In a long-awaited report examining access to justice and legal aid, the Bach Commission led by the former Justice Minister and Labour Peer Lord Bach has called for major reform of the legal aid system. It is published in the wake of shocking evidence that the current system is resulting in injustices and failures that pose a threat to the rule of law.
To those of us reliant on legal aid to fund our cases the Commission’s findings come as no surprise. But the recognition of their constitutional significance and the urgent need for radical reform comes as a welcome and long awaited clarion call following the devastating impact of The Legal Aid Sentencing and Punishment of Offenders Act 2012 (LASPO) which has resulted in a legal aid system that is barely fit for purpose.
In 2010, the coalition government introduced a range of policies aimed at reducing public spending. The Ministry of Justice (MoJ) was hit particularly hard with expenditure being reduced by 34% between 2010 and 16. LASPO was introduced to implement these cuts and did so by, among other things, removing whole areas of law from the scope of legal aid. This action has had a devastating impact on access to justice by denying legal advice and representation to those with meritorious and potentially life-changing cases and, by putting the courts under a significant strain as the number of litigants in person trying to navigate the legal system alone has soared.
It seems that LASPO has had the desired effect of reducing the legal aid bill. In fact, expenditure on legal aid has actually reduced by more than twice what the government forecast. But at what cost to society and the rule of law? Not to mention the courts and other government departments and agencies who now shoulder the burden of dealing with an increased number of litigants in person and people in crisis whose issues might have been far more quickly and easily resolved with access to legal help at the outset. As Lord Bach points out “The costs are not only felt in the justice system; the effects of avoidable evictions of families, homelessness and so on are also felt by individuals, local councils and the NHS.”
In his 2016 annual report to parliament, the Lord Chief Justice described a court system in crisis as he implored parliament to recognise the importance of the judicial system in maintaining a just and fair society: “Cuts to legal aid have resulted in the courts being flooded with people representing themselves without legal advice or representation, including those in emotionally difficult circumstances such as losing access to their children, facing the loss of their home or fighting deportation to a country where they might be persecuted.” This is not the image conjured by the repeated claims that our legal system is the envy of the world. But this is the reality for many of those who desperately need legal representation, whose lives might depend on it, and for whom it is largely unaffordable under the current regime.
The Bach Commission spent its first year hearing evidence from 100 individuals and organisations and reviewing the current legal aid system and its impact on access to justice. In November 2016 they published their findings in an interim report, the main thrust of which was that individuals were being denied access to justice and that LASPO has created “a crisis in the justice system”. The headlines included the following:
- That there has been a huge decrease in the number of people who are able to access legal aid and that LASPO has accelerated this crisis by removing whole areas of law from scope. There has been a 30% fall in the total number of grants of legal aid made between 2009-10 and 2013-14.
- The exceptional case funding (ECF) scheme, designed to mitigate the effects of LASPO cuts to legal aid, has failed. The government expected 847 children and 4,888 young adults to be granted ECF each year. In fact, only eight children and 28 young adults were granted legal aid under the scheme between October 2013 and June 2015.
- Courts and legal advice services are closing down at an alarming rate. The number of not-for-profit legal advice centres fell from around 3,226 in 2005 to 1,462 in 2015 and the services that do exist are not effectively integrated.
- High Court and tribunal fees are preventing people from pursuing legal claims. After the introduction of employment tribunal fees between October 2013 and June 2014 the number of cases fell by 67%. (Note: While employment tribunals can no longer charge fees, following a recent landmark Supreme Court judgment ruling these unlawful, fees in other courts – which have increased hugely – remain unchanged).
- Bureaucracy in the legal aid agency is costly and time-consuming. While the legal aid budget overall has been cut by 25%, the administration budget has increased in the last year by 2.1 million.
- Only the Department for Work and Pensions has been cut harder than the MoJ. MoJ spending was cut by 34% between 2010 and 2016.
Having concluded its work, the Commission now calls for much needed short-term and longer-term changes to improve access to justice.
The primary recommendation is for a new Right to Justice Act which will aim to put our right to justice on an equal footing with our right to healthcare, education or housing. The Act will establish an individual right to reasonable legal assistance at an affordable cost and the creation of a new independent Justice Commission to advise on, monitor and enforce this right to justice.
The Commission hopes that a single, statute-based right to justice will bring much needed clarity to the concept of the right to justice, give it the constitutional significance it deserves, and make it much harder for the Lord Chancellor to propose new legislation that overrides our human rights. “The legal aid cuts of recent years” he says, “would have been much harder to achieve in this political and legislative context.”
The Commission also proposes more urgent short-term policy changes relating to the provision of legal aid with the aim of significantly increasing the number of eligible households. The Commission suggests that this could be achieved by effectively ‘passporting’ all of those on means tested benefit, excluding owner-occupied housing from the capital assessment, introducing more generous disposable income and capital allowances and requiring those that do have to make contributions to only pay a percentage of any capital over those limits rather than having to contribute 100% of the savings.
The Commission recommends restoring legal aid to pre-LASPO levels for all social welfare law (including debt employment, welfare benefits, immigration and housing) for family law and for prisoners and appropriate cases. All matters concerning legal support for children should be brought back into scope, there should be a full review of which areas of immigration law should be brought back into scope, and where the state is funding one or more of the other parties in an inquest, it should also provide legal aid representation for the family of the deceased. The Commission also recommends that regulations limiting remuneration for judicial review cases should be repealed.
Lord Bach pulls no punches in his criticism of the current state of access to justice and the system that maintains this state of affairs. His proposals are bold but necessary if our justice system is to mean anything at all.
UK justice system
In the 1980s around 80% of households were eligible for civil legal aid. That figure was less than 30% in 2008 and even less now following LASPO. The fact of the matter is that unless you are very rich or very poor (and therefore eligible for legal aid), quality legal representation is simply not affordable. A justice system that is beyond the reach of most people simply cannot deliver justice in any real sense.
Access to justice should not be considered a luxury. It is a constitutional and democratic imperative that has been steadily eroded by successive governments over recent years. LASPO might have made some short-term savings for the MoJ budget, but the social, moral and economic costs in the long-term are innumerable and potentially devastating.
As Lord Bach rightly states: “Too many powerful institutions pay lip service to the concept of access to justice without having sufficient regard for what it actually means. It is, after all, fairly simple, unless everybody can get some access to the legal system at the time in their lives when they need it, trust in our institutions and the rule of law breaks down. When that happens society breaks down.”
Let us hope that the government heeds Lord Bach’s warning and finally attributes the right to justice with the constitutional significance that it so desperately needs as the potential cost to society of not doing so is too bleak to contemplate.