JUSTICE considers that the proposals for reform in Transforming legal aid are ill-considered, rushed and unsupported by evidence.
We consider that each of the proposals under consideration by the JCHR will undermine the rule of law and significantly restrict access to justice for individuals without independent means. We are specifically concerned that the proposals to restrict eligibility for prisoners and persons with less than 12 months lawful residence are incompatible with the right to the equal protection of the law and the right to equal treatment protected by Article 14 ECHR and the HRA 1998. Further proposals to restrict access to judicial review are based upon scant evidence of the need for reform and could undermine the long-term constitutional function of judicial review.
The Government has failed to answer serious concerns raised, including by representatives in both Houses, members of the senior judiciary, members of the legal professions and groups representing individuals affected by the proposed changes (from civil society and public bodies alike), about the constitutional function of legal aid, the impact of these measures on the effectiveness of our justice system and the credibility of our judiciary or the ability of individuals to hold public bodies to account.
We regret that this process has become less about a rational approach to making justifiable savings and more about a new “ideological” approach to the distribution of legal aid, based not upon the complexity or seriousness of individuals’ complaints, but about categories of persons deemed deserving or undeserving of public support by virtue of their status. This process appears to have become overtly politicised by Ministers suggestions in the press that cases funded by legal aid as time-wasting and unworthy and legal aid lawyers caricatured as “fat-cats” unduly drawing on public funds. Unsupported allegations that public law is used as a “promotional tool” for “left-leaning” organizations and lawyers undermine any confidence that the Government is approaching this exercise objectively. [1]
Yet, the Government proposes to introduce each of these significant changes by secondary legislation, over a short timetable of around 6-8 months, with little to no opportunity for effective parliamentary scrutiny.