By reducing its own accountability, the state is the only one benefitting from hugely reduced access to justice in the UK. Wikimedia Commons/Russ London. Some rights reserved.In the last two weeks, the government has confirmed it will honour its pledge to review the brutal cuts to legal aid and will delay its plans to repeal the Human Rights Act until the arrangements for leaving the European Union have been resolved. These are welcome developments, but the fight to protect human rights and access to justice is just beginning.
The government review into legal aid offers a singular and vital opportunity to persuade the government to undo some of the damage caused by LASPO.
When the coalition government passed the Legal Aid, Sentencing and Punishment
of Offenders Act (LASPO) in 2012, it promised to review the impact of the cuts
to legal aid within three to five years of implementation. The Justice
Minister, Sir Oliver Heald, recently accepted that enough time has now passed
for this review process to begin. This offers a singular and vital opportunity
to persuade the government to undo some of the damage caused by LASPO.
The news that the Human Rights Act has been granted a stay of execution pending the outcome of Brexit negotiations is, perhaps, unsurprising. Extricating the United Kingdom from the European Union will be complicated enough after over 45 years of EU and national law being intertwined by virtue of the European Communities Act 1972, without adding an extra layer of complexity by seeking to reform or revoke rights derived from the European Convention on Human Rights (ECHR).
The Conservatives campaigned on a manifesto pledging to repeal the Human Rights
Act, which enshrines ECHR rights in domestic law, and to replace it with a
British Bill of Rights in 2010 and 2015. Although we are still yet to see a
draft Bill of Rights, it is safe to infer from policy statements that what is
intended is not enhanced protection of human rights; indeed it is evident that
the Conservatives propose fewer rights for fewer people.
It is a matter of public record that the Prime Minister is no great supporter of “activist left-wing human rights lawyers” or the ECHR, which was enacted in the aftermath of the Second World War with the UK as a founding signatory. Theresa May backpedalled on her previously expressed wish to withdraw from the ECHR during the Conservative leadership election, but it has since been reported that she will campaign to leave the Convention in 2020.
Hundreds of thousands, if not millions, of people are being denied meaningful access to justice. Behind the numbers lies a human story of injustice. While the battle over the repeal of the Human Rights Act may have been postponed for now, the consequences of the cuts to legal aid made by the coalition government have been catastrophic, particularly for many of the most vulnerable in society. Through the introduction of LASPO, the government wholly or partially removed areas of social welfare law such as housing, debt, welfare benefits and family law from the scope of legal aid.
As a result, there has been an alarming reduction in the number of
social welfare law cases funded by legal aid, from 470,000 cases in 2009/10 to
just 53,000 cases in 2013/14. Hundreds of thousands, if not millions, of people
are being denied meaningful access to justice. Behind each of these numbers
lies a human story of injustice, as we know that early advice on debt, housing
or employment issues can prevent problems from spiralling out of control and
creating knock-on costs to society.
Ahead of the review of LASPO, there is already ample evidence of the devastating impact of the cuts to legal aid, as well as the false economy resulting from the removal of social welfare law advice. In November 2014, the National Audit Office found that the reforms have the potential to create additional costs to the state, but that the Ministry of Justice did not estimate the scale of these ‘hidden’ costs. The MoJ also did not know whether or not all those who are eligible for legal aid are able to access it.
In February 2015, the Public Accounts Committee report on reforms to civil legal aid was heavily critical of the government: it too observed that the MoJ “does not know whether the reduction in spending on civil legal aid is outweighed by additional costs in other parts of the public sector as a result of the reforms”, perhaps because the MoJ “gathered little evidence before implementation and did not make good use of the information that it did have”. The PAC chair, Margaret Hodge, found it “deeply disturbing that the Ministry of Justice’s changes to civil legal aid were based not on evidence but on an objective to cut costs as quickly as possible”.
Who benefits from the degradation of human rights law, obliteration of legal aid and vastly increased court fees? It’s not the man or woman on the Clapham omnibus. It’s not the hardworking families of Britain, the squeezed middle or the just-about-managing. It’s the state.
In March 2015, the Justice Select
Committee reported that the cuts limited access to justice for some of those
who need legal aid most and that the MoJ “cannot demonstrate that it has
achieved better overall value for the taxpayer because it has no estimate of
how great the knock-on costs of the rest of the system have been”.
In October 2016, Amnesty International published Cuts That Hurt, a report on the impact of legal aid cuts on access to justice. Amnesty concluded that “in human rights terms, the cuts to legal aid constitute a retrogressive measure”. In the same month, the Trades Union Congress found in its report, Justice Denied, that “LASPO, reforms to court services and budget cuts have had a detrimental impact on access to justice, including on those most vulnerable in our society”.
Finally, in November 2016, the Bach Commission on Access to Justice, set up by Labour, released its interim report on “the crisis in the justice system”. The Commission concluded that LASPO has “seriously damaged the functioning of the justice system, especially for those most in need”, and called for minimum standards for access to justice to be enshrined in law.
You might be thinking that all of this begs the question: cui bono? Who benefits? Who benefits from the degradation of human rights law, obliteration of legal aid and vastly increased court fees? It’s not the man or woman on the Clapham omnibus. It’s not the hardworking families of Britain, the squeezed middle or the just about managing. It’s the state.
Regrettably, it often seems that the government would prefer justice to remain open to all, as the saying goes, like the Ritz Hotel.
The state – including local authorities, the police and government departments
– becomes less accountable to its citizens when their ability to challenge the
lawfulness of its conduct is reduced. The cumulative impact of measures to
curtail access to justice and weaken human rights is to make it more difficult
to hold the state to account when it makes mistakes. Concern about this should
unite us all.
The attacks on human rights and access to justice tell you that the government does not want to be held to account. That’s understandable – life is undoubtedly easier for politicians and public bodies when their decisions are not subject to legal challenge in the courts – but accountability is crucial to good governance and the rule of law. After all, quis custodiet ipsos custodes? Who will guard the guards themselves?
We have seen what can happen when state bodies are not subjected to proper oversight and scrutiny. Open justice lets in the light and allows the public to scrutinise the workings of the law, for better or worse. However, without effective access to justice, legal rights cannot be enforced and are rendered illusory. Regrettably, it often seems that the government would prefer justice to remain open to all, as the saying goes, like the Ritz Hotel.
It is crucial that the review of the legal aid cuts is independent, objective, comprehensive and, above all, fair. The review must properly assess the wider knock-on costs to the public sector generated by cuts to legal aid. It must also consider the ongoing viability of the legal aid sector following successive fee cuts to criminal and civil legal aid. The government must be willing to address the crisis in access to justice with an open mind and, where necessary, admit mistakes.
If the Prime Minister wishes to build “a country that works not for a privileged few but for every one of us”, as she has said, then the government must commit to the protection of human rights and the promotion of equal access to justice for everyone.