From 2009/2010, there has been an 84% reduction in the number of civil cases funded by legal aid. Image: Edward Lich. Pixabay/Creative Commons CC0.
Do we have a right to justice? And, if we do, does it include the right to publicly funded legal representation to ensure that we have genuine access to justice?
Labour might be about to answer these questions in the affirmative by endorsing a new Right to Justice Act, as proposed in a report launched at the party conference in Brighton this week by an independent commission chaired by Labour peer Lord Willy Bach (the report can be downloaded here). The Bach Commission on Access to Justice was formed shortly after the election of Jeremy Corbyn as Labour leader in order to carry out a comprehensive review of legal aid, following drastic cuts made by the Coalition government.
The right to justice
In its report, The Right to Justice, the Commission recommends a Right to Justice Act to establish an enforceable right “for individuals to receive reasonable legal assistance without costs they cannot afford”. The report also calls for the creation of a Justice Commission to monitor and enforce the right to justice, and for reform of the financial eligibility and scope rules for legal aid to create a simpler, more generous system which enables many more people to access publicly funded legal help.
The radical proposals are intended to "help lift the provision of justice above the political fray”.
The Commission believes that its radical proposals would “create a new legal framework that will, over time, transform access to justice”. All of this is, according to Lord Bach, intended to “help lift the provision of justice above the political fray” and return to the consensus on access to justice that existed for decades after the modern legal aid system was introduced as part of the post-war welfare state.
A crisis in our justice system
But why is a new right to justice necessary? As the report notes, “an effective legal system in which all can access justice fairly is the cornerstone of a free society”, and without access to justice, trust in institutions and the rule of law is at risk of breaking down. There is, however, a “crisis in our justice system”.
As part of its post-financial crisis austerity agenda, the Coalition government reduced the budget of the Ministry of Justice by 34% between 2010-11 and 2015-16. The Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) was introduced to implement swingeing cuts to legal aid, removing vast areas of social welfare law – including most debt, benefits, housing, employment and immigration advice – from the scope of legal aid.
The result of this was a devastating 84% reduction in the number of civil (i.e. non-criminal) cases funded by legal aid, from 933,815 cases in 2009-10 to just 146,618 in 2016-17. Hundreds of thousands of people each year are denied access to justice as a result of the Coalition’s cuts to legal aid.
As damaging as LASPO was, it should be emphasised – as the Bach Commission itself acknowledges – that the crisis in access to justice did not begin with the Coalition government.
When the Legal Aid and Advice Act 1949 was passed, it was intended to make legal aid “more readily available for persons of small or moderate means”. However, there has been a huge decrease in the proportion of people who are financially eligible for civil legal aid: in 1980, 80% of households were eligible, but by 2008 that figure had fallen to 29%. It is now likely to be even lower – perhaps as low as 20% – given that the financial means test is not updated to account for inflation.
