Authors:Douglas Johnson
Last updated:2023-09-18
“What happens when the current contracts for discrimination and education advice end in August 2018?”
Marc Bloomfield
Even when legal aid for unlawful discrimination cases was relatively widely available, few were tackled, except in employment. Cases against discriminating shops were rare; indeed, they were seen as such an anomaly that some cases against private businesses were taken under public law contracts. Discrimination in schools was muddled up in the confusing sprawl of special educational needs and SENDIST. The Disability Discrimination Act 1995 briefly intrigued housing lawyers with North Devon Homes Ltd v Brazier [2003] EWHC 574 (QB) until it all came to a shuddering halt with Lewisham LBC v Malcolm [2008] UKHL 43, in which the Lords gave five dissenting judgments that took primary legislation to redress.
Eventually, discrimination law came to be recognised as a (sub-)category of its own and, in 2010, a number of ‘low-volume’ legal aid contracts were let in the consumer category. After the Government Equalities Office’s determination to axe this work and curtail the Equality and Human Rights Commission’s (EHRC’s) activity, came the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) and the ill-considered telephone gateway. As a means of tackling discrimination, it would be hard to think of anything less satisfactory.
Predictably, the number of people getting the advice and assistance they needed plummeted. The three firms that were ‘successful’ with contracts for discrimination work received far fewer referrals from the gateway than they had been led to expect. As the Law Centres Network (LCN) reported in evidence to the Joint Committee on Human Rights on 21 February 2018, last year individuals received legal aid in only 1,195 discrimination cases across the entire country. It suggested that ‘rather than a gateway, the telephone channel serves as a gatekeeper, restricting access to the service by the way that it is delivered’ (page 4, para 5). And now the government has simply cancelled the latest tender round for discrimination and education civil legal advice after ‘insufficient compliant tenders’.
If this is ‘market failure’, it is failure engineered by government. Rather than the Ministry of Justice (MoJ) simply admitting it doesn’t want to fund legal aid, this allows it to suggest that providers are merely choosing not to do this work. But what happens when the current contracts for discrimination and education end in August 2018? The government must provide access to legal aid for discrimination cases. LASPO Sch 1 sets out an exhaustive list of the categories in which parliament has decided legal aid should be available. The government cannot go against parliament’s will by not allowing any legal aid by default; it will have to come up with a solution.
Presumably, extending the existing three contracts is a non-starter as there have been no bids to work on the scheme. Another possibility is to offer a new round of low-volume contracts to legal aid firms around the country – an opportunity to allow the face-toface advice that is needed.
Maybe, though, it’s time for the MoJ to abandon this failed policy and take a new approach. The historically low numbers of cases and the overbearing administration costs of case-by-case funding provide a good argument for direct grant funding of Law Centres and other organisations so they can employ salaried caseworkers for discrimination cases, with budgets for funding disbursements. As the MoJ has failed to get firms to tender, maybe it could hand over the funding to the EHRC, which is at long last again trying to work more strategically with front-line organisations. This should be coupled with the ability to apply for legal aid certificates for cases that merit them.
A cost-benefit analysis of discrimination cases would indicate that bringing these cases benefits the wider community, not just the individual. But that might suggest the government actually wanted to do something about the impact of unlawful discrimination on society; many will need to be convinced of its commitment.