We can’t wait for next summer’s LASPO review; the worst problems caused by the Act require solutions now
After much delay, the post-legislative review of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) has been announced. To kick-start the process, the government submitted a memorandum to the Justice Committee: Legal Aid, Sentencing and Punishment of Offenders Act 2012: post-legislative memorandum
(Cm 9486, Ministry of Justice (MoJ), 30 October 2017). In this document, the civil servants have provided a round-up of the details of the legislation's implementation and a preliminary assessment of its success in achieving its objectives. Legal Action
is primarily concerned with LASPO Part 1, which deals with legal aid. We believe the memo sets out in stark detail the damage the legislation has inflicted on access to justice.
Most of the cuts from LASPO fell on civil legal aid. Some areas of law were completely removed from the scheme, except in certain limited circumstances. For example, the number of welfare benefits cases has reduced from 83,000 in 2012/13 to 440 in 2016/17 (page 45, para 173). The brunt of the cuts fell on the legal help scheme – in which initial advice is given – down from 575,000 new cases in 2012/13 to 145,000 in 2016/17; in the same period, new cases involving representation have fallen from 150,000 to 105,000 (page 45, para 174).
One of the most controversial aspects of LASPO was the restrictions that were imposed on victims of domestic violence qualifying for legal aid. As detailed in the memo, the government has had to amend the regulations around the qualifying criteria for domestic violence victims three times.
ECF was designed to act as a human rights safety net, but the scheme has been impossibly bureaucratic in its operation, which has discouraged applications.
The lord chancellor and the MoJ have tended to be on the losing side in a succession of cases that have challenged LASPO’s attempt to restrict access to justice for vulnerable groups. The exceptional case funding (ECF) scheme is another example of this. ECF was designed to act as a human rights safety net by ensuring an alternative legal aid funding mechanism for cases that engaged human rights principles but were outside the regulations on scope. In practice, the scheme has been impossibly bureaucratic in its operation, which has discouraged applications. The scheme has been amended as a result of several court rulings against the government (for example, see R (Gudanaviciene and others) v Director of Legal Aid Casework and another  EWCA Civ 1622
At the time that the LASPO Bill was being debated in parliament, ministers emphasised that one of the main objectives of the legislation was to prevent unnecessary litigation, especially in private law family cases. Cuts totalling £178m a year out of overall projected cuts of £350m annually were to be made from private law family legal aid (these cases mainly involve issues arising out of divorce and separation). To offset this the government put some extra money into early mediation.
The memo document admits that instead of the predicted increase in the take-up of mediation services, ‘the opposite occurred’ (page 39, para 161). The resulting rise in litigants in person (LiPs) clogging up the family courts is one of the most urgent issues now facing the MoJ.
It’s an illuminating exercise to revisit the original figures that were set by the government for the legal aid budget. Some seven years ago, the coalition government published its Spending Review 2010
(October 2010, Cm 7942). This set a target of a 23 per cent reduction in MoJ expenditure for the four years from April 2011 (£9.36bn to £7.36bn), but the cuts in legal aid expenditure have far exceeded their original target of £350m. As confirmed in the MoJ’s memo (page 51, para 189), annual expenditure on legal aid has fallen by £950m from the £2.51bn spent in real terms in 2010/11 (a 38 per cent reduction against the 23 per cent overall target set for the MoJ by the spending review).
Successive ministers seem to have viewed the legal aid budget as a gift that keeps on giving, as regards finding cuts to balance the books at the MoJ. Their primary focus has been to reduce spending, with no regard for the wider consequences. Cuts to the other public services like the NHS can be quantified in waiting times and other statistics, but the impact of withdrawal of legal services is less easy to measure. There is growing anecdotal evidence, though, such as the problem of LiPs, about the impact of the reduction in legal aid.
One of the strengths of the memo is its comprehensive overview of the reviews and other literature on the impact of (and the challenges to) LASPO, such as the three reports from the Low Commission on the Future of Advice and Legal Support, which was established by LAG (page 36, paras 151–153). We believe this reflects a growing realisation among all concerned with justice policy that the government needs to rethink key aspects of LASPO. This emerging consensus includes Conservative politicians; for example, the solicitor general, Robert Buckland QC, told the Conservative party conference that there is a need to look at increasing spending on early advice (‘Solicitor-general backs rethink over legal aid cuts
’, The Times/The Brief
, 4 October 2017).
Action should be taken immediately to mitigate the worst effects of LASPO, rather than waiting for the conclusion of the review next summer. The cuts have exceeded the original targets and so the cash can be found to implement changes in policy. The lord chancellor and the other ministers at the MoJ need to provide the leadership to make this happen.