Authors:Steve Hynes
Last updated:2023-09-18
We need a large dose of political will to cure the ills that LASPO has caused
Marc Bloomfield
Many words of vitriol have been poured out onto the pages of this and other publications about the impact of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) on people seeking access to justice. The coalition government knew that it would be the poorest and most vulnerable who would be hit hardest: the excellent equality impact assessments prepared as part of the legislative process told them this. It went ahead regardless, as austerity measures overrode all other priorities. For the past couple of years, all those concerned with access to justice policy have been pressing for a post-legislative review of LASPO to right at least some of the wrongs it has inflicted. It now looks like we only have to wait a few weeks to find out what – if anything – will change as the government plans to publish its report on the review in December.
The delays to the review were farcical and Brexit remains a major reason for them. After a rather stuttering start, once the review got underway the level of engagement with practitioners and other interested parties by the review team from the Ministry of Justice (MoJ) grew. The Legal Aid Practitioners Group deserves much credit for enticing the civil servants out of the MoJ bunker at Petty France to a special event held in June to discuss the review with practitioners. The day produced over 50 pages of ideas and analysis that were forwarded to the MoJ. There have been a good many other meetings and numerous well-drafted submissions made to the review team (see page 5 of this issue for Jo Hickman’s article on Public Law Project’s submission).
Lucy Frazer QC MP, the minister responsible for legal aid, has also held meetings to discuss the review, the latest of which took place last month with members of the Bach Commission on Access to Justice. From speaking to people who attended the meeting, it seems Lord Bach, the last Labour minister responsible for legal aid, got a polite reception from the minister, who listened attentively to his and other members of his commission’s concerns. After all the talk and well-crafted documents, though, will the government announce any change of heart on the LASPO cuts?
Intriguingly, there have been signs that the government is acknowledging that something needs to be done about early advice.
It seems certain that something will be announced around digital advice. Enough hints have been dropped to indicate this, and it would fit with the digitisation strategy for the courts and tribunals system. Also, intriguingly, there have been signs that the government is acknowledging that something needs to be done about early advice. There seems to be growing evidence that the argument advanced by the Low Commission and taken up by others (including the Bach Commission), that investment in early advice ultimately saves the public purse cash, is being accepted. There is, though, a fundamental disagreement over how any new services around early advice should be delivered.
In its submission to the review team (September 2018), the Law Society talks about the ‘unique skill set possessed by solicitors that enables them to provide a service to clients that cannot be substituted with non-qualified advisers or automated information systems’ (page 5). There is a very big pinch of vested interest at the heart of this statement. Part of the history of civil legal aid services is that they developed mainly in family law because, yes, solicitors were best qualified to provide them, but it also suited the private practice model to do so. Citizens Advice has just been awarded a large wad of cash to give advice on universal credit (see page 4 of this issue). This is a complex and developing area of law, but the Law Society is not arguing that the money should have gone to solicitors to deliver the service.
LAG shares many of the Law Society’s concerns. There is much untapped potential for digital advice services as technology has moved on in the five years since LASPO came into force, but for many people these services can take them only so far along the road to resolving a legal problem. The sort of vulnerable clients to whom the LASPO cuts denied justice often need bespoke advice and representation, as well as a human relationship, for which clever tech is no substitute.
Advice from a well-trained and experienced non-legally-qualified individual can be as good as that from a legal professional, but the reality is that in many cases only the threat of litigation will get results. There is a concern that the MoJ intends to announce some sort of hybrid of digital and advice services that does not have the necessary legal knowledge and skills at its core to achieve very much for the public.
Finally, at the heart of many of the problems caused by LASPO is the purpose for which it was conceived: to cut expenditure on the system. Measures such as uprating the income threshold for the legal aid means test and bringing areas of law back into scope, which many are calling for, will need cash. The MoJ’s budget has been cut by around 40 per cent under austerity policies, so the solution is ultimately to be found in the Treasury rather than the lord chancellor and his team.