Final submission Equanomics and partners 4-6-13 fin · 2013-10-06 · Final submission from Equanomics-UK and partners: 4/6/13 2 Race equality and equality Impact 4. As race equality

Final submission from Equanomics-UK and partners: 4/6/13

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FINAL SUBMISSION FROM:

EQUANOMICS-UK AND PARTNERS

RESPONSE TO CONSULTATION: TRANSFORMING LEGAL AID

SUBMISSION DATE: 4TH JUNE 2013

Introduction and overview

1. This submission is made in response to the consultation Transforming Legal Aid:Delivering a more credible and efficient system launched by the Ministry of Justice (MoJ)on 9th April 20131. This submission, from Equanomics UK2, is supported by leadingorganisations involved in the promotion of race equality - the Afiya Trust, Black SouthWest Network, Black Training Enterprise Group, Coalition of Racial Justice (UK), theEvery Generation Foundation, Friends Families and Travellers, Just West Yorkshire, theMinority Ethnic Network Eastern Region, OLMEC, Operation Black Vote, the RaceEquality Foundation, Race on the Agenda, the Runnymede Trust and Voice4ChangeEngland. Equanomics-UK and our partners are members of a Race Equality Coalition3.

2. Our overarching concerns are set out in the first five parts of this response. Our overallresponse to each consultation question that we have considered follows the question inbold text. Our submission is divided into six parts:

a. introduction and overview (page 1);b. race equality and equality impact (pages 2-4);c. transparency and accountability (page 4);d. the importance of access to justice and the rule of law (pages 4-5);e. children, young people, care and education (page 6);f. responses to specific questions in the consultation document (pages 7- 25).

3. We gratefully acknowledge that we have drawn heavily on, and support, theconsultation submission made by the Discrimination Law Association (DLA)4. Ourresponses to the consultation questions draw in detail on the submission by the DLA.We share the profound concerns raised about the consultation proposals by a widerange of organisations and in particular by the Coram Children’s Legal Centre, theEquality and Diversity Forum (EDF), the Howard League for Penal Reform, theImmigration Law Practitioners Association5, the Public Law Project6 and the Society ofBlack Lawyers and five other key organisations.

1https://www.gov.uk/government/consultations/transforming-legal-aid-delivering-a-more-credible-and-

efficient-system2

Equanomics-UK addresses race equality in the UK from an economic perspective. It is a broadbased coalition of individual activists and voluntary and community based organisations. It seeks tobuild awareness of the impact of poverty on BAME communities and develop appropriate action.3

The Race Equality Coalition brings together existing national, regional organisations and otherfounder members to fulfil our shared objectives to challenge racism by strengthening and supportingwhat we already do to influence public policy, the media and key decision makers.4

http://www.discriminationlaw.org.uk/submissions5

http://www.ilpa.org.uk/resources.php/17895/transforming-legal-aid-draft-ilpa-response-to-the-ministry-of-justice-consultation-24-may-2013


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Race equality and equality Impact

4. As race equality focused Voluntary and Community Sector (VCS) organisations, we fullyconcur with the statement made by Chris Grayling7, the Lord Chancellor and theSecretary of State for Justice that: ‘access to justice should not be determined by yourability to pay’ and ‘legal aid is the hallmark of a fair, open justice system. ‘ However ourcollective experience of racial discrimination and racial inequalities and analysis of theproposals lead us to believe that, if implemented, the proposals would seriously reduceaccess to justice, increase racial and other inequalities and adversely impact on children, youngpeople and adults from BME communities. This submission sets out our central concerns.

5. We know that children, young people and adults from BAME communities aredisproportionately represented in care, secure institutions and prison. We alsorecognise that any changes designed to impact on immigrants, migrants and others bornoverseas will disproportionately impact on people from BAME communities.

6. We share the concerns expressed by the London Criminal Courts Solicitors Association,the Society of Asian Lawyers, the Society of Black Lawyers, the Association of MuslimLawyers, the British Nigeria Law Forum and the Black Solicitors Network8 that:

a. ‘The reforms will reduce the number of criminal law firms in the United Kingdomfrom 1,600 to 400 and are engineered to ensure that small firms will be mostaffected. It is estimated that, as a result, 90 per cent of small BAME firms servinglocal communities will go out of business.’

b. ‘In their place we will see larger, centralised, non-local firms spring up. They will notreflect the diversity of the existing firms or the communities that they support. For acity which is meant to celebrate ethnic diversity and inclusion, this is a pitiful state ofaffairs.’

c. A solicitors firm will be allocated and woe betide a defendant who wants a differentsolicitor who he/she believes better understands their case. Once allocated a legalaid solicitor, that defendant will be saddled with the same firm throughout theircase.’

d. ‘These reforms will inevitably lead to miscarriages of justice on a par with the casesof the Birmingham Six and Guildford Four in the 1970s. As Lord Woolf has publiclystated, the reforms will lead to a “factory of mass produced justice” and“miscarriages of justice”.

e. ‘And by the Government’s own analysis, the shake-up will disproportionately affectBAME defendants because they are disproportionately represented in the criminaljustice system. The Government document also acknowledges that BAME firms willbe worst hit. And the justification? It’s a "proportionate" means of achieving alegitimate aim (ie, saving money).’

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http://www.publiclawproject.org.uk/documents/Draft_response_re_legal_aid_for_jr_conditional_on_permission.pdf7Ministerial forward, https://consult.justice.gov.uk/digital-communications/transforming-legal-aid

8http://www.standard.co.uk/news/uk/letters-please-rethink-criminal-legal-aid-reform-8615988.html


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7. We have serious concerns about how the MoJ has assessed the likely equality impact of

each of its proposals. We are extremely concerned that the government itself, including

the Lord Chancellor and Secretary of State for Justice, as well as individuals and groups

responding to this consultation may be misled by what has been included as Annex K

“Equalities Impact” filling 16 pages. We agree with the DLA that the process described in

Annex K to assess the equality impact on clients/potential clients and on legal aid

providers is seriously flawed and therefore unsafe to rely upon. Annex K fails to

demonstrate that the MoJ has indeed discharged its statutory equality duty.

8. Paragraphs 1.2 and 4.1 of Annex K both summarise the duty of the MoJ under s.149 of

the Equality Act 2010 (EA) namely to have due regard to the need to eliminate

discrimination harassment, victimisation and other unlawful conduct, to advance

equality of opportunity and to foster good relations.

9. Paragraph 4.2 states the “primary objective” of the proposals, namely “to bear down on

the cost of legal aid, ensuring that we are getting the best deal for the taxpayer and that

the system commands the confidence of the public.” Paragraph 4.3 states that the MoJ

believes these objectives to be legitimate aims which it intends “to pursue with regard

to principles of equality and non-discrimination.”

10. After dismissing the possibility of any proposals being directly discriminatory or causing

harassment or victimisation, the MoJ accepts that the proposals will have a

disproportionate impact on some persons with protected characteristics and therefore

could be indirectly discriminatory, but it is satisfied that where it has identified a risk of

disproportionate adverse impact, “such treatment constitutes a proportionate means of

achieving a legitimate aim for the reasons set out above and in the paragraphs below”

(para. 4.4).

