, welcomed government concessions but warned: "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. We are particularly worried about the impact of the residence test on vulnerable groups such as children or victims of domestic violence."

Criminal solicitors say fees have not risen since 1996; they now face cuts of up to 30%. On Tuesday, the Law Society, which represents solicitors in England and Wales, is holding an emergency meeting to consider a no-confidence motion in Nicholas Fluck, its president, and Desmond Hudson, its chief executive.

Critics accuse them of entering into an agreement on legal aid reform with the justice secretary without a mandate. The society's leadership insists negotiations prevented imposition of price-competitive tendering and preserved defendants' ability to choose their lawyer.

Des Hudson believes negotiation was necessary to prevent the closure of even more law firms. "We have never agreed to the cuts," he told the Guardian. "We have never said we accept the residency test or flat fees or [restrictions on] judicial reviews.

"We have sought to engage with the government but if we had … [simply] manned the barrciades and said no, we would have left a clear path for the government to shut down more firms. The first [MoJ] proposals were for reducing the number of law firms from 1,600 to 400.

"We have to engage [with the government]. We opposed plans for the lowest price and retained client choice. I'm not sure that any faction wins or loses [by the vote] on Tuesday. If we are not careful, what the government is going to do is to jeopardise the quality and character of our criminal justice system."
Responding to the JCHR report, an MoJ spokesperson said: "We welcome the … recognition that it's legitimate to introduce a residence test for civil legal aid and to restrict the number of prisoners unnecessarily using legal aid. 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."

"We will consider this report carefully. As the Joint Committee acknowledge we have already added a number of safeguards so that the residence test will not apply to certain cases which broadly relate to individuals who are particularly vulnerable – such as domestic violence cases, the protection of children, or a persons' liberty.

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