Legal aid cuts could be 'incompatible with equality law', EHRC says

The Equality and Human Rights Commission has warned that the government's legal aid cuts could be 'incompatible with equality law'.

In its response to the 'Transforming Legal Aid' consultation, the EHRC said: "The commission's principal analysis is that the proposed changes could have an adverse impact on access to justice which would be incompatible with equality law.

"Our analysis also suggests that these proposals may have an adverse impact on the right to a fair trial under Article 6 of the European Convention on Human Rights, particularly for those accused of criminal offences but also for those seeking to pursue or defend civil cases.

"These impacts may be accentuated for more vulnerable or disadvantaged individuals."

The commission said that planned residence test for civil legal aid "may in practice have a substantial adverse impact on large numbers of vulnerable individuals living in the UK linked to their nationality or national origin, which potentially amounts to indirect discrimination."

The EHRC said the justification for the test was "not apparent" from the government's equality impact assessment.

"The residence test could also preclude persons living abroad from obtaining redress in the courts for fundamental human rights breaches, with potential implications for compliance with Article 6 ECHR."

The commission said the impact of the proposed changes on criminal legal aid, including price competitive tendering, might "render this model incompatible with Article 6 ECHR".

Rights to a fair trial might also be breached by the plan only to provide public funding for judicial review applications where permission was granted, the commission went on, before calling for the measure to be reconsidered.

Mark Hammond (pictured), chief executive of the commission, added: "The commission has conducted a careful legal review of the government's proposals and has highlighted that, on the basis of this analysis, they would be likely to have a disproportionate impact on the most vulnerable sections of society, including the poorest victims of crime and of official maladministration.

"The commission recognises that the need to curb public spending applies to all public services, and agrees with the government that the taxpayer is entitled to the best possible value for money. But any budget cuts that are made to the administration of justice must preserve the basic rights of fair and equal access to the courts including for those who cannot afford to pay for a lawyer."