Legal aid news - October 2017

Welcome to our update of the latest legal aid and access to justice news from September and October 2017.

The Right to Justice: on 22 September, the Bach Commission on Access to Justice published its final report, The Right to Justice. The report calls for a new Right to Justice Act which will codify existing rights and establish a new right for individuals to receive reasonable legal assistance without costs they cannot afford. The report also recommends reform of the financial eligibility and scope rules for legal aid in order to create a simpler, more generous system which will enable many more people to access publicly funded legal help.

You can read YLAL’s initial response to the report here. YLAL co-chairs Oliver Carter and Katherine Barnes said: "YLAL welcomes The Right to Justice and believes this report by the Bach Commission represents a vital contribution to the public debate about access to justice and legal aid. We believe it could form the blueprint for access to justice policy for decades to come." Ollie wrote for openDemocracy about The Right to Justice, and you can support the campaign for access to justice by emailing your MP about the report – we have prepared a template email you can send to your MP.

The publication of the report was widely reported, including by The Guardian, The Mirror, The Independent, the Law Society Gazette, The Justice Gap, Legal Cheek and Legal Voice. Labour’s Shadow Lord Chancellor, Richard Burgon, also welcomed the report as the beginning of the fightback against legal aid deserts. Burgon told a fringe event at the Labour conference that the Bach Commission report will form a key part of the party’s next manifesto.

Sir Henry Brooke, the vice-chair of the Bach Commission, has blogged extensively on its work, including real-life ‘stories of injustice’ (volume one and volume two), as well as writing for the Law Society Gazette about his view that justice is too precious for political football. Sir Henry will be attending our next event in London, on Wednesday 8 November at Hodge Jones & Allen, to discuss the report.

LASPO review: on 5 September, the Lord Chancellor David Lidington was asked about the timetable for the long-awaited review of the cuts made in the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO), which the government promised would be completed within five years of LASPO coming into force (i.e. by April 2018). Hansard records Lidington’s answer as follows: “I would hope to able to give Parliament details in the relatively near future. I am conscious that this work has been promised. We have not yet been able to make an announcement, but the hon. Lady will appreciate that matters such as a general election and a change of Ministers have intervened. I want to press ahead with this as soon as possible.”

When he took questions from the Justice Select Committee on 25 October, the Lord Chancellor said that the government’s review of LASPO will be published in the “very near future” but stressed that he had to “have in mind the budget is not unlimited”. On 30 October, the review of LASPO was finally announced by the Ministry of Justice, in a post-legislative memorandum presented to the Justice Select Committee. It is to be completed by summer 2018.

In an interview with Buzzfeed, the chair of the Justice Select Committee, Conservative MP Bob Neill, said that “budget pressures” and an “unwillingness to listen to professionals” meant changes to legal aid were rushed through Parliament and went too far. He said that he believes cuts to legal aid may have been a false economy because the rise in litigants in person means that judges have to spend time helping litigants through a case. He said “the amount of judge time all that involves may potentially outweigh in large measure the savings.”

This was echoed by Mr Justice Bodey, in a speech to mark his retirement reported by the Guardian, who warned the government of the “shaming impact” of legal aid cuts. Whilst sitting in the family court, Mr Justice Bodey explained how he sometimes had to help litigants in person by cross-examining witnesses on their behalf. As well as the financial impact of the cuts to legal aid, Neill explained that that the rise in litigants in person is infringing people’s rights. He commented “if you've got a right in law, to enforce it you've got to have the ability to present your case in an articulate fashion. Not everybody is able to do that. And that shouldn't be simply on an ability to pay. So I think there's a social justice argument about it.”

Meanwhile, ahead of the review of LASPO a stakeholder group including the Law Centres Network, Legal Action Group, the Bar Council and many others submitted a joint evidence memorandum to the Justice Select Committee. The memo identifies the shortcomings of LASPO and argues that: the system needs to be more client focused, less bureaucratic and better designed to meet the needs of vulnerable and low income people; questions of scope should be determined on a more rational, fairer basis; supporting the rule of law and equality of access to the legal system should be an underpinning principle; and policy decisions should be taken on the basis of evidence.

Early Day Motion on cuts to legal aid: Several MPs have tabled an Early Day Motion raising concerns about the effect that LASPO has had on the most disadvantaged members of society. The EDM has been signed by almost 100 MPs, including from Labour, the Conservatives, the Liberal Democrats and the Greens. 

Criminal legal aid: On 24 October 2017, the Ministry of Justice announced plans to cut the fees paid to criminal defence solicitors. The announcement comes just 5 days after the Office for National Statistics published figures showing that crime has increased considerably. Under the plans, payments will be slashed for paper-heavy crown court cases. The rationale is that more pages of evidence are now being served by the Crown Prosecution Service (CPS), and that average costs per case are increasing.