11. We agree with the DLA that virtually no substantive consideration is given to the duty on

the MoJ to have due regard to the need to advance equality of opportunity. Section

149(4) provides that steps to meet the different needs of disabled people include steps

to take account of disabled people’s disabilities. Section 149(3) explains that this

includes the duty to have due regard to the need to:

a. remove or minimise disadvantages suffered by persons who share a protectedcharacteristic that are connected to that characteristic;

b. take steps to meet the different needs of persons who share a protectedcharacteristic;

c. encourage persons who share a protected characteristic to participate in any activityin which participation by such persons is disproportionately low.

12. There is clear evidence of the overrepresentation of people from BAME communities in

the care system, those stopped and searched, those who are subject to the criminal


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justice system and imprisoned and in the unemployment statistics and poverty analyses.

It is clear to our organisations, that BAME communities and individuals are amongst

those most likely to be users of civil legal aid and the criminal justice system. We are

concerned that the MoJ’s analysis in Annex K omits a careful scrutiny of the current

proposals to identify how race (including colour, ethnic or national origins and

nationality) , disability or for that matter other protected characteristics may be

adversely affected by the proposals and /or what steps it should take to remove or

minimise disadvantages or improve access to legal aid or to meet different needs in

respect of legal representation in the areas affected by the proposals.

13. Like the DLA, we can see no evidence in Annex K that with regard to this package of

major proposals the MoJ has heeded the obligations of public authorities under s.149 of

the Equality Act 2010, as defined by the courts, to give rigorous objective proportionate

consideration to all of the elements of the duty before policy decisions are made; the

courts have made clear that avoiding discrimination is not enough.

14. The details of the proposals affecting civil legal aid indicate minimal savings; the overall

approach of the consultation document suggests that the proposals are driven far more

by political and/or ideological concerns than concerns for equality and the fair

administration of justice. Further, the nature of the proposals is such that they are likely

to give rise to extensive litigation to clarify or challenge or make sense of new

restrictions. This will involve a drain on the public purse (not included in the MoJ’s

calculations) in direct conflict with the claimed financial justification for these proposals.

15. It is particularly unacceptable that the government is choosing to traduce the rights of

minority groups who are most likely to suffer inequality and discrimination and so to

require the protection of the rule of law, a point recognised and enshrined in English law

since the Magna Carta. We agree with the concerns identified by the Society of Black

Lawyers and others and urge the MoJ and the Government to think again before

introducing rash, cataclysmic and irreversible reforms, which will have a devastating

effect on the rule of law in this country.

Transparency and accountability

16. Like the DLA, we were surprised and disappointed to note that the MoJ intends “subjectto the outcome of the consultation” to implement these proposals through secondarylegislation. This means that, despite the potential major adverse impact of many of theproposals, there will be no opportunity for full parliamentary debate or amendment onthese significant changes affecting both civil and criminal legal aid systems. This factmakes it all the more important that the MoJ does take full account of the comments itreceives before embarking on secondary legislation.

17. We hope that the Ministry of Justice will take proper and considered account of theserious concerns raised by our organisations, and others, and significantly amend theproposals. To this end, we wish to formally request the publication of all consultation


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responses – we believe that this would be in the interests of justice and it would beentirely consistent with the provisions of the Freedom of Information Act 2000.

The importance of access to justice and the rule of law

18. Like the DLA, we believe that the matters at issue in this consultation relate directly tothe maintenance or otherwise of the rule of law and access to justice in this country. Weagree with the DLA that legal aid is not an add-on, which can easily be put to one sidewhen times are hard. The right to legal representation, paid for by the state wherenecessary, to protect and secure legal rights, without discrimination, is recognised asfundamental to a fair, just and humane democratic society protected by keyinternational instruments9 requiring such rights to be made available to all persons.

19. The UN Convention on the Elimination of All Forms of Racial Discrimination, to which theUK is a signatory, requires signatories to take a range of steps which include mattersaround access to justice10. We believe that, if implemented, the proposals would bothseriously reduce the ability of individuals to challenge alleged breaches by theGovernment and /or public authorities, public institutions, national or local andundermine compliance with this key UN Convention.

20. Like the DLA, we are also concerned that a likely consequence of the UK government’s

current proposals is that illegal acts by the state and bodies acting on behalf of the state

such as G4S or ATOS will be shielded from challenge, save by those with sufficient

private means to do so. We fear that this new impunity will result in increased hardship,

disadvantage and inequality for the most vulnerable members of our communities and

in particular those from BAME communities.

9UN International Covenant on Civil and Political Rights - Articles 3, 14 and 26; European

Convention on Human Rights (ECHR) Articles 13, 6 and 14; EU Charter of Fundamental RightsArticles 47 and 21.10

[Article 2 (2)]: ‘States Parties shall, when the circumstances so warrant, take, in the social,economic, cultural and other fields, special and concrete measures to ensure the adequatedevelopment and protection of certain racial groups or individuals belonging to them, for the purposeof guaranteeing them the full and equal enjoyment of human rights and fundamental freedoms.’[Article 4(c)] :States Parties shall ‘not permit public authorities or public institutions, national or local,to promote or incite racial discrimination.’ [Article 5 (a)]: ‘In compliance with the fundamentalobligations laid down in article 2 of this Convention, States Parties undertake to prohibit and toeliminate racial discrimination in all its forms and to guarantee the right of everyone, withoutdistinction as to race, colour, or national or ethnic origin, to equality before the law, notably in theenjoyment of the following rights: (a) The right to equal treatment before the tribunals and all otherorgans administering justice. [Article 6]: ‘States Parties shall assure to everyone within theirjurisdiction effective protection and remedies, through the competent national tribunals and otherState institutions, against any acts of racial discrimination which violate his human rights andfundamental freedoms contrary to this Convention, as well as the right to seek from such tribunals justand adequate reparation or satisfaction for any damage suffered as a result of such discrimination.’http://www.ohchr.org/EN/ProfessionalInterest/Pages/CERD.aspx


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Children, young people, care and education

21. We share the concerns identified by the Coram Children’s Legal Centre that these

changes would mean legal aid will not be available to children, young people and

parents in custody to get legal support to deal with many of the important issues that

they face. We are also concerned that there are no proposed exemptions for children or

vulnerable prisoners. We also note with significant concern the Coram Children’s Legal

Centre’s assessment that the proposals will dramatically affect the assistance that is

available to children, young people and parents in prison, without delivering significant

savings (just 1.12% of legal aid spending in 2011/12 was spent on prison law).11

22. We note the Howard League for Penal Reform’s assessment that children released from

secure institutions will face increased homelessness and associated dangers because it

will no longer be possible to challenge local authorities who inappropriately treat them

as homeless when they leave secure institutions12. The Howard League also argues that

the changes “may also lead to a collapse in justice in the very place where it should be

paramount – within prison walls. This will impact on children as well as adults. These cuts

build on proposed reforms which seek to deny people the opportunity to pursue judicial

reviews. These are crucial in highlighting and preventing violence in jails and making sure

that young people can rebuild their lives, which helps keep the public safe.”

23. We note that the Children’s Commissioner for England’s report "Always Someone Else's

Problem" details the scale and nature of children illegally excluded from school. We

note that the Children’s Commissioner conservatively estimates that this affects

thousands of children in several hundred schools13. The Children’s Commissioner’s

report also reports that it is ‘of special concern that many of those who are illegally

excluded also come from the groups suffering inequality, coming from particular ethnic

backgrounds, or having special educational, behavioural or other needs. They are among

our most vulnerable, and being made more so.’

