The Government’s long awaited review of the Legal Aid, Sentencing and Punishment of Offenders (LASPO) Act 2012 has finally been published: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/777038/post-implementation-review-of-part-1-of-laspo.pdf
The Ministry of Justice (MoJ) has also published an ‘action plan’: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/777036/legal-support-the-way-ahead.pdf
The review is deeply disappointing. Some matters are said to require further review or research. Those changes that are going to be brought in are relatively minor in the scale of things.
Speaking of the Review, Lord Bach, former Labour justice minister and author of the Bach Review ( see: http://www.communitylawpartnership.co.uk/news/bach-commission ), stated:
[LASPO] represents in concept and in practice a pretty fundamental attack on the concept of access to justice. Less justice, less advice, less practitioners, less students who have to study social welfare law as part of a law degree, more deserts, more citizens unaware of their rights, more lives that have had to suffer. Why all that? Just because the government of the day completely failed to grasp and understand that the law that gives justice to those who have the least is in some ways even more important to a decent legal system than the law that gives justice to those who have the most. Part one of LASPO remains, despite the review, a scandal. How disappointing the government did not have the courage to change it.
See ‘LASPO review a ‘missed opportunity’, says former justice minister’ https://www.lawgazette.co.uk/law/laspo-review-a-missed-opportunity-says-former-justice-minister/5069776.article?utm_source=dispatch&utm_medium=email&utm_campaign=%20GAZ141016
In terms of the work that we do at CLP the fundamental problems caused by LASPO and subsequent reforms remain untouched:
1. Judicial review
During the consultation process on proposals to amend the situation with regard to legal aid and judicial review, the vast majority of respondents indicated that most judicial review applications were settled prior to permission being dealt with and were settled successfully. Despite this, the Government brought into force provisions which mean that legal aid providers will not be paid on a judicial review application unless either permission is granted or the matter is settled prior to permission without costs being awarded to the claimant and the Legal Aid Agency exercises their discretion in favour of the provider. This has resulted in many providers no longer being willing to run judicial review cases.
2. Unauthorised encampments
As is well known, a significant proportion of the Gypsy and Traveller population who live in caravans have no alternative but to resort to unauthorised encampments due to the totally inadequate national supply of permanent and transit pitches and emergency stopping places. Prior to the bringing into force of the LASPO Act 2012 in April 2013, when a local or other public authority took eviction action in the county court, a Gypsy or Traveller facing such action who believed the action was unlawful (e.g. due to a failure to make welfare enquiries in line with government guidance and case law) could defend the action in the county court.
LASPOA 2012 left matters involving ‘loss of home’ in scope for legal aid but excluded from the definition of ‘loss of home’ trespassers such as Gypsies and Travellers on unauthorised encampments (in fact, it might be speculated that this exception was specifically created to target Gypsies and Travellers). Thus Gypsies and Travellers who want to challenge such action have to lodge a judicial review application in the high court and seek a stay of the county court action. A much less sensible and much more complicated route.
3. Housing law
The Low Commission on the Future of Advice and Legal Support was established to develop a strategy for access to advice and support on Social Welfare Law in England and Wales. The Low Commission was chaired by Lord Colin Low and was made up of eight other Commissioners with expertise in this area. The Low Commission was independent of Government, political parties and advice providers. The Low Commission called for the return of legal aid in Housing Law cases (see Low Commission Tackling the Advice Deficit, January 2014). For example, if legal aid was available for rent arrears cases (rather than just being available for cases where eviction action is threatened or has commenced) then many matters could be resolved before any eviction action was taken.
4. Exceptional funding
During the passage of the LASPO Bill through Parliament, the Government placed great emphasis on Section 10 of the Bill, the possibility of exceptional funding (EF).It was stated that this would act as a vital safety net. EF is intended to ensure that the failure to provide advice and representation to someone does not result in a breach of Article 6 of the European Convention on Human Rights (the right to a fair hearing) and does not breach European Union Law. EF is still only granted in about 50% of cases.
EF ought to be available to cover matters involving: Traveller planning inquiries; disrepair issues on Travellers’ sites which need to go to tribunal; demoted tenancy cases.
Many, many hours of solicitors’ and advisers’ time has been spent (and wasted) in attempting to get EF. It is absolutely clear to us that, in these cases, Article 6 is breached because clients are not able to deal with the relevant hearings and, thus, there is no equality of arms (the case of Airey – v – Ireland refers).
These are just a few examples of the fundamental problems that remain and which are not addressed by the LASPO Review.*
*There is a proposal to simplify the EF process but we do not believe this will have any significant effect on the EF system as it stands.