What next for justice?
The government have finally pledged to take some action on the access to justice crisis. Now we need to hold them to their promises.
The long-awaited review of the reckless and damaging cuts to legal aid made by the Coalition government was published last month, alongside a 'legal support action plan' to set out the way ahead for access to justice proposed by the Ministry of Justice.
Of the four objectives set for the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO), the government's review found that only one was achieved: making significant savings to the cost of legal aid. LASPO has been an unqualified success in this regard, reducing the legal aid budget from £2.1bn to £1.6bn; a real-terms cut of £950m between 2011 and 2018.
Less money spent on legal aid has, of course, meant far fewer people receiving publicly-funded legal advice and representation. In social welfare law including debt, benefits, employment and housing, the number of people receiving early advice fell from 573,737 in 2012/13 to 140,091 in 2016/17. Hundreds of millions of pounds saved, hundreds of thousands of people denied access to justice.
“Reaction to the review has ranged from cautious optimism to outright criticism.”
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In terms of the other objectives of the legislation, the review was forced to conclude that there is insufficient evidence to say whether LASPO has discouraged unnecessary litigation, targeted legal aid at those who need it most or delivered overall value for money. This may not come as a surprise, given that the National Audit Office found in 2014 that the Ministry of Justice "did not think through the impact" of legal aid cuts on the justice system before they were made. So much for evidence-based policy.
Reaction to the review has ranged from cautious optimism to outright criticism. The chair of the Justice Select Committee, Conservative MP Bob Neill welcomed "a number of positive proposals" while noting that plans for further reviews and pilots "risk being seen as kicking the can down the road" instead of dealing with the real and immediate risks posed to access to justice.
While speaking at a meeting in Parliament last week, Labour's Shadow Justice Secretary, Richard Burgon, described the review as "too little, too late", and said the £8m in additional spending pledged in the action plan represents less than 1% of the amount cut from the annual legal aid budget since 2012.
At the same meeting, the Minister for Legal Aid, Lucy Frazer, insisted that the £8m referred to in the action plan – earmarked for increased funding to support unrepresented litigants and an innovation fund to "develop new ways of delivering legal support" – does not represent the total spending commitment from government's proposals.
What next for access to justice?
What that funding commitment will be is, at present, anyone's guess, but the level of further investment in access to justice is likely to be determined by a number of consultations, reviews and pilots following on from the LASPO review. The Ministry of Justice has pledged to carry out a review of financial eligibility for legal aid, pilot the expansion of legal aid for early advice in social welfare law, pilot the provision of "holistic legal support hubs", and review the fee schemes for criminal legal aid.
So it is apparent that more evidence is needed in order for the Treasury to loosen the purse-strings for legal aid. Given the Ministry of Justice's own assessment of LASPO and the earlier censure by the National Audit Office, it seems that evidence matters far more when campaigners call for investment in access to justice than when ministers want to cut legal aid.
What matters now though, is what comes next. Following the publication of the LASPO review and action plan, there are a number of opportunities to keep making the case for legal aid and pushing to influence policy.
“It is a two-tier system which works for the few, not the many.”
Review of financial eligibility
It has been estimated that as few as 20% of people are now eligible for civil legal aid, down from 80% in 1980 and 53% in 1998. Research last year for The Law Society found that the legal aid means test "is set at a level that requires many people on low incomes to make contributions to legal costs that they could not afford while maintaining a socially acceptable standard of living".
Surely we cannot have a justice system which works for everyone while the vast majority of the population are not eligible for legal aid. At the moment, it is a two-tier system which works for the few, not the many.
The promise by the Ministry of Justice to "complete a comprehensive review of the legal aid eligibility regime" by summer 2020 is therefore welcome, if long overdue. If legal aid is to live up to its founding principles – set out in the Rushcliffe Report of May 1945 – it must not only be available to those who are normally classed as poor, but should include people of "small or moderate means".
Pilot of early legal advice in social welfare law
In its legal support action plan, the Ministry of Justice commits to "bring forward proposals to pilot and evaluate the expansion of legal aid to cover early advice in a specific area of social welfare law" by autumn 2019. The erosion of access to publicly-funded early advice has been among the most detrimental effects of LASPO, widely considered to be a false economy which leads to greater costs elsewhere.
There is, however, a flaw in the government's proposal which will be obvious to those who work in social welfare law: issues with debt, benefits, employment and housing are all connected and tend to 'cluster'. Debt and housing problems do not often occur in isolation, associated as they are with a person's income from employment and/or benefits.
The Ministry of Justice should therefore include the different complementary areas of social welfare law in its pilot, rather than simply one specific area. Crucially, the government must listen to the experts in early advice, including the Law Centres Network, Citizens Advice and the wider advice sector, when designing and evaluating the pilot.
Review of criminal legal aid fee schemes
Disputes about remuneration for criminal defence lawyers have, in recent years, led to protracted litigation and direct action. One could argue that the pledge to "complete a comprehensive review of the criminal legal aid fee schemes and structures" by summer 2020 is an exercise in buying time while saving money.
Nevertheless, this review must be seen as an opportunity for criminal lawyers to engage with the government and make the case for proper remuneration to ensure a sustainable profession. Young Legal Aid Lawyers and other representative groups have been invited to join a panel of practitioners to advise the Ministry of Justice on this "holistic" review of criminal legal aid, and will use our voice to advocate on behalf of aspiring and junior crime lawyers.
Legal aid for inquests
At the same time as publishing the LASPO review, the Ministry of Justice also completed a review of legal aid for inquests. The government refused to introduce non-means tested legal aid for bereaved families for representation at inquests where the state is represented, continuing an unjustifiable 'inequality of arms' faced by many families.
In response, the charity INQUEST launched a campaign for automatic funding for legal representation following state-related deaths, holding an event in Parliament at which many families spoke movingly about their experiences at inquests. Richard Burgon pledged Labour's support for the campaign, while Lucy Frazer was unable to offer anything of substance from the government.
In this and the other areas referred to above, it is up to all of us to keep up the pressure and hold the government's feet to the fire. Until our society ensures equal and effective access to justice for everyone within it, our adherence to the rule of law will remain imperfect.
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