Authors:James Sandbach (Director of policy and external affairs at LawWorks.)
Created:2017-10-31
Last updated:2023-09-18
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Readers will remember that earlier this year, the government announced the timetable for the long promised ‘post-implementation review’ of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO), which it was aiming to see completed in 2018.1See Minister finally announces a long-awaited LASPO review – but how, when and about what exactly?. With the process and timetable now mired in uncertainty, a stakeholder group has produced some potential guiding principles to structure the review. Sir Oliver Heald QC MP, then minister of state at the Ministry of Justice (MoJ), told three All-Party Parliamentary Groups that the initial stages of the review were to be undertaken by way of a ‘post-implementation memorandum’ submitted by the MoJ to the Justice Committee, with a follow-up review being undertaken in consultation with the committee and stakeholders. Heald also indicated that the outcome of the review would lead to a new government green paper on ‘legal support’.
The intervening election, however, has left both the process and timetable in considerable uncertainty, with the new Justice Committee only confirmed in place on 11 September (see
Housing lawyer Charalambous appointed to Justice Committee). Uncertainties notwithstanding, stakeholders have been working behind the scenes to inform the committee about the pressing issues that the ‘post-implementation review’ needs to address. With all of the official datasets demonstrating a significant and ongoing decline in civil legal aid supply, and further barriers to access to justice, a stakeholder group has been working to amass evidence and calibrate some agreed positions across the sector about the priorities for change. In its own
memo/letter to the Justice Committee, the stakeholder group has suggested that the review should be structured around four guiding principles:
•Client focus
The memo calls for the legal aid and support system to be redesigned for the needs of its users, ie, for those on low incomes struggling with legal problems and issues, and for those with wider support needs and vulnerabilities. This would mean an operationally simpler and less bureaucratic system that both users and providers could navigate more easily, taking into account the need some groups have for additional support, and an emphasis on intervening earlier in the cycle of legal problems to avoid dispute escalation and adverse impacts. Under LASPO, the focus has shifted away from early intervention in civil and family law problems, even though a combination of preventative measures and public legal education should be both a no-brainer and a cost-saver for policy-makers. The complex bureaucracy for administering means and merits tests for applicants, and matter starts for providers, is disproportionate and wasteful.
•A coherent and rational scope
The memo challenges the silo approach of LASPO, which limits legal aid scope in ways that are irrational and fails to understand or address legal needs, problem prevalence and clusters. While recognising that government needs a rationing framework, that framework itself needs to be rational, ironing out the current contradictions – evident, for example, in the treatment of immigration matters, children’s rights and tenancy protection – and should also make more generous and flexible provision for exceptional circumstances.
•Rule of law
The memo argues that supporting the rule of law and equality of access to the legal system should be the underpinning principles for the legal aid system. This links to the reputational values of quality and impartiality in our justice system, as well as upholding the fundamental rights of a democracy for citizens to have the capacity to challenge unlawful actions by public bodies and private corporations.
•Evidence base and impact
Noting the Justice Committee’s previous concerns about the insufficient evidence base behind the LASPO reforms, the memo calls for all policy decisions on legal aid to be based on evaluation of impact and evidence. The memo also includes an appendix of extensive data sources, looking not just at the impact of legal aid changes on the justice system, but also the impact beyond, including the knock-on costs for health, local and social services, the Department for Work and Pensions and criminal justice, and how demand for legal assistance is often driven by government policies (eg, welfare reform). Much of the data speaks for itself; a brief analysis, for example, of the MoJ legal aid statistics shows a 75 per cent decline in civil legal aid supply, throughput and capacity since LASPO came into effect, removing advice from over 650,000 people annually against a backdrop of growing unmet legal needs (see page 4 of the stakeholder group memo).
Coming back to the review itself, though, the onus is on the MoJ to clarify how the review will progress and if it backslides on its promise of a comprehensive review, the new Justice Committee must hold ministers to account. For the benefit of objectivity, the best model for conducting the review would be to commission an independent review team, rather than the MoJ undertaking it in-house. In Scotland, for example, the review commissioned by the Scottish government of the legal aid system north of the border has been chaired by the chief executive of the Carnegie UK Trust, and supported by an expert panel. A similar approach could be followed in England and Wales, and two recent commissions on access to justice – one chaired by Lord Low
2The Low Commission was established by LAG with an independent chair, commissioners and secretariat supported by trusts and foundations. and one by Lord Bach
3The Bach Commission has been run by the Fabian Society. While it is intended to inform Labour party policy, it is independent from the party, with commissioners chosen for their expertise. – demonstrate the strengths of this approach. However, in the absence of an independent expert review body, the Justice Committee is well-placed to fill this space. Its chairman, Bob Neill MP, has been public and explicit in stating concerns that the cuts have gone too far and highlighting the committee’s role in bringing ministers to account. It is time for the Justice Committee to act.