24. We note that in 2012 the Children’s Commissioner commented on the importance of

judicial review in securing the rights of children14. We are therefore profoundly

concerned about the potential impact of the MoJ’s proposals on the already limited

ability of children and parents to access justice and legal support when they are the

subject of illegal exclusions and /other forms of discrimination in the education field.

11

http://www.childrenslegalcentre.com/userfiles/CCLC_briefing_transforming_legal_aid_children&yp_updated.pdf12

http://www.howardleague.org/legal-aid/13

http://www.childrenscommissioner.gov.uk/content/press_release/content_501 andhttp://www.childrenscommissioner.gov.uk/content/publications/content_66214

http://www.childrenscommissioner.gov.uk/content/publications/content_645


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RESPONSES TO SPECIFIC QUESTIONS IN THE CONSULTATION DOCUMENT

Q1. Do you agree with the proposal that criminal legal aid for prison law matters should

be restricted to the proposed criteria? No

25. What is proposed is restricting legal aid for prison law to criminal law providers and to

cases that:

a. involve determination of a criminal charge – to comply with Art. 6 ECHRb. engage Art. 5.4 ECHR regarding review of on-going detention by the Parole Boardc. attendance at a disciplinary hearing if the adjudicating governor is satisfied that

representation should be allowed based on “Tarrant” criteria relating to theseriousness, complexity, difficulties for the prisoner, fairness to prisoners and staff etc.

26. This will exclude legal aid for cases listed in Annex B concerning the treatment of

prisoners including prison conditions (food, access to work, access to services, religious

worship) assault, including sexual assault by staff, discrimination, withholding

correspondence, barring visitors, separation of mothers and their babies, attendance at

behaviour courses. It will exclude legal aid for cases concerning categorisation,

segregation, resettlement and other sentence issues also listed in Annex B. We strongly

opposes the removal of all such cases from the scope of legal aid.

27. No argument is put forward as to why, if discrimination remains within the scope of legal

aid for all persons not in custody it should be removed from the scope of legal aid for

prisoners who in virtually every way are far more vulnerable, far more isolated than

other persons who may have grounds to bring a discrimination claim.

28. The consultation document refers to prison law cases by providers with criminal law

contracts. The DLA believes that it is essential to maintain stand-alone prison law

contracts for the few specialist not-for-profit providers, such as the Prisoners’ Advice

Service and the Howard League for Penal Reform, who have no prospect of income from

private clients or from routine criminal litigation. It would appear that providers with a

public law contract would continue to be able to apply for judicial review to challenge

policies and practices of prison establishments including matters to be excluded from

criminal legal aid contracts; however most such providers will not have the same

specialist knowledge of this unique area of law and may be reluctant to use their limited

number of ‘matter starts’ for prison law cases.

29. The prison population does not reflect the general population15. People with certain

protected characteristics are over-represented. In 2012, Black, Asian, and other non-

15We have drawn on data compiled and published by the Prison Reform Trust in Bromley Briefing

Prison Factfile, November 2012. The main sources relied upon by the Prison Reform Trust in


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white ethnic minority prisoners comprised 25% of the prison population but, from the

2011 Census, only 14% of the population of England and Wales. Black prisoners alone

comprise 10% of the prison population, which is three times their representation in the

general population (3.3% in the 2011 Census). In August 2012, of children under 18 in

prison, 37% were from Black or other minority ethnic groups.

30. Approximately 36% of people in prison have a physical or mental disability. In 2008 a

mobility impaired disabled prisoner succeeded without the need for a full hearing of his

application for judicial review when the Secretary of State for Justice, acting on behalf of

the Prison Service, agreed to allocate him to a disabled cell, to allow him to use a

motorised wheelchair and to review and amend its policies relating to disabled prisoners

in order to ensure compliance with the requirements of the Disability Discrimination Act

1995 (DDA)16. There continue to be claims by disabled prisoners against both Prison

Service prisons and private prisons challenging failure to assess and to address their

disabilities by making reasonable adjustments.

31. We know from the work of black mental health charities and others 17 that Black men are

over represented as persons sectioned under the Mental Health Act18. We also know that Black

families have been in the forefront of challenging deaths in custody of Black mental health

service users. Evidence published by the Mental Health Foundation19 and others shows that, in

general, ‘people from black and minority ethnic groups living in the UK are:

a. more likely to be diagnosed with mental health problems;b. more likely to be diagnosed and admitted to hospital;c. more likely to experience a poor outcome from treatment;d. more likely to disengage from mainstream mental health services, leading to social

exclusion and a deterioration in their mental health.’

32. Prisoners with learning disabilities or learning difficulties comprise between 20% and

30% of all prisoners. Of children under 18 in custody, 25% have special educational

needs, 23% have learning difficulties. Prisoners with learning disabilities are frequently

excluded from elements of the prison regime including offending behaviour

programmes that are needed to secure their release. Prisoners with learning difficulties,

autistic spectrum conditions and mental health needs have historically found it difficult

to obtain legal advice in relation to their rights. In R (Gill) v Secretary of State for Justice

20 a prisoner with a learning disability succeeded in an application for judicial review

compiling this Factfile are reports by HM Chief Inspector of Prisons and reports by the Ministry ofJustice.16

http://www.leighday.co.uk/News/Archive/2008/January-2008/Victory-in-prisoner-disability-discrimination-case17

http://www.blackmentalhealth.org.uk/18

http://www.mentalhealth.org.uk/help-information/mental-health-a-z/B/BME-communities/19

http://www.mentalhealth.org.uk/help-information/mental-health-a-z/B/BME-communities/20

[2010] EWHC 364 (Admin) Case No. 10099/2009


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under the DDA; the court held that the Secretary of State failed to make reasonable

adjustment to enable him to undertake offending behaviour work and by such failure

the Secretary of State also breached his disability equality duty.

33. Reports by HM Inspector of Prisons and the MoJ include disparity of treatment of Black

prisoners compared to their white counterparts, such as being more likely to have force

used against them or to spend more time in the segregation unit. Black prisoners were

also found to hold more negative attitudes towards the complaints system than their

white counterparts.

34. In September 2012, foreign national prisoners made up 13% of the overall prison

population. Their origins, their reasons for being in the UK and the nature of their

offences vary widely. Resident economic migrants or asylum seekers who have

committed an offence will share little other than non-UK nationality with foreigners

imprisoned for drug importation. Foreign prisoners, many with limited knowledge of

English and wholly unfamiliar with UK criminal justice system are now likely to be doubly

denied access to legal aid to challenge their treatment within the prison system: the

removal of most prison law case from criminal law contracts and their likely failure to

meet the residence test which applies to civil legal aid public law contracts.

35. In considering the equality impact of the proposal to remove legal aid for prison law

cases listed in Annex B, including cases of discrimination the MoJ notes: “The LAA has

indicated that of the 11 treatment cases to receive prior approval since July 2010 a

significant proportion have involved prisoners with learning difficulties and/or mental

health issues. The proposal could therefore potentially have an impact on this group of

prisoners.”

