Minister finally announces a long-awaited LASPO review – but how, when and about what exactly?
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Administrator
During the legislative passage of the legal aid reforms (incorporated into the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO)), ministers committed to undertaking a ‘post-legislative review’ of the changes after three years of the new system coming into effect.
Following somewhat damning indictments of the reforms by the National Audit Office (NAO), two select committees, reports from voluntary sector organisations, and the Low Commission, which urged the Ministry of Justice (MoJ) to ‘bring forward’ the review, last year pressure started building to get an analysis underway.
At a joint meeting of three All-Party Parliamentary Groups (APPGs, on Legal Aid, Pro Bono, and Public Legal Education) on 17 January, Sir Oliver Heald QC, as minister of state, said the MoJ believed that enough time has now passed and it can begin the review process and further that he was ‘ready to share the timetable’. Heald said the review will begin with the MoJ submitting a ‘post-legislative memorandum’ on LASPO to the Justice Select Committee (JSC) before May 2017. This will cover Parts 1, 2 and 3 of the Act (legal aid, litigation funding and costs, and sentencing and punishment of offenders) and look at the impact of implementation on litigation and the justice system, drawing on MoJ data, as well as various reviews and studies undertaken by the NAO and others. This is intended to form an initial assessment of the extent to which the changes have ‘met their objectives’. Heald then said that once initial data is collected and the memorandum published, the MoJ will look at carrying out a full post-implementation review that will range wider than the memorandum and aims to involve key stakeholders in a collaborative consultation, with the final outcome of the review to be published in April 2018. He assured stakeholders present that the MoJ intends to work closely with key partners across the sector and will provide more detail on the process when the memorandum is presented. Along with the work of the JSC, which may choose to undertake its own inquiry, Heald said he hopes the review will provide a robust picture of the landscape.
The practice of government departments producing memoranda for select committees dates back to recommendations by the Constitution Committee and the Law Commission in 2006, which were then accepted by the Labour government in a white paper Post-legislative scrutiny – the government’s approach (Cm 7320, Office of the Leader of the House of Commons, March 2008) and continued by the coalition government thereafter. However, the focus of a memorandum and post-legislative scrutiny is narrow – whether legislation has met its intended purpose – and in practice few memoranda have triggered wider select committee or government reviews. So it seems, from what Heald said, that there will be two separate processes undertaken, with a broader review building on the more limited assessment undertaken in the memorandum.
In practice, few memoranda have triggered wider select committee or government reviews.
As mentioned above, the select committee may also want to undertake an inquiry in response to the memorandum. However, in these three instances it is unclear what the terms of engagement with stakeholders will be – the memorandum process will not involve consultation, nor did he commit to a written consultation process at a later stage.
The meeting of APPGs was instructive in other respects, especially the aspirations that Heald holds for the courts modernisation programme on which the government is spending nearly £1bn. While speaking positively about the trusted legal system in England and Wales and the professionalism of lawyers and judges, he emphasised that it is ‘right to modernise’ as the system is behind on technology, often old-fashioned and needs to work for everyone. The MoJ’s proposed reforms aim to make the court process ‘less stressful and no more combative than it needs to be’, with objectives agreed between the Lord Chancellor, the Lord Chief Justice and the President of Tribunals, and the jointly announced transformation and investment plans in September. The reforms focus on:
digitalising the courts to reflect the needs and expectations of all users;
removing unnecessary hearings, redundant paper forms and duplication; and
improving criminal court procedures.
In respect of criminal court procedures, the work started last year. Heald emphasised the need to improve processes for victims, and reported on pilot developments in Liverpool, including a new system to allow evidence to be pre-recorded, which the government intends to roll out nationally. The entire criminal justice system is being digitalised, with the government investing £270m in the project; the pilot in Liverpool focuses on the ‘front end’, from police station to court room, to get police files passed on seamlessly and electronically to the Crown Prosecution Service and deal with preliminary issues. The MoJ also wants to introduce an online process for summary, non-custodial offences, allowing defendants to plead online and so reduce the number of cases where hearings are required; defendants will use an entirely automated system.
In the civil courts, the MoJ is pushing forward on Briggs LJ’s proposals for online courts (see Civil courts structure review: final report, Judiciary of England and Wales, July 2016). Again, Heald emphasised that the aim is to minimise combative hearings and resolve disputes with minimum acrimony. The reform programme envisages that all civil money claims will be digitalised by 2020, and there will be benefits and long-term savings from reduced court attendance. The MoJ is also seeking to extend the powers of the High Court and county courts to enable attachment of earnings orders and enforcement. Finally, closing dilapidated court buildings may allow reinvestment in technology and reduce dependency on physical estate; according to the minister, the average court is used only 50 per cent of the time.

About the author(s)

Description: James Sandbach - author
James Sandbach was director of policy and external affairs at LawWorks from 2017 to 2021.