In Autumn 2015 the Labour Party asked Lord Bach to carry out a review of access to justice in England and Wales.
The Bach Commission have just published their interim report, which is called : Crisis in the Justice System in England and Wales. The report can be accessed at http://www.fabians.org.uk/publications/the-crisis-in-the-justice-system-in-england-wales/.
CLP supports the following submissions made by the Bach Commission in their interim report:-
The Legal Aid, Sentencing and [ Punishment] of Offenders Act 2012 was a wholesale reform aimed at reducing the cost of our justice system. Most significantly, it removed from the scope of legal aid most cases involving housing, welfare, debt, employment, immigration, family and medical negligence; they replaced the non-departmental Legal Services Commission with the Legal Aid Agency, under the control of the Ministry of Justice (p7).
Hundreds of thousands are now going without the legal aid they require. The number of litigants in person is rising, and the number of ‘acts of assistance’ granted through legal aid has been falling consistently since 2009/2010 (p8).
Research focusing on the adverse consequences of civil problems shows that legal aid expenditure on housing, debt, benefits and employment advice is cost-effective in the long run. This is because the provision of legal aid allows for early intervention and prevents the escalation of conflict and costly appeals…… At the same time as whole areas of legal problems were taken out of scope by LASPO, a new means test was introduced for those areas which remained. This reduced the group of those eligible for legal aid even further (p9).
Exceptional case funding (ECF) was introduced as part of LASPO with the stated aim of ensuring that out-of-scope cases with exceptional circumstances would have access to… legal aid when needed. The evidence suggests it has failed to do so, because its criteria for inclusion are unrealistically strict. Far too few people have been covered by the scheme and it has thus failed to function as an effective safety net.
LAA statistics show that whereas the government suggested around 847 children and 4,888 young adults would be granted ECF each year, in fact between October 2013 and June 2015 only 8 children and 28 young adults were granted legal aid under the scheme.
According to the latest LAA data, there has been a recent upturn in the success of applications for ECF, due to a liberalisation in acceptance criteria prompted by four court decisions. However, a recent Court of Appeal decision has made the criteria more restrictive again in certain respects…… (p10).
Cuts continue to worsen the provision of legal advice, with Ministry of Justice research showing that the number of not-for-profit legal advice centres fell from around 3,226 in 2005 to 1,462 by 2015 (p11).
Government statistics show that between May 2010 and July 2015, 146 courts have been closed. In addition to these closures, in February 2016, a further 86 court and tribunal buildings were earmarked for closure (p12).
As Richard Miller [of the Law Society] in his oral evidence to the Commission told us, while the Legal Aid Agency’s budget has been cut by 25% since LASPO, administration costs stayed static at over £100m in 2014-2015 and rose by £2.1m in 2015-2016. This despite the MoJ’s avowed aim to reduce the administration budget by 50% by 2019-2020.
LAA services, particularly the cost case management system (CCMS) and the civil legal aid gateway telephone service, appear to be dysfunctional. CCMS was introduced in 1 April 2016 following years of problematic piloting, as a compulsory mechanism for applying for legal aid. It replaces a more efficient paper system, in which legal service providers could expect to receive a response to their urgent applications on the day that they submitted them (p14).
As we have seen, recent reforms to the justice system such as the implementation of the LAA’s CCMS have only added to the burden of bureaucracy, taking away valuable time that could be spent on solving people’s problems (p17).
CLP do not believe that public law education, which the Commission seems quite keen on, would be of major assistance in dealing with the crisis in legal aid and access to justice. This does not mean that we do not support better legal education in schools and elsewhere.
In terms of technological innovation, we agree with the statement at p22 of the report, where it is stated :
There will always be a large part of the population which will need …… face-to-face support, and existing legal aid and advice practitioners should be supported rather than replaced.