Authors:Katherine Barnes and Oliver Carter and Siobhan Taylor-Ward
Last updated:2023-09-18
'The right to justice could serve as a blueprint for legal aid policy for decades to come.'
‘It is, after all, fairly simple: unless everybody can get some access to the legal system at the time in their lives when they need it, trust in our institutions and in the rule of law breaks down. When that happens, society breaks down,’ said Lord Bach in his foreword to The right to justice: the final report of the Bach Commission (Fabian Society, September 2017, page 5).
We expect many readers of Legal Action were inwardly cheering as they read the final report by the Bach Commission on Access to Justice, published on 22 September 2017 and launched at the Labour party conference the following week. Unsurprisingly, given the expertise and experience of the independent commissioners appointed to assist Lord Bach, the report identifies the crisis in access to justice and makes bold and positive recommendations for immediate and long-term action.
The report’s headline proposal – for a statutory right to justice that would include the right to receive reasonable legal assistance without costs an individual cannot afford – has the potential to revolutionise access to justice. As the report acknowledges, the ambit of an enforceable right would develop over time and could enable courts to determine when legal aid should be made available in the interests of justice: ‘In time, court cases will further specify, and act as a guarantor of, our right to justice’ (page 11).
In his foreword, Lord Bach expresses hope that the proposed Right to Justice Act will ‘help lift the provision of justice above the political fray’. To this end, the commission recommends the establishment of an independent Justice Commission to monitor and enforce the right to justice, and the replacement of the Legal Aid Agency (LAA) with ‘an independent body that operates the legal aid system at arm’s length from government’ (pages 6, 9 and 34). This will surely find favour with those legal aid lawyers concerned by the suspected influence of the Ministry of Justice on the LAA’s operational decisions.
In our submission to the Bach Commission, YLAL identified the removal from scope of various areas of law, by virtue of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO), as a priority area of concern that results in the denial of justice to many thousands of people each year. We also highlighted the effect of the overly stringent financial means test for legal aid, which has resulted in a drastic reduction in the proportion of the population that is eligible for civil legal aid in recent decades, as well as the impact of unaffordable court and tribunal fees.
We are therefore heartened to see that The right to justice recommends reform of the means test to create ‘a significantly simpler and more generous scheme’ (pages 7 and 23) that ensures many more people qualify for civil legal aid (the report suggests it should cover ‘perhaps half of households as was the case in the 1990s’ (page 12), or everyone below median income) and that the government restores legal help to pre-LASPO levels for all social welfare law. The Fabian Society, which assisted in preparing the report, estimates that the cost of the proposals would initially be around £400m per year.
Other welcome recommendations include the proposal to bring all matters concerning legal support for children back into the scope of civil legal aid, repeal of the ‘no permission, no payment’ regulations for judicial review (Civil Legal Aid (Remuneration) Regulations 2013 SI No 422 reg 5A), urgent reform of the exceptional case funding system, and for legal aid to fund representation of bereaved families at inquests where the state is funding one or more of the other interested parties. The report also suggests that the government should consider the ‘polluter pays’ principle in cross-charging the costs of justice associated with decisions made by the state (perhaps, in particular, the Department for Work and Pensions).
YLAL welcomes the commission’s call for the government to order an independent review of the legal aid profession and its continued viability, which should ‘consider the effects of the decision to cut the bursary scheme for aspiring legal aid lawyers’ (pages 9, 34 and 38). We know from our research on access to the profession that pursuing a career as a legal aid lawyer – never an easy option – has become increasingly difficult since LASPO came into force, and for many from less advantaged backgrounds it is now nigh on impossible.
We believe The right to justice could serve as a blueprint for legal aid policy for decades to come. Its proposals would undoubtedly advance access to justice, increase the accountability of the state and strengthen the rule of law. The next step is to convince Jeremy Corbyn’s Labour party to adopt the report’s recommendations as party policy, and to motivate Theresa May’s Conservatives to give the report fair and careful consideration as part of the government’s ongoing review of the legal aid cuts, due to be completed by April 2018.
YLAL encourages you to write to your MP, whichever party s/he represents, to ask him/her to read and respond to The right to justice. You can find a template email on the YLAL website.