.
PLP submitted
evidence to the PIR, which drew on our experience of undertaking casework, research, training, and policy work directed at mitigating the impact of LASPO on access to justice. Our submission emphasised the need for a legal aid scheme intended to make justice accessible for all, and designed and funded so as to be accessible, effective and sustainable. It is, therefore, heartening to see the government confirm its acceptance that the purpose of legal aid is to ensure that those who need it can access legal advice and representation,
3LASPO Part 1 review, para 1, page 5. and that it is ‘committed to delivering an effective and accessible system of legal aid for the long term’.
4Legal support: the way ahead, page 39.We also identified a number of areas in which the legal aid scheme under LASPO falls short of those aims. The action plan contains commitments that address some of PLP’s concerns, including limited extensions of the scope of legal aid in immigration (for unaccompanied and separated migrant children) and family (for special guardianship orders);
5Legal support: the way ahead, page 13. removal of the mandatory telephone gateway;
6Legal support: the way ahead, page 15. and the extension of non-means tested legal aid for parents in some family proceedings.
7Legal support: the way ahead, page 11. These changes should all make legal aid accessible to more people who need it to be able to resolve their legal problems.
PLP looks forward to engaging with the promised further review of the operation of the exceptional case funding (ECF) scheme.
8Legal support: the way ahead, page 14. We submitted evidence
9PLP research briefing paper: exceptional case funding (PLP, May 2018) and PLP PIR submission. to the PIR of an acute need to reform the scheme, particularly to: improve the information and assistance available for applicants; reduce the complexity of the forms required; introduce a proper procedure to determine urgent applications; and remove the additional barriers faced by those who managed to obtain ECF without the assistance of a provider. It was apparent from the outset of the ECF scheme that it was not operating as the intended ‘safety net’, and it is welcome that the government now accepts that reform is needed. The decision to carry out a further review should not, however, lead to unnecessary delay: it is essential that this review results in changes being swiftly implemented to ensure that ECF is available to those who need it, when they need it.
The review of the financial eligibility criteria is also a positive step. However, it is concerning that the review is not scheduled to conclude until summer 2020 and there is no commitment to reform until it is complete. In 2018, Professor Donald Hirsch, in reports commissioned by the Law Society, demonstrated that people who are already unable to sustain an acceptable standard of living without having to pay for legal advice and representation are excluded from legal aid under the current financial eligibility criteria, some of which have not changed since 2000.
10Priced out of justice? Means testing legal aid and making ends meet, Loughborough University, March 2018 and Report on the affordability of legal proceedings for those who are excluded from eligibility for criminal legal aid under the Means Regulations, and for those who are required to pay a contribution towards their legal costs, Loughborough University/Law Society, September 2018. Unless and until the criteria are reformed, such people will continue to be excluded from legal aid and so from access to justice. It goes without saying that this review must lead to an evidence-based reform of the eligibility criteria to ensure that legal aid is available to those who need it. However, given the length of time before the review will result in reform, urgent steps are needed now to limit the damage caused by the current, outdated, criteria. A simple first step would be to introduce a discretion to grant legal aid to someone who does not meet the existing criteria but who is, in fact, unable to afford the legal advice and representation needed for them to have effective access to justice.
More disappointing is the limited engagement with another of PLP’s key concerns, the sustainability of the civil legal aid sector and the growth of advice deserts. The PIR report acknowledges that further research is needed in this area,
11LASPO Part 1 review, para 803, page 192. but the problem is not addressed in the action plan. It is unclear why the government could not commit to a review of civil legal aid fees and sustainability, not least in light of its commitment to conduct such a review in relation to criminal legal aid.
12Legal support: the way ahead, page 38.The PIR reports and the action plan are to be welcomed in so far as they indicate a willingness to listen and engage with the sector, and contain some commitments that will, and some that may, improve access to justice. However, the proposed further reviews of the ECF scheme and financial eligibility criteria should not legitimise delay in introducing urgently needed reform. It is also unfortunate that the opportunity to address the sustainability of civil legal aid has not been taken, and that the only additional funds apparently secured so far are not for legal aid itself.
13An additional £1.55m allocated to the Litigants in Person Support Strategy (Legal support: the way ahead, page 26) and £5m to fund technological innovation (Legal support: the way ahead, page 34). This is an adversarial common law jurisdiction operating on the assumption of access to legal advice and representation. Legal aid is the means by which those otherwise unable to afford legal advice and representation are able to access justice, and it must be properly funded to be sustainable.