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The Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) was one of the flagship statutes of austerity. It is timely, then, that just as the government’s post-implementation review (PIR) of LASPO draws to a close, we are told that the policy of austerity is at an end. How Theresa May’s recent declaration at the Conservative party conference on 3 October 2018 will play out in policy-making remains to be seen, but we are assured that ‘better days’ are ahead. Might we hope these better days will be characterised by adequate access to justice? LASPO was intended to achieve significant savings, but they were not meant to be achieved at the cost of fundamental rights. Indeed, access to justice was described by Ken Clarke, author of LASPO, as a ‘fundamental part of a properly functioning democracy’ (Ken Clarke, ‘
Legal aid is safe where it matters most’,
Guardian, 19 December 2011). It was, ostensibly at least, acknowledged as being an essential, constitutional right.
Public Law Project (PLP) is a legal charity with a core objective to improve access to justice. When LASPO came into force in 2013, we set out to mitigate the negative impact many feared it would have. We supported many individuals, provided training, undertook research, published resources, responded to consultations and prepared briefings for parliamentarians. We developed an unparalleled specialism around the exceptional case funding (ECF) ‘justice safety net’ scheme. Where policy approaches failed, we brought litigation (both as instructed solicitors and in our own name) to rectify enduring unlawfulness arising in the context of the implementation of the LASPO scheme (see Matt Ahluwalia,
LASPOA briefing: Public Law Project’s litigation, PLP research paper, 14 June 2018).
I am therefore confident that we did our utmost to help ensure that the LASPO scheme operated at its highest. We tried to facilitate the delivery of that legislative intent. Like so many others within the justice system, we did our best with what we had been given. But was what we were given good enough?
Earlier this year, in the context of an ambitious programme of court reform, and expressions of concern from members of the judiciary, Amnesty International, the Bach Commission, and many others, the government announced the long-awaited PIR of LASPO. The terms of reference recognise that the ‘ability of everyone to resolve their legal issues is vital to a just society’.
On 27 September 2018, we submitted and published
PLP’s response to the PIR. We consider what is meant by ‘access to justice’. We look at the legislative history and note that the architects of the original Legal Aid and Advice Act 1949 intended to ensure
equal access to justice. We summarise the evidence that suggests that LASPO has not met its policy objectives. Ultimately, we set out our concluded view that LASPO has had a significant and regressive impact on access to justice.
The key conclusions we draw are that:
•removing areas of law from the scope of legal aid has restricted access to justice, with the lack of early legal advice preventing the early resolution of cases;
•there is a particular need to bring immigration cases and private law family cases back into the scope of legal aid;
•the financial eligibility criteria do not reflect financial realities. They make legal aid inaccessible for people already unable to sustain an acceptable standard of living even without having to pay for legal services;
•the ECF scheme does not provide an adequate safety net for those who need legal aid to prevent a breach of their rights under the European Convention on Human Rights or EU rights;
•the civil legal aid fees paid and cuts in the scope of legal aid under LASPO threaten the sustainability of legal aid practice, contributing to advice deserts;
•the mandatory telephone gateway is a barrier to access to justice and does not achieve value for money.
We note that the right of access to justice has special constitutional, social and economic importance. We propose that any framework through which that right is to be given meaningful effect must be:
1accessible;
2effective; and
3sustainable.
We consider what accessibility, efficacy and sustainability mean. We set out how the post-LASPO scheme fails to meet these key criteria. In short: LASPO is not good enough. The current justice framework does not operate so as to ensure the ability of everyone to resolve their legal issues.
It is a sad reality that the LASPO legal aid scheme has left justice inaccessible to many, including some of the most disadvantaged in our society. It is incumbent upon our government to acknowledge that the implications of this are profound. Like so many others, we now hope that something better may come out of the PIR. We conclude our response with a number of practical recommendations, the cumulative impact of which would be a significant step towards a more just society. Our point is not only that we hope for something better. We need something better.
It is a fact that the proper operation of an adversarial common law jurisdiction assumes access to effective legal advice and representation. Of course, we do not discount the possibility that, in time, a combination of factors such as new technologies, simplified legislation, better public legal education, better decision-making, properly resourced inquisitorial practices in courts and tribunals, and so on, could serve to reduce the extent to which adequate access to justice in this country remains dependent on legal representation. But that is not the position now, nor can it safely be assumed as a given outcome of the ongoing court reform programme. In any event, it will always be necessary that the implementing framework be accessible, effective and sustainable.
And so, we look forward to better days …