36. No indication is given as to how the MoJ weighed the likely adverse impact on disabled

prisoners against its stated aims before concluding that taking most prison law cases out

of scope for legal aid is a proportionate means of achieving those aims. Nothing is stated

in Annex K regarding how in proposing this change, the MoJ has considered its duty to

have due regard to the need to advance equality of opportunity including the need to

take steps to meet the different needs of disabled people. If the quality of British justice

is measured by how it treats the most vulnerable then it is difficult to appreciate the

MoJ’s conclusion that “The prison law cases taken outside of scope … are not of sufficient

priority to justify the use of limited public funds and would be dealt with more efficiently

and effectively through non-legal channels, such as the prison complaints system.”

37. We share the DLA’s concerns regarding this conclusion for two reasons. Firstly the

consultation document offers no evidence that the complaints system will provide

adequate means for resolving all of the types of prison law issues that are to be

removed from scope, so that the complaints system is a suitable alternative to


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adjudication by the courts. Secondly the amount to be saved under this proposal is a

very small proportion of the total legal aid budget. The current amount of public funds

spent on all legal aid for prison law cases in England and Wales is stated to be 1.12% of

total legal aid spending in England and Wales; the amount likely to be saved under this

proposal is stated to be approximately £4m per year (footnote 17), although it is also

stated (para 3.15) that the proposal would bring the level of spending down to the

2008/9 level, which would appear to be a reduction from £23m to £21m or a saving of

just £2m.

38. Rather than a commitment to ensure reasonable adjustments are made to ensure

disabled prisoners are not put at a substantial disadvantage in respect of all aspects of

the prison regime as required under section 29(7) and Schedule 2 of the EA, to “mitigate

any potential impacts on offenders with learning difficulties, the National Offender

Management Service is committed to the provision of comprehensive screening to

ensure that reasonable adjustments are made for all prisoners with learning disabilities

to ensure all prisoners are able to use the prisoner complaints system”.

39. In her 2010-11 Annual Report HM Chief Inspector of Prisons for England and Wales,

commented that almost half the prison establishments at that time did not have an

overarching diversity policy covering all of the protected characteristics. This gives rise

to concern that complaints of discrimination, including complaints of failure to make

reasonable adjustments for disabled prisoners, may not be adequately dealt with.

40. We believe the matters that we have raised above should have been considered by the

MoJ in its Equalities Impact. The fact that this does not appear to have happened further

demonstrates the inadequacy of the equality scrutiny that has been given to this

unnecessary proposal.

Q.4 Do you agree with the proposed approach for limiting legal aid to those with a strong

connection with the UK? No.

41. The proposed residence test for eligibility for civil legal aid would require a person:

a. to be lawfully resident in the UK, Crown Dependencies or British OverseasTerritories at the time of their application for legal aid; and

b. to have resided lawfully in the UK, Crown Dependencies or British OverseasTerritories for 12 months.

42. A separate test would apply to asylum seekers who remain eligible for civil legal aid

while their asylum application is under consideration.

43. The DLA and other legal experts suggest that the proposed residence test directly

contradicts the constitutional principle of equality before the law which is enshrined in


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the international instruments referred to above. It is a specific obligation under Article

16 of the 1951 Refugee Convention.

44. We note that, unlike the above proposal to restrict the scope of legal aid, this proposal

would restrict which individuals are eligible for legal aid for any type of civil matter. This

would include discrimination claims, an area which remains within the scope of civil legal

aid. The EA protects any person against discrimination, harassment and victimisation

based on any of nine protected characteristics and provides a statutory right to secure

redress before relevant tribunals or courts. The EU anti-discrimination directives 21 all

require the UK to “ensure that judicial and/or administrative procedures …for the

enforcement of obligations under this Directive are available to all persons who consider

themselves wronged by failure to apply the principle of equal treatment to them….”22

45. The protections under the Human Rights Act 1998 extend beyond UK borders and apply

to any person whose rights under the ECHR may have been infringed by the UK

government.

46. The consultation document suggests (para. 3.54 and Annex K at para 5.3.3) that under

the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) exceptional

funding could be available to a person who did not meet the residence test “where the

failure to provide legal aid would breach the applicant’s rights under the ECHR or EU

law”. It is unclear whether this would be possible under LASPO as section 10 appears to

permit exceptional funding for cases outside the scope of civil legal aid but not to

applicants who are ineligible, which would be the situation of anyone who failed to meet

the residence test. More importantly, however, it is unclear why the MoJ wishes to

introduce a barrier – the residence test – for access to legal aid which, when ECHR or EU

law applies, would need to be lifted, involving a second barrier – the statutory test for

exceptional funding -- in order to provide legal aid where it should never have been

denied solely on grounds of residence.

47. While the stated aim of this proposal is to limit legal aid to “those who have a strong

connection to the UK”, it would enable civil legal aid to be granted to people who have

lived their entire lives in Bermuda, Gibraltar, the Cayman Islands, the Pitcairn Islands and

other quite remote British Overseas Territories, whose personal connection to the UK

may not be particularly strong. Conversely, the residence test would exclude persons

who are likely to have a strong connection with the UK, for example:-

212000/43/EC, 2000/78/EC, 2004/113/EC, 2006/54/EC

22Art, 7, Directive 2000/43/EC; the same or similar requirements are in Art. 9, Directive 2000/78/EC,

Art. 8, Directive 2004/113/EC and Art. 17, Directive 2006/54/EC


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a. people in Britain who have lived most of their lives in Britain but were not aware of

the need to apply for British citizenship after the Commonwealth country in which

they were born gained independence;

b. non-UK nationals with British spouses or British children;

c. migrants who have entered lawfully but have not been resident for 12 months;

d. people granted refugee status less than 12 months previously;

e. Many people whom the residence test would exclude specifically need legal aid in

order to resolve issues relating to the lawfulness of their presence in the UK and/or

their right to remain, for example

f. people who have been trafficked and are here through no choice of their own;

g. people facing removal or deportation whose challenges are based on right to private

and family life;

h. migrants who, through no fault of their own have entered illegally to the UK;

i. migrants who have escaped their traffickers and who have meanwhile become

overstayers;

j. migrants whose immigration status cannot be determined, because their traffickers

have possession of their documents;

k. migrants under the new Migrant Domestic Worker Visa who do not have a right to

change employers, and who on their escape from an abusive employer become

unlawfully present in the UK.

48. The consultation document states that the residence test would be carried out by the

legal aid provider who was dealing with the application for civil legal aid; the provider

would need to see evidence that the client was lawfully resident and had previously

been lawfully resident for 12 months and would need to retain copies of evidence for

audit purposes. There is no reference to the complexity of the task which is being

handed to the prospective legal aid provider who must assess both lawful presence and

residence possibly at two separate times. Nothing is stated regarding the sanction that

the LAA would apply if a legal aid provider unintentionally inaccurately reported that a

prospective client did meet the residence test; would it be greater than refusal to pay

the provider’s fees?

49. While the Home Office recognised from an early stage that the requirement on

employers under immigration legislation to check the immigration status of new

employees to avoid a fine or prosecution could give rise to direct and/or indirect race

discrimination, there is no mention of a parallel risk of race discrimination under this

proposal. A solicitor with a limited number of ‘matter starts’ may simply choose not to

take on as a prospective client any person who on initial meeting looks or sounds foreign

and therefore potentially likely to involve considerable time in unremunerated carrying

out of the lawful residence test. We are concerned that this proposal will make it

increasingly difficult for any person without UK nationality to obtain legal advice

regardless of their period of lawful residence here.