In the Law Society’s press release, its president Joe Egan said “More pages of evidence are being served by the CPS because cases are now more complicated. Terror cases, fraud cases and serious historic sex cases require a large amount of work, for which solicitors should be paid… These cuts are a quick-fix, money-saving solution. They are untenable, highly counter-productive and short-sighted.” A petition has been set up to oppose this further cut, which you can sign here, and The Secret Barrister provided an excellent Twitter thread on why this cut matters.

Legal aid providers: the answer to a written question in Parliament revealed that the number of legal aid providers in England & Wales has fallen by 20% in the last five years, from 2,991 to 2,393, as reported by The Mirror, The Guardian and Legal Voice. The Law Society’s head of justice, Richard Miller, said: “Behind these figures are hundreds of thousands of people who can no longer obtain legal aid for matters such as family break up, a range of housing problems, and challenges to welfare benefits assessments. This data also calls attention to the fact that increasingly it is no longer economically viable for solicitors to do this work.”

Working in legal aid: 74% of respondents to a Legal Cheek poll on Twitter said that public funding cuts have put them off pursuing a career in legal aid. Legal Cheek published a series of articles about careers in legal aid, with the Secret Barrister urging students not to be deterred from publicly funded work, Katie King reflecting on her experience of pursuing a career as a legal aid lawyer, and YLAL committee member Ollie Persey issuing a rallying cry for students to join the fight against legal aid cuts. Katya Moran also blogged for Women in Justice about her life as a freelance criminal lawyer.

Our recent article for Proof magazine about access to the profession and our latest research on social mobility and diversity in the legal aid sector was also published by The Justice Gap in September. It includes a sneak peek of the statistics informing our updated social mobility report, which is due to be published shortly – watch this space!

Employment tribunal fees: following the Supreme Court’s ruling that the employment tribunal fees introduced by the Coalition government in 2013 were unlawful, the government has announced a scheme for repayment of fees. The first stage of the phased implementation scheme was launched on 20 October 2017. According to the Ministry of Justice’s press release around 1,000 claimants affected will be contacted and invited to apply for a refund. This opening phase will last for around four weeks and the scheme will be rolled out fully “in the coming weeks.” As well as being refunded their original fee, successful applicants will also be paid interest of 0.5% calculated from the date of the original payment until the refund date.

Young legal aid life: our ongoing series of ‘day in the life’ articles for Legal Voice continued with brilliant pieces by YLAL vice-chair Siobhan Taylor-Ward in September and committee member Tara Mulcair in October. You can also read about the Justice First Fellowship experiences of Alex Temple at Just for Kids Law and Harriet Dudbridge at the Bar Pro Bono Unit and St John’s Chambers in Bristol.

Legal aid for inquests: The Guardian reported in September on a then-unpublished report into deaths in custody, ordered by Theresa May in 2015 when she was Home Secretary, which recommends that families of people who have died in police custody should receive “free, non means-tested” legal advice from the start of the process through to an inquest. The Angiolini review was published on 30 October 2017, as reported by the Law Society Gazette and The Guardian.

Domestic violence: Estelle du Boulay, the director of Rights of Women, explained why the cuts to legal aid left victims of domestic violence stranded in abusive relationships in this article for The Justice Gap. Gloria De Piero, the shadow justice minister, also told the Guardian that victims of domestic violence are still being denied access to justice 8 months after the government promised to make it easier for them to obtain legal aid by scrapping the requirement to produce evidence that they have been abused within the last five years. In a letter to David Lidington, she stressed that “every month the government drags its feet on implementing these reforms, victims of domestic violence are being denied access to justice in matters as important as securing the safety of themselves and their children” and asked him to urgently implement the reforms.

Lady Hale sworn in as President of the Supreme Court: on 2 October 2017, Lady Hale, a former family lawyer and academic, became the first female President of the Supreme Court. Lady Hale was educated at a grammar school and is the first lawyer in her family and has publicly criticised the impact of legal aid cuts on vulnerable people.

Other news: in our column for the September issue of Legal Action magazine, we focussed on the proposals for fixed recoverable costs for judicial review by Lord Justice Jackson – we welcomed the proposals, concluding that judicial review cannot perform its vital function if the system is prohibitively expensive. Legal Voice reported on recent research by The Children’s Society, which found that legal aid cuts are leaving thousands of lone migrant children at “serious risk”.

You can read about the Proof magazine roundtable discussion on legal aid, featuring the Shadow Lord Chancellor and Justice Secretary Richard Burgon, over at The Justice Gap. To order your copy of the legal aid issue of Proof, Life in the Justice Gap: Why legal aid matters, click here. And finally, former YLAL co-chair Rachel Francis wrote for The Independent about the troubling case of Samim Bigzad and a prima facie contempt of court by the Home Secretary, Amber Rudd.