For the LASPO review to be worthwhile, it must acknowledge the Act’s detrimental impact
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Marc Bloomfield
A good many stories over the past few years have run in this and other legal media about the much-delayed post-implementation review of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO). The review is the hook on which hang many hopes of getting the government to reverse the main adverse impacts of LASPO, particularly on vulnerable groups. (To leave you in no doubt, LAG does not believe there have been any positive impacts!)
The general election last year meant the review was postponed again and we got the impression that the powers that be at the Ministry of Justice (MoJ) were in no rush to reschedule it. Of course, one of the reasons for the delays has been the regular changes in the political leadership at the MoJ: the previous justice secretary and lord chancellor, David Lidington, only lasted six months before being replaced by the current incumbent, David Gauke.
Well, please contain your excitement: the review is now underway. The MoJ has established consultative groups in civil, family and criminal justice, as well as the advice sector. It also says it will accept submissions and data from individuals and organisations and, later this month (15 June), there will be a conference organised by the Legal Aid Practitioners Group (LAPG) at which members of the review team will hear from providers.
The conference will include sessions on access barriers and navigating the justice system, big ideas for the future of legal aid. Specific areas of law, such as housing, welfare benefits, and immigration and asylum support law, will also be looked at in detail. The session on reducing bureaucracy should be interesting, as LAG is sure the attendees will want to vent some anger towards the Legal Aid Agency, whose procedures, particularly CCMS, are putting many off continuing to provide legal aid. Full credit should go to LAPG for organising the conference as it will be an important opportunity for officials from the MoJ to hear from the many organisations that have not been included in the formal consultation groups (see next month's Legal Action for an article on the conference).
The process for the review and its terms of reference were outlined in a document published by the MoJ on 8 March 2018. The MoJ makes the point that there have been developments in the justice system since LASPO became law and so the review should take account of these. As reported this month, though, progress on courts and tribunals reforms has not been as rapid as the government would have hoped (see ‘Courts and tribunals reform programme progressing more slowly than expected’).
LAG does believe that, particularly with form assembly programs such as the ones for applying for probate (Form PA1), progress is being made in implementing digital systems that allow better access to justice, but we are not convinced these are having much impact on the sorts of groups that the LASPO cuts hit hardest. There is a danger of the review disappearing down the digital rabbit hole with blithe assumptions being made about what technology can do to assist members of the public needing legal advice.
According to the MoJ, the purpose of the review is ‘to assess the extent to which the objectives of the LASPO changes were achieved’. For LAG, the main problem with this is that the objective to save money became the overriding one; the government needs to accept that LASPO has substantially damaged access to justice for the public, especially the poor and other disadvantaged groups.
We would urge the MoJ to look again at the equality impact assessments (EIAs) that were prepared as part of the LASPO legislative process. They are now eight years old and could do with being updated,1The cumulative EIA has been updated, though only in 2011, ie the year following its initial publication. but all the indications are that not much has changed for the protected groups on which they reported.
The EIAs demonstrated that many of the LASPO cuts would have a disproportionate impact on disadvantaged groups protected by equality legislation. For example, 58 per cent of clients needing benefits advice were sick or disabled and 27 per cent were from black, Asian and minority ethnic (BAME) groups (as opposed to 13 per cent of the general population). In housing, 61 per cent of legal aid clients were women and 32 per cent were from BAME groups.
LASPO has resulted in what amounts to systemic discrimination that, if it was not for the fact that the government departed from previous practice and put the scope changes in primary rather than secondary legislation, would in all likelihood have been declared illegal by the courts. Innovations, digital and otherwise, should be considered as part of the review process, but there needs to be acknowledgement from ministers that LASPO has led to hundreds of thousands of people being excluded from the justice system. They also need to recognise that replacing funding lost by advice services due to local government and other cuts, as well as restoring some, if not all, of the cuts to legal aid is the only way forward.
 
1     The cumulative EIA has been updated, though only in 2011, ie the year following its initial publication. »

About the author(s)

Description: Steve Hynes
Steve Hynes is a freelance consultant and writer. He was previously director of LAG. He is a well-known commentator in the written and broadcast media...