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50. Further, as certain areas of civil legal aid, for example discrimination, are now

contracted to a limited number of firms who are expected to provide advice and

assistance in most cases by telephone, it is not clear how and by whom the

unremunerated work to scrutinise passports, certificates, visas and other relevant

immigration or nationality documents is to be carried out.

51. That the proposed residence test will disproportionately disadvantage non-UK nationals

(a racial group under the EA) is so obvious the consultation document does not even

attempt to assess the extent of the disadvantage. The MoJ’s main argument is that the

current practice which enables non-UK nationals to apply for civil legal aid is “unfair to

the UK tax payer”. It relies on the standard justification stated above: reduce spending,

getting the best deal for the taxpayer and public confidence in the system. The

consultation document does not project any financial savings from operation of the

residence test. No attempt has been made to weigh the substantial disadvantage to

non-UK nationals against these aims; no consideration appears to have been given to

mitigating the wholesale denial of legal rights of non-UK nationals which is the likely

consequence of this proposal.

52. There is no mention of the MoJ’s obligations under the EA to have due regard to the

need to advance equality of opportunity in relation to access to justice between non-UK

nationals and UK nationals or to the need to foster good relations between persons who

share a protected characteristic and others. The DLA is concerned that the decision to

exclude from civil legal aid any person who cannot meet the proposed residence test

may have been prompted, at least in part, by the present government’s recognition of

latent xenophobia amongst some tax payers; however, to meet its equality duty, we

would expect the MoJ to consider how within its administration of the legal aid system it

could take appropriate steps to tackle prejudice and promote understanding, instead of

accepting and accommodating what it perceives as negative attitudes towards foreign

nationals.

53. In summary, we agree with the DLA that that the proposed residence test will be

unworkable as well as unjustifiable. It will create unnecessary unpaid work for legal aid

providers which could give rise to separate litigation; it will need to be disapplied where

EHRC or EU law requires; it potentially creates incentives for direct race discrimination

by providers as well as colluding with perceived public prejudices rather than acting

positively to promote good relations. Given the overwhelming weight of negative

impacts and no obvious benefits, we agree with the DLA strong recommendation that

the residence test should not be taken forward.


14

Q.5 Do you agree with the proposal that providers should only be paid for work carried

out on an application for judicial review, including a request for reconsideration of

the application at a hearing, the renewal hearing, or an onward permission appeal

to the Court of Appeal, if permission is granted by the Court (but that reasonable

disbursements should be payable in any event)? No

54. We strongly disagree with this proposal, and fully support the submissions to the

consultation provided by the Equality and Diversity Forum (EDF) and the Discrimination

Law Association (DLA). We also believe that the proposal will weed out the strong cases

as much as the weak ones and will act as a disincentive to early settlement or resolution

of cases and will discourage solicitors from taking any judicial review cases on behalf of

individuals however strong their case is.

55. This proposal strikes directly at the rule of law. If this proposal is implemented it will

create a barrier based solely on wealth to what heretofore has been regarded as a

fundamental right of all persons in the UK, namely the right to challenge unlawful

decisions and actions by the state. In R v Ministry of Defence ex p Smith [1996] QB 517

at 556 Sir Thomas Bingham MR stated: “…the court [has] the constitutional role and duty

of ensuring that the rights of citizens are not abused by the unlawful exercise of

executive power.”

56. We agree with EDF that the remedy of Judicial Review is a vital remedy and one of the

most important ways for individual people to hold national and local public bodies to

account for acting lawfully. We note that the Ministry of Justice in its press release for

the earlier Consultation on Reforming Judicial Review acknowledged ‘the important role

that Judicial Review plays in holding Government and others to account’. The power to

judicially review public decisions is an important reserve power enabling citizens to

ensure good governance and further constraints on its use should be approached with

considerable caution.’

57. We share EDF’s concerns that if this proposal goes ahead, it will create a situation where

individuals will not be able to bring cases challenging the decisions of local authorities or

central government because they will not be able to find lawyers willing to take the risk

of not getting paid for this work. This will have the result that lawyers will stop doing this

type of work and people facing injustice because of public law failings by public bodies

will find it increasingly difficult to find anyone to advise them. Like EDF we urge the MoJ

not to proceed with this proposal.

58. The MoJ in 2011 in the consultation document, “Proposals for the reform of legal aid in

England and Wales” stated: “4.16 In our view, proceedings where the litigant is seeking

to hold the state to account by judicial review are important, because these cases are the

means by which individual citizens can seek to check the exercise of executive power by


15

appeal to the judiciary. These proceedings therefore represent a crucial way of ensuring

that state power is exercised responsibly.”

59. Regretfully, it would appear that two years later the MoJ no longer see judicial review

proceedings in the same light. Under this proposal, lawyers committed to challenging

abuse of state power and to securing justice for their clients will face the difficult, if not

impossible, choice of undertaking work which may not be paid thereby putting the

viability of their firm at risk, or, in effect, acting for the state in denying such rights to

clients without private means.

60. We agree with the DLA that, for many years judicial review has been the principal means

by which unlawful decisions or actions by public authorities that directly affect the lives

of individuals and groups are challenged, including decisions or actions relating to

individual’s housing, health, personal liberty, family life, rights to remain in the UK etc.

Judicial review is forward looking, applicants are asking the court to put things right for

the future; permission to apply for judicial review will not be granted if the problem has

already been resolved.

61. In recent years, judicial review become a key perhaps even the central means by which

individuals and groups can challenge decisions or actions by public authorities which are

in breach of statutory equality duties. Initially these were duties under the Race

Relations Act 1976, the Disability Discrimination Act 1995 and the Sex Discrimination Act

1975 as amended; now applications for judicial review are brought for breach of the

equality duty under s.149 EA 2010, which may be in relation to one or more of eight

protected characteristics.

62. Judicial review has been used successfully under equality legislation to challenge

decisions of government ministers in relation to compensatory awards to former

Japanese prisoners of war23, restraint procedures for children in custody24, scrapping of

the school building programme25, restricting opportunities for non-EEA doctors26,

increasing tuition fees27; and decisions of local authorities regarding reductions in

services to disabled people28, funding of voluntary sector organisations serving

particular communities29, reduced provision of library services30, approval of proposed

23R (Elias) v Secretary of State for Defence [2005] EWHC 1435 (Admin)

24R (C a minor by his litigation friend MS) v Secretary of State for Justice [2008] EWHC 171 (Admin)

25R( Luton Borough Council & Nottingham City Council & Ors) v Secretary of State for Education

2011] EWHC 217 Admin26

R (Bapio & Anor) v Secretary of State for the Home Department & Anor [2007] EWCA Civ 113927

Hurley v Secretary of State for Business, Innovation and Skills [2012] EWHC 201 (Admin)28

R (Chavda and others) v London Borough of Harrow [2007] EWHC 3064 (Admin)29

R(Kaur and Shah) v London Borough of Ealing [2008] EWHC 2062 Admin; R(Rahman) vBirmingham City Council [2011] EWHC 944 Admin and others30

R (Williams) v Surrey CC [2012] EWHC 867 (QB)


16

redevelopment which would adversely affect different minority communities31,

decisions by schools involving discriminatory school admission criteria32 or uniform

rules33.

63. In parallel with their risk of adverse treatment by decisions and actions of public

authorities, people who share protected characteristics of race or disability, or who are

children, women or older people, are also more likely to be dependent on legal aid to

challenge unlawful decisions or acts by public authorities.

