Authors:Katherine Barnes and Oliver Carter
Last updated:2023-09-18
“Now that the devastating effects of LASPO are clearly apparent, there is a growing consensus that enough is enough.”
Marc Bloomfield
At times in recent years, it has felt like the post-implementation review of Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) Part 1 is the only game in town for campaigners seeking to repair the crumbling edifice of access to justice. Now that the review is underway, the onus is on us all to make the case for legal aid as best we can to the Ministry of Justice (MoJ).
With this in mind, we have been listening to YLAL members across the country to ensure that our written submission to the LASPO review reflects the concerns and ideas of aspiring and junior legal aid lawyers nationwide. We have met directly with the MoJ LASPO review team, and attended superb conferences on the review organised by the Legal Aid Practitioners Group in London (15 June) and on ‘Legal aid and society’ by the Public Law Project (PLP) in Manchester (19 July).
We are also engaging with MPs across the political spectrum to try to build consensus where possible – as called for by Lord Willy Bach and Sir Henry Brooke following the publication of the excellent final report by the Bach Commission on Access to Justice, The right to justice (Fabian Society, September 2017).
One of the fruits of this work was a brilliant article by Alex Chalk MP for ConservativeHome (‘If British values are to be realised, Conservatives must fight for legal aid’, 9 June 2018), which made the Conservative case for legal aid, with particular support for publicly funded early legal advice and updating of the strict financial eligibility criteria. As Chalk argued in his article – which was the brainchild of YLAL committee member and PLP Justice First Fellow Ollie Persey – if the rule of law and the notion of ‘fair play’ are to mean anything, ‘it is vital that legal redress is available to all – regardless of income or background'.
Recent reports by the Joint Committee on Human Rights (JCHR) (Enforcing human rights. Tenth report of session 2017–19, HC 669/HL Paper 171, 19 July 2018) and the Justice Committee (Criminal legal aid. Twelfth report of session 2017–19, HC 1069, 26 July 2018) have added to the substantial evidence base for positive reform and to the growing consensus that there is a crisis in access to justice that requires urgent attention. Indeed, the Justice Committee found the difficulties facing the criminal justice system to be so serious and urgent that it was necessary to take the unusual step of publishing the report without a public call for evidence or a response from the government (see page 6, para 9).
The JCHR quoted our written submissions in relation to the financial eligibility criteria for civil legal aid (see page 14, para 36 of the report), and made important conclusions and recommendations to address the ‘damaging effects of legal aid reforms’ (pages 46–47). The committee shared the concerns of many witnesses that ‘the pressures caused by the reforms to legal aid are having a severe impact on legal aid professionals, damaging morale and undermining the legal profession’s ability to undertake legal aid work, leading to consequent grave concerns for access to justice, the rule of law and enforcement of human rights’ (page 25, para 83).
While access to justice has been severely restricted, we should not forget the significant victories won in the courts and following direct action.
It can be tempting to lapse into hopelessness and pessimism at the prospect of the government blithely ignoring the mass of evidence of the hardship caused to ordinary people by LASPO and subsequent reforms. While access to justice has been severely restricted, we should not forget the significant victories won in the courts and following direct action on the domestic violence eligibility criteria, exceptional case funding, pre-permission judicial review work, prison law legal aid, two-tier contracts, the housing possession court duty schemes, the residence test, employment tribunal fees and the 40 per cent cut in the number of claimable pages of prosecution evidence in Crown Court cases.
The next access to justice issue to be litigated may be a battle over backdating of legal aid certificates where providers need to carry out urgent work to protect their clients’ interests. The case is being brought by Duncan Lewis Solicitors, and argues that the Civil Legal Aid (Procedure) Regulations 2012 SI No 3098 do not prohibit the backdating of funding to the date of the initial application or, in the alternative, that the regulations are unlawful and should be quashed. Permission has been granted by the court, and a crowdfunding appeal has been set up on CrowdJustice to guard against the adverse costs risk in the event that the case is unsuccessful.
In short, the time is ripe for meaningful and much-needed reform. Now that the devastating effects of LASPO are clearly apparent, there is a growing consensus that enough is enough. This applies not only to judges, but increasingly to politicians across the political spectrum. In this context, it is critical that full advantage is taken of the next great opportunity for change, the LASPO review. YLAL therefore calls on all readers of Legal Action to make their voices heard by contributing to the review process – it’s #time4justice.