Legal aid curbs 'break human rights law'

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Legal Affairs Correspondent

Government plans for cash limits on legal aid risk breaking European human rights law, according to the human rights pressure group Liberty.

On the formal deadline day for responses to the Lord Chancellor's legal aid Green Paper, Liberty was one of several legal and consumer organisations which claimed some of the changes would be unworkable in their present form.

The Government has already recognised the complexity and difficulties inherent in its radical proposals by allowing the Bar Council and the Law Society extra time to draft their reactions. Sources have made it clear there will be no legislation announced in the Queen's Speech this autumn, but have not ruled out a Bill early next year.

In the Green Paper discussion document in May, the Lord Chancellor, Lord Mackay, announced plans for regional cash limits on both criminal and civil legal aid. At present, clients qualify for legal aid if they have a reasonable case, and a sufficiently low income and capital. Spending has been controlled in recent years only by making the means test more severe, so that only the very poor now qualify. The annual cost to the taxpayer is pounds 1.3bn.

Legal aid - currently available through any solicitor - would be restricted to fundholding solicitors, on the model of general practitioners in the National Health Service.

For its response, Liberty asked two barristers, Michael Beloff QC and Murray Hunt, to study the proposals. They said in a long written opinion that a cap on criminal legal aid could lead to breaches of both the European convention on human rights and the United Nations international covenant on civil and political rights.

Both these documents include an obligation for free legal assistance to be provided if a defendant cannot afford it, and the interests of justice require it.

Mr Beloff said: "The introduction of a cash-limited system of provision marks a clear departure from an entitlement-based system in which legal aid is available as of right, subject only to financial eligibility and the legal merits of the individual case.

"At some point someone will be denied legal aid to defend him or herself against a charge for no other reason than that the public purse is empty."

The same threat of funding being exhausted also hung over civil legal aid, the lawyers said. They warned of the difficulties associated with trying to predict demand for legal aid and how much money would be needed to meet that demand.

In its submissions to the Lord Chancellor yesterday the National Consumer Council recognised the need to reform legal aid, but advised greater caution, saying: "Moving from entitlement to discretionary granting of legal aid should only be a last resort, after all other options have been explored."

The NCC's director, Ruth Evans, said: "The recommendations are based on inadequate information about the needs of users of legal services and levels of waste and inefficiency in the civil justice system."

The Legal Action Group, a pressure group concerned with access to justice for the disadvantaged, warned that other countries which had introduced cash limits had run into difficulties.

Roger Smith, the group's director, said: "The Green Paper could lead to major improvement of the legal services or it could prove to be a total disaster.

"Success depends on the Government's willingness to heed the practical difficulties in the face of too gung ho an approach."