64. As reported cases illustrate, the courts examine in detail the way a public authority has

made the decision or taken the action which is at issue. The court looks for evidence

that the authority has asked itself the right questions, has considered the duty

objectively, with rigour and an open mind, in advance and as part of its decision-making

process. Often the court considers both the application for permission and the

substantive application at the same time, since the test of the merits of some cases can

be the same as the test which would determine whether the applicants’ case should

succeed. Of course, not all applications succeed.

65. The significant factor which the MoJ in this consultation document seriously under-

values, is the large number of cases in which the matter is resolved in the client’s favour

without the need for a full hearing often during the period between submission of a

permission application and its consideration by the High Court. One DLA member who

frequently acts for applicants in equality duty cases has indicated that for every judicial

review equality duty case that goes to full hearing, approximately four are resolved in

the client’s favour without a full hearing. This includes cases resolved as a result of pre-

action correspondence as well as cases resolved pending permission decision and

pending a full hearing.

66. We agree with the DLA that it must be in the interest of all parties, including the legal

aid fund, if such cases can be resolved at the earliest stage, that is, as a result of pre-

action correspondence. However the proposed non-payment of provider’s costs in the

application for permission may lead public authorities to feel under far less pressure to

agree to make a fresh, lawful, decision or to review the equality impact of a policy or

practice, delaying resolution of even the most obviously meritorious claims.

67. We share the DLA’s concerns that under this proposal no payment will be made to a

provider if an application for permission is made but not granted, even if the provider

has succeeded in securing substantial benefit for the client, for example that the

31R (Harris) v London Borough of Haringey 2010 EWCA Civ 703

32R(E) v Governing Body of JFS [2008] EWHC 1535 (Admin)

33R(S.A. Watkins-Singh (a child acting by S.K Singh, her Mother and Litigation Friend)) v Governing

Body of Aberdare Girls’ High School and Anor. [2008] EWHC 1865 (Admin)


17

authority has reconsidered its decision which had been made without full consideration

of equality impacts. We find the MoJ’s position difficult to understand if our

understanding of the purpose of legal aid -- to enable people of limited means to secure

appropriate legal remedy – is correct. We cannot find the logic in treating as

unsuccessful and therefore excluding payment to the provider when a successful

outcome has been achieved without the need to incur far greater costs in a full judicial

review hearing.

68. As race equality organisations, concerned to see effective implementation of equality

law, we regard this proposal as particularly worrying. With regard to the equality impact

on clients of this proposal, the MoJ concludes that the “likely equality impacts remain

unquantifiable” putting the burden on providers and “the extent to which the transfer of

financial risk for the application for the permission stage of a judicial review reduces

availability of representation for (1) cases which the court does not allow to proceed;

and (ii) judicial review case more generally.”

69. We refer to, and support, the submission by the Public Law Project which corrects the

statistics relied upon by the MoJ in support of this proposal. We also refer to and

support the submission by ILPA which explains in detail why a comparison of this

proposal with non-payment for work in an application to the Upper Tribunal is seriously

flawed, there being significant differences in the stage of the case, the time limits and

the contents of the application.

70. We agree with the DLA that a proper assessment of the equality impact of reducing the

availability of representation for judicial review in equality duty cases as well as cases of

homelessness, eviction of Gypsies and Travellers, deportation and treatment of

prisoners should have alerted the MoJ to the real risk of disproportionate adverse

impact on persons with the protected characteristics of race and disability.

Q.6 Do you agree with the proposal that legal aid should be removed for all cases assessed

as having ‘borderline’ prospects of success? No

71. Currently legal aid can be granted for cases assessed as having ‘borderline’ prospects of

success in only certain limited types of cases, prescribed in regulations34 summarised in

para. 3.85. The types of ‘borderline’ cases identified as acceptable for grant of legal aid

provided the LAA is satisfied that certain specified criteria are met are exactly the types

of cases for which we consider it indisputable that legal aid should be provided – cases

in which the client is at risk of losing their home, a woman is at risk of domestic violence,

a child’s welfare is at risk or cases against the state which are of significant wider public

interest or of overwhelming importance to the individual or where the substance of the

case relates to a breach of convention rights.

34Civil Legal Aid (Merits Criteria) Regulations 2013,


18

72. The MoJ recognises (para 3.87) the priority which ‘borderline’ cases deserve since they

often involve holding the state to account. We refer to our comments above regarding

the fundamental importance in a democracy for individuals and groups, regardless of

personal means, to be able to challenge unlawful acts by the state. In our view it is

precisely because of the legal, social and, often, political importance of such cases that

‘borderline’ cases deserve public funding. As the state moves into more and more areas

affecting the lives of individuals and groups where UK or EU or ECHR law may apply,

there may not be clear statutory authority or well established legal precedents on which

a case can directly rely.

73. We understand that the experience of DLA members, and other lawyers, involved in

applications for judicial review for breach of the equality duty is that the law itself is still

evolving and areas of uncertainty remain. The DLA and other lawyers suggest that

different judges of the High Court adopt different approaches to cases which, on their

face, appear to involve the same or similar legal questions. If the LAA would agree that

the substance of a case relates to breach of a convention right, the approach of the

ECtHR on some issues cannot be predicted with a high degree of certainty. Increasingly,

but not necessarily consistently, the ECtHR is clarifying when the state has obligations

proactively to prevent breaches of convention rights including Art. 14. For example in

the recent case of Eremia and Others v The Republic of Moldova, 35 the ECtHR for the

first time held that failure by the state to take decisive action to fulfil its positive

obligations in a domestic violence case breached the right to be protected from

inhuman treatment (Article 3) the right to be protected from interference with private

life and home (Article 8) and the prohibition of discrimination (Article 14).

74. In our view, it would be a seriously regressive step to exclude cases where a solicitor,

acting professionally, at an initial stage assesses merits of a public law claim as

‘borderline’. We do not consider the opportunity to appeal a refusal of legal aid by the

LAA based on its assessment as a satisfactory safeguard.

75. In Annex K, the MoJ acknowledges that this proposal will have an adverse impact on

clients in certain cases, “in particular housing, family, immigration, claims against public

authorities and public law where the case has a less than 50% chance of success.” (para

5.5.1) In fact this understates the likely impact since what are to be excluded from

funding are cases which at the outset the provider cannot confirm that the chance of

success is at least 50%. The MoJ further acknowledges the limitations of their data. We

submit that it will not only be disabled people and people aged 25 -64, as suggested by

the MoJ who will be disproportionately disadvantaged. Having regard to the types of

potentially ‘borderline’ cases that will not be funded we would expect that this proposal

35Application no. 3564/11, 28 May 2013.


19

will disadvantage people with protected characteristics of race (including ethnic or

national origins and nationality), sex (women), age (children), religion or belief.

76. Once again the MoJ appears to be satisfied that any disproportionate adverse impact

can be justified as a proportionate means of achieving its standard aims. (para 5.5.3)

This proposal will generate very little in the way of savings; legal aid lawyers disagree

that even the projected £1m savings will not be achieved. The MoJ stresses not their

standard aims but a self-serving principle that public funding should be directed to cases

with at least a 50% or more prospect of success (which, is already true for the vast

proportion of public funding - what is at issue is funding of approximately 100 cases per

year). The MoJ then states, without reference to any evidence, that “our legal aid

system is not efficient and credible as long as it pays for cases which, from the outset,

are considered … to have borderline prospects of success”. The DLA takes an opposite

view; we submit that the legal aid system would lose credibility if it were to refuse to

support the types of cases which the MoJ agrees are priorities because of their

importance to wider society or to the individual or because they concern breach of the

ECHR. For all of the above reasons, the DLA urges the MoJ not to take this proposal

forward.

