REPORT ON APG MEETING, 8 JULY 2015
The new Parliament may be about to rise for the summer but there has been just time enough for the first meeting of the All-Party Group (APG) on Legal Aid, which has been newly constituted with the former Director of Public Prosecutions Keir Starmer QC elected, unopposed, as chair.
With the formalities out of the way, the APG heard from Alison Pickup of Doughty Street Chambers and Paul Bowen QC of Brick Court Chambers, who have both been involved in a number of the significant judicial review challenges which have sought to reshape the post-LASPO landscape(1).
Having set out the background and effect of LASPO, attendees were given the experts’ review of some of the key cases in Strasbourg and Luxembourg case law on when it may be a breach of either the European Convention on Human Rights or the EU Charter of Fundamental Rights not to provide legal aid funding. The speakers then turned to the recent and frequently successful judicial review challenges to LASPO. Attendees heard about the ousting of the Residence Test, the illegality of the Lord Chancellor’s guidance for decision-making in relation to Exceptional Case Funding for inquests and certain immigration cases, and the irrationality of the “no permission, no payment” regulations in legally aided judicial review. Given their success, the obvious question was why these legal challenges had not culminated in a more visceral political response. The new chair, Keir Starmer QC, addressed the issue head on. He emphasised that while “there is a political point to be made [about the evident failings in the legal aid system]”, there was a danger that “we get sucked into focusing only on legal footholds”. Summarising, he explained: “we need to bring the law and politics together.”
But how is this to be done? The meeting was attended by a number of community-orientated organisations, including the Citizens Advice Bureau and Law Centres UK. The mutually shared concern was that the advice infrastructure built up over the last three decades at a local level is crumbling. That position, one attendee noted, was all the more acute because of cuts to local government, which have impeded their ability to provide funding and erased any chance to off-set the cuts in central government spending.
Adding to this bleak picture, Alison Pickup reminded us that while litigants in person are a visual demonstration of the effect of restricting access to justice, “there is an invisible problem of people who are entitled to challenge an unlawful decision but don’t because they can’t face court”.
Taking a different view, Starmer suggested that it is important to see this fight as one which must be fought on the government’s own terms. He reminded attendees that the cuts are not just to legal aid but to justice: for example, the impact of the increase in fees that is being felt in the employment tribunals and civil courts. He pointed to the fact that many of these changes are costing more money, not saving it.
In view of this, Starmer explained that he has set up a group to conduct an analysis of the true financial impact of the cuts to spending on justice, building on the work of the National Audit Office and the Justice Committee. The group will be calling for evidence on issues such as the knock-on costs to the courts service due to increased numbers of litigants in person or the impact of advice deserts, i.e. the fact that some areas are being left without any local advice provision at all. Ultimately, the aim will be to evidence that the numbers do not add up and that spending on ensuring access to justice is an investment which saves the state money in the long-term.
Drawing the meeting to a close, Starmer said: “Injustice is what drives people to unrest, more than poverty, and that is where we will end up”. Modern-day Greece may serve as a timely reminder of that. Whether the story of this APG will be of triumph or tragedy remains to be seen.
(1)The Legal Aid, Sentencing and Punishment of Offenders Act 2012 came into force on 1 April 2013 and removed large areas of law from eligibility for legally aided advice, assistance and representation