The LASPO review: edited version of speech by Steve Hynes to Westminster Legal Policy Forum on 19 March 2019
In this speech, I’ll try and focus on the positives around the LASPO review, but that’s a very much shorter section than I’d like it to be, the criticisms, much longer than I’d like, and a few thoughts on the future.
The joker in the pack in the LASPO review is the Legal support: the way ahead
strategy document. It was not expected and it is not the standard post legislative review because of it.
I am conscious there’s quite a few civil servants in the audience today and so I must say some of my best friends are civil servants, but I do not believe you get up in the morning and think, ‘Oh, we’ve got post-legislative review, yes, that’ll really get the juices flowing.’ For people inside Whitehall, such reviews are part of the grind, the process, and sometimes don’t enjoy a high priority.
But we (the legal aid lobby) have hung a lot on this in terms of what we expect because LASPO was such a miserable failure for access to justice.
There’s a lot of good in the review. For example, the change in scope for the special guardianship orders and the looking at the means test again. The change to non-means-tested public law family is another positive development.
And, of course the pilots which the MoJ has committed itself to.
Regarding the face-to-face pilot, the Low Commission
and Willy Bach’s Commission
reflect what seems to be a consensus across political parties and those concerned about access to justice, that early advice needs to be prioritised. This is really good to see and it is a point I’ll return to.
The £1.5m for litigants in person, another good positive development. The projects this will fund do good work. However, I can’t help but think this is all a bit judicial-led. Judges see people in court and want things done about it when they’re not represented, but of course we know that legal problems are an iceberg. What turns up in court is the tip of the iceberg, ie, a very small percentage of the legal problems people face.
£5m for digital innovation, it could have been more. The MoJ has spent a billion on the digitisation of the courts, but yes, very positive.
The media reported that the spending commitments in the review total £8m, but with the scope changes you’re probably looking at the top end of £10/20m. Due to the underspends in the legal aid budget which LAG has continually highlighted, I’d argue the MoJ can afford this.
Above all, I think what’s happened with the review and especially with the strategy document is there has been a change of tone. However, we want more than just fiddling around the edges of scope and a few pilot studies.
On to the negatives, then
One of the main reasons why people get involved in legal aid work is that we get angry, we get angry about injustice.
In this context, I must mention Windrush. It would have cost a few million pounds to extend legal aid to people caught-up in this fiasco. It is a running sore of injustice and needs to be addressed. A small adjustment to the scope of legal aid would have done so and I’d urge the government to get on and do it.
Turning to the spending review. While there are rumours that the spending review might be put back due to Brexit, my understanding is that the chancellor of the exchequer wants to press ahead with a 12-month timetable; this means it will not coincide with the pilots the MoJ want to run.
I’m also hearing the criminal fees review could be put back to 2021. Again, completely out of kilter with the spending review. And I don't believe the bar will accept this delay. They have power. They can refuse to take returns, which means striking. As the Secret Barrister book has exposed, the criminal justice system is at breaking point. It’s unlikely, therefore, that the issue of criminal fees can effectively be shelved for two years or longer.
This leads me to an important point I want to make about the legal aid budget. Since court-based legal aid was incorporated into the main legal aid fund under the Labour government, the Treasury has treated both civil and criminal legal aid as one budget. In recent history, the Treasury’s message to the MoJ has been very clear: ‘You have to control legal aid expenditure within this envelope.’
My fear is a settlement on criminal fees – perhaps forced by a barristers’ strike – will lead to a raid on civil legal aid to fund it. This has happened in the past and is the reason why LAG argued in the Magee review
(which happened at the tail end of the Labour administration) that the funds need to be separated as with a (rightly) demand-led criminal legal aid system there is always the risk that civil legal aid will lose out.
This dilemma takes us back to where LASPO started. It seems to be forgotten, but Ken Clarke did his best to try to get sentencing reform through. He got defeated by the Michael Howards of this world and so we ended up with LASPO, which was primarily about cutting civil legal aid.
Looking to the future
Family was the biggest LASPO-imposed cut. Sad person that I am, I’ve read the review and strategy documents inside out. There are some lovely turns of phrase in it, including this:
The aim to promote the use of mediation, instead of adversarial and unnecessary litigation, does not appear to have been met. It certainly has not been met with regard to publicly funded mediation services.
I really hope the civil servant is here who wrote that. Sir Humphrey is alive and well in this report because, of course, this is a fantastic understatement. You look at the graph in the report and mediation just didn’t work in the way that the government wanted it to.
I believe there was a sincere desire on behalf of ministers at the time to take family matters out of the courts and try to get alternative dispute resolution (ADR) to work. It was a miserable failure and the MoJ has got to revisit it. If you can get early advice back into the system around family issues, this will lead to a better take-up in mediation.
That said, though, I don’t believe we can turn the clock back and put all of private law family back into scope. This would unlikely to be signed off by the Treasury and to an extent could compromise the adoption of ADR.
In the strategy document, there are seeds of a vision particularly for civil legal aid. And I can’t emphasise enough, the pilot around early advice is crucial to this, as is the co-location work which the academic Hazel Genn is undertaking.
One of the main problems with legal aid is the negative media discourse around it. Much of the coverage reinforces the message that legal aid is about others, it’s about prisoners, it’s about criminals, it’s about people that commit the most horrendous crimes. It’s also about what some sections of media label wrongly as undeserving people such as asylum-seekers. It’s not about the general population, it’s not about their access to justice and their rights.
Legal aid should be open-door, certainly for the early advice stage. We need to go back to where we were with Rushcliffe. Rushcliffe was a Conservative peer and architect of the system. He recognised it should not just be about the poor, it should be about people on low and moderate incomes, 80 per cent of the population. We should reinvent legal aid, so every citizen at least has the right to get early advice when they need it.
LASPO led to legal aid being based on a value judgement which prioritises equality before the law, with a few caveats, if a person is accused of a crime, but if you lose your job, are forced to claim benefits, or are in danger of losing your home due to poverty, you have none as LASPO took this away. Legal aid must be a solution for people’s everyday legal problems, or we risk a breakdown in the rule of law.