Q.7 Do you agree with the proposed scope of criminal legal services to be competed? No

77. We do not believe that it is in the interests of clients, the legal profession or the criminal

justice system as a whole to:

a. replace 1,600 high-street and specialist criminal defence firms with 400 large

contractors (who will not necessarily have experience of delivering legal services);

b. select said 400 large contractors on the basis of price to provide region-based

criminal legal services.

78. We are particularly concerned that by the assessment by the London Criminal Courts

Solicitors Association, the Society of Asian Lawyers, the Society of Black Lawyers, the

Association of Muslim Lawyers, the British Nigeria Law Forum and the Black Solicitors

Network that the proposals will be disastrous for BME individuals and communities. We

have noted some of their key concerns.

a. The reforms will reduce the number of criminal law firms in the United Kingdom

from 1,600 to 400 and are engineered to ensure that small firms will be most

affected. It is estimated that, as a result, 90 per cent of small BME firms serving local

communities will go out of business.

b. In their place we will see larger, centralised, non-local firms spring up. They will not

reflect the diversity of the existing firms or the communities that they support. For a


20

city which is meant to celebrate ethnic diversity and inclusion, this is a pitiful state of

affairs.

c. Choice and quality of legal aid defence - the defence you get if the state accuses you

of a crime and for which, let’s remember, you are innocent until proven guilty - will

be driven from the market. Only 83 criminal defence firms would operate in the

whole of London if the reforms come into force. Anyone arrested thereafter would

have no choice of who represents them at the police station unless they can afford

private defence. A solicitors firm will be allocated and woe betide a defendant who

wants a different solicitor who he/she believes better understands their case. Once

allocated a legal aid solicitor, that defendant will be saddled with the same firm

throughout their case.

d. There is no incentive for that firm to provide a quality service as work is guaranteed.

All this is in the interests of the market, in the name of tackling austerity. What

thought of justice?

e. The Government consultation paper freely talks of a reduction in standards. It states

that lawyers have been offering too high a level of quality at the police station in

circumstances where they should be offering only an “adequate” service.

f. The idea that the Government endorses a reduction in standards is chilling. These

reforms will inevitably lead to miscarriages of justice on a par with the cases of the

Birmingham Six and Guildford Four in the 1970s.

g. As Lord Woolf has publicly stated, the reforms will lead to a “factory of mass

produced justice” and “miscarriages of justice”. And by the Government’s own

analysis, the shake-up will disproportionately affect BME defendants because they

are disproportionately represented in the criminal justice system. The Government

document also acknowledges that BME firms will be worst hit. And the justification?

It’s a "proportionate" means of achieving a legitimate aim (ie, saving money).

79. We believe that the changes will mean that there will be even fewer BME solicitors who

rise to the higher echelons of the judiciary (currently there are no BME judges sitting in

the Supreme Court or Court of Appeal and there is only one BME judge in the High

Court). We argue that we should not take such retrograde steps?

80. We believe that that these proposals, if implemented, would tear apart the fabric of the

criminal defence system. As increasingly, these defendants will not see themselves

reflected in the solicitors who represent them or in the barristers who defend them, this

will ensure that BME defendants are further disenfranchised and unfairly represented in

the criminal justice system.

81. In our view, the MoJ’s desired achievement of economies of scale by means of price

competition is not appropriate for the provision of legal advice and representation in

criminal matters. Unlike sausages, each criminal case has unique features which the


21

current number and diversity of criminal legal aid providers is reasonably able to

accommodate, but which, we strongly doubt, will be possible under the proposed total

restructuring of criminal legal aid.

82. For criminal clients, the most significant adverse impact will be their lack of choice of

lawyer to represent them, which we discuss below. However choice will be drastically

reduced in any event by the proposed 75% reduction in the number of criminal legal aid

providers. Access will be more difficult; for example, it is proposed that many large

counties with poor public transport systems which currently have some 50 criminal legal

aid providers are to have only four providers; for the whole of the West Midlands there

will be only 20. Specialist firms, which may have developed a niche practices, for

example defending children and young people, defending Gypsies and Travellers or

acting for prisoners, or long-established firms who know well the communities,

institutions and social problems of their local areas, will generally be forced to give way

to successful large, often inexperienced generalist legal aid contractors.

83. We are further concerned that the proposed ‘standard fee’ structure is likely to reduce

the quality of service to individual clients. The proposal that the lawyer will be paid the

same fee for a guilty plea as for a three-day trial is likely to create a financial incentive

for the lawyer to encourage the client to plead guilty which inevitably will affect the

client’s confidence in their representative.

84. Alongside the large number of organisations responding negatively to this consultation,

we foresee irremediable disadvantages for all criminal clients. However the loss is likely

to be all the greater for groups that are already disadvantaged under the criminal justice

system, including children and young people, Gypsies and Travellers, young Black men,

people with mental disabilities, recent migrants; we submit that losing access to

specialist solicitors who understand their particular circumstances and different needs

and in whose advice they can therefore have confidence is a significant negative impact

of the proposed reform of criminal legal aid, which the MoJ appears not to have taken

into account.

85. In its Equalities Impact, Annex K paragraphs 5.63 – 5.65 the MoJ considers the impact on

Black, Asian and other minority ethnic (BAME) firms, which are currently over-

represented amongst criminal legal aid providers compared to the BAME representation

in the general population, although unevenly across England and Wales. The MoJ notes

that BAME firm are more likely to be small and therefore less likely to be able to “grow

their business to the scale required to compete for the new contracts”; in simpler terms

their business as a criminal legal aid firm will come to an end. Rather than considering

what measures would assist the survival and growth of BAME firms, which are often the

providers of choice by ethnic minority clients, the MoJ appears content to ‘justify’ the

significantly reduced prospects of BAME firms under the proposed price competition by


22

greater efficiencies in the provider market and value for money. We regard as

unrealistic the suggestion that the adverse impact on BME firms will be mitigated by a

proposed process by which they can form consortia or use agents in order to participate

in the competitive tendering. This did not happen when other changes which promoted

mergers and increased contracting were introduced and BAME organisations lost out.

The reality as we see it is that this proposal will result in a significant decline in viable

BME criminal legal aid practices.

Q.17 Do you agree with the proposal under the competitive model that clients would

generally have no choice in the representative allocated to them at the outset? No

86. We strongly disagree with this proposal. The fact that the basic right of defendants to

choose their representative, however their legal representation is funded, is to be

removed in order to make the price competitive model work, is, in our view, one of the

strongest arguments against that model.

87. Under this proposal, criminal legal aid clients will have no right to choose a lawyer to

represent them, regardless of having been represented in the past by a lawyer with

whom they developed a relationship of confidence and trust. Under the proposed new

structure, every time a person needs advice they will be allocated mechanically by the

LAA to one of the new providers. With the LAA now an integral part of the MoJ what this

means is that in criminal cases, it will be the state, not the court or an independent

quango, that will assign the lawyer to act on their behalf.

88. That particular groups may be disproportionately disadvantaged is acknowledged,

although with limited data the MoJ refers only to men and BME people because they

have data showing these groups over-represented among criminal legal aid clients. The

denial of choice of lawyer is likely to affect directly the relationship between the client

and the lawyer; without a high degree of trust and confidence the client may be

reluctant to disclose relevant information which may be essential to effective

preparation and presentation of their case. This may lead to increased miscarriages of

justice.

89. We are concerned that this proposal will make it more difficult for defendants,

especially BME people and Gypsies or Travellers, to develop and maintain trust and

confidence in the lawyer assigned to them. We suggest this is also likely to be true for

defendants who are children or young people, who are Muslim, gay, lesbian or

transsexual, for people of non-UK nationality, people with mental health and learning

disabilities and people with visual or hearing impairments. Like the DLA, we believe the

MoJ has significantly under-estimated the adverse equality impact of the denial of

choice for all legal aid clients. We do not believe that the three very limited “exceptional

circumstances” outlined in para. 4.81 in which change of provider might be permitted by


23

the LAA36 will operate as effective mitigation of the disadvantage which the denial of

choice will create: it is only the second which could be requested by the client and only

when there is “a breakdown in the relationship between the client and the provider…

such that effective representation can no longer be provided”; we do not expect the LAA

to agree to such a request without evidence of such breakdown which clients who

desperately want a change because they lack confidence in their solicitor or counsel will

find very difficult to provide. There is nothing in the description of the new scheme

which appears to give weight to providing each client with the most appropriate service.

90. Further, experience suggests, that making it a contractual requirement for each provider

“to have a written equality and diversity policy that meets certain conditions37, will not

operate effective mitigate for the adverse impact on clients with particular protected

characteristics. Sadly, far too many claims of discrimination, including discrimination by

failure to make reasonable adjustments, succeed against employers and service

providers who have well-meaning written equality and diversity policies. The proposed

mechanical system of allocation will remove providers’ ability to influence the suitability

of representatives for individual clients which is the crucial point at which the “diverse

needs” of legal aid clients – which clients themselves must be best able to define - need

to be met.

91. Where providers do make efforts to represent properly their clients with particular

protected characteristics, recognising their different needs, this may involve the

representative spending more time than they would with other clients to explain the

stages of the criminal justice system and the implications for the client and to take full

and careful instructions. So far as we understand the fixed fees that will apply, it will not

be in providers’ financial interest to spend more time with clients who have different

needs.

Q.18 Which of the following police station case allocation methods should feature in the

competition model?

92. We do not agree that any of the suggested options should be used to allocate

representatives to advise anyone who has been arrested and in need of legal advice

while detained at a police station.

93. The quality of initial legal advice at a police station may determine the outcome of a

criminal case. All of the suggested options involve mechanistic methods (by client’s day

of the month of birth or client’s surname initial or case 1 to provider A, case 2 to

36Currently change of legal aid provider may be agreed by the relevant court (Regulation 14 of the

Criminal Legal Aid (Determinations by a Court and Choice of Representative) Regulations 201337

Namely as a minimum, it “must include how the provider would meet the diverse needs of theirclients (including making reasonable adjustments for clients with disabilities)”


24

provider B, or all cases to the duty provider) for allocation of representatives which

totally ignore any specific needs of the individuals to be advised. This would be less

worrying if, following advice at a police station the client could then choose the lawyer

to represent them at later stages of their case, which under the proposed scheme they

will not be permitted to do. Therefore, for all of the reasons we discuss above in answer

to Question 17, we believe all of the proposed options are likely to reduce the likelihood

of people receiving the quality of legal advice they need both at this critical first stage

and throughout further stages.

94. We are particularly mindful that BME young men and other people from BME

communities are disproportionately represented in the stop and search figures, in

arrests and other detentions. Mechanistic allocation of representatives without the

need to give any consideration to the different needs of individuals who require legal

advice may well operate to the particular disadvantage of clients who are children or

young persons, from particular racial or religious groups, or who have mental health or

learning disabilities.

Q.31 Do you agree with the proposal that fees for self-employed barristers appearing in

civil (non-family proceedings in the country court and High Court should be harmonised

with those for other advocates appearing in those courts? No

Q.33 Do you agree with the proposal that fees paid to experts in civil and criminal cases

should be reduced by 20%? No

95. We are responding to these two questions which we regard as raising similar issues: a)

namely reduced access to specialist barristers and experts; and b) inequality of arms

between the legally aided client and their public or private sector litigation opponent.

96. Currently the field of discrimination law benefits from a gradually growing number of

barristers who have developed specialist knowledge, incorporating UK statute and

common law together with European and international law and decisions of the CJEU

and ECtHR. Both claimants and respondents/defendants benefit from skilled advice at

the initial stage regarding the merits or otherwise of a potential discrimination case and,

if a case proceeds, in the preparation and conduct of the case. Courts and tribunals

benefit since the parties will focus on relevant issues saving time and demands on

judges and court staff. There is real concern that the reduction in independent

barristers’ fees proposed as “harmonisation” will result in fewer barristers who

specialise in particular areas, including discrimination, being prepared to take on legal

aid work.

97. The government and other public authorities as well as private sector employers and

service providers will continue to be able to pay market rates for the services of


25

specialist counsel, gradually creating inequality of arms between legally aided litigants

and their non-legally aided opponents.

98. The arguments rejecting the proposed blanket reduction of 20% for all experts in legally

aided civil or criminal cases are virtually the same. For certain types of discrimination

cases the availability of high quality experts is essential. In many claims of disability

discrimination the critical issue before the court will be whether the claimant comes

within the statutory definition of disability in the Equality Act 2010, and both claimant

and defendant are likely to rely on expert evidence.

99. Experts operate in an open market and may choose to be engaged for a litigation party.

We are concerned that, given a choice, many experts will choose to be engaged by

lawyers acting on behalf of the government or another public authority or a private

sector respondent/defendant where they are able to negotiate a market rate rather

than be paid the reduced fixed fee available when the applicant/claimant is legally

aided. This proposal is therefore likely to create both a reduction in access to experts,

which will directly affect disabled litigants in discrimination and other cases, and a

consequent inequality of arms.

100. Like the DLA, we believe that the concerns and issues documented in this response

and others will assist the MoJ in assessing the merits or otherwise of the proposals

within the consultation document. If any of our comments require clarification, we

would be pleased to provide this.

Q.34 Do you agree that we have correctly identified the range of impacts under the

proposals set out in this consultation paper? No

Q35. Do you agree that we have correctly identified the extent of impacts under these

proposals? No

Q36. Are there forms of mitigation in relation to impacts that we have not considered?

Yes

101. We consider that the MoJ’s equality or equalities impact assessment and proposed

steps to comply with the statutory requirements set out in the EA 2010 and in particular

in section 149, are inadequate. Our analysis, and detailed response in this regard, is

provided in paragraphs 5-16 of this submission16. We reiterate, that we urge the MoJ

and the Government to think again before introducing rash, cataclysmic and irreversible

reforms, which will have a devastating effect on the rule of law in this country. They are

not just an assault on justice but an attack on our proud multicultural heritage.

Documents

Final submission Equanomics and partners 4-6-13 fin · 2013-10-06 · Final submission from Equanomics-UK and partners: 4/6/13 2 Race equality and equality Impact 4. As race equality