On 14 September 2016, instead of holding a regular monthly meeting in London, we decided to attend an event held by the think tank Politeia on 'Legal Aid: Its Role in an Effective Justice System', featuring the former Minister for Legal Aid, Shailesh Vara MP. YLAL member Henry Gaster-Evans attended the talk and kindly provided this report.
Members of the London YLAL group were encouraged to attend an event on the role of Legal Aid in our justice system instead of the regular September meeting. The panel at the event consisted of Shailesh Vara (MP for North West Cambridgeshire and former Minister for Legal Aid), Hugh Barrett (Director, Legal Aid Commissioning and Strategy), and Professor Peter Crisp (Chief Executive and Dean of BPP Law School, where the event was held).
Shailesh Vara spoke first. He began by saying that the excellence of the UK’s legal system comes at a price and that despite recent cuts the UK’s system of legal aid is still more generous than comparable jurisdictions. Mr Vara suggested that there was cross-party consensus on the need for legal aid cuts.
Mr Vara emphasised how expensive divorce proceedings were for the legal aid system and also noted that Judges have training in how to deal with Litigants in Person (LiPs) so increases in the number of LiPs should not be a cause for concern.
Mr Vara argued that the legislation needs to ‘bed in’ fully, but that the government is still committed to a review of LASPO within 3-5 years of implementation.
Finally, Mr Vara made clear his unqualified support for the residence test proposal in its original form. He emphasised that in a context where there is not a ‘bottomless pit’ of money legal aid must be targeted to achieve a balance of fairness to those who need advice, to lawyers, and to taxpayers.
Hugh Barrett’s talk began with an anecdote about Shailesh Vara’s first day as Minister for legal aid at the MoJ: that Mr Vara ‘didn’t know much’ about the MoJ or legal aid, but that he made a good impression by offering his senior civil servants chocolate biscuits.
Mr Barrett then gave a brief history of the development of the legal aid system, from its inception in the 1940s through to its £2.4 billion p.a. zenith in 2004. Mr Barrett also explained that the MoJ is following trial schemes in the Netherlands which are attempting to resolve disputes without lawyers or courtrooms.
He concluded by saying that, although we cannot know the future of legal aid, ‘It is a key element of the justice system, underpinning the values by which our society lives.’
Professor Peter Crisp explained that as a trustee of the Personal Support Unit (PSU) he has a particular interest in the struggles of LiPs. Professor Crisp explained that Judges are trained to deal with occasional LiPs but that the justice system is predicated on laypeople receiving professional assistance. Professor Crisp explained that PSU projections anticipate the number of LiPs to have increased vastly since the 2013 implementation of LASPO.
He argued that this undermines the rule of law, citing (Lord) Tom Bingham’s sixth principle regarding access to justice. Professor Crisp used the example of the 2015 family case of Re D (where parents with serious mental health problems were denied legal aid in child care proceedings) to point to the risk of grave injustices occurring.
There followed a question and answer session. Shailesh Vara argued that we need to see a culture shift from an ‘I’ll see you in court’ mentality to one where people are aware of the financial and emotional costs of legal action.
YLAL co-chair Rachel Francis asked about the reduction in the number of cases funded by way of legal aid pre and post LASPO. Mr Vara first argued that it was impossible to say why there was a reduction in cases brought because he didn’t know the facts of each case. However, he also argued that this was the intention of the legislation: to see a reduction in case numbers.
In response to a question regarding the impact of an increase in LiPs, Mr Barrett referred to a study by the National Audit Office which estimates the costs to the court system at £20 million.
Lord McNally (a former Minister of State for Justice in the coalition government and instrumental in passing LASPO through the House of Lords) then stood to give an impromptu plea from his front row seat. He argued that lawyers ‘bandying about’ access to justice as an argument is ‘quite fraudulent’ and that ‘to govern is to choose’. He argued that the sight of lawyers campaigning outside the MoJ ‘looking like 1970s Trades Unionists’ doesn’t help the profession.
Professor Crisp rejected the suggestion by Lord McNally that this was an issue because it was ‘bad news for lawyers’ and argued that it is ‘bad news for citizens’ and for access to justice.
YLAL is heartened that the government has confirmed its pledge to review the legal aid cuts brought in by LASPO within three to five years of the Act's implementation. As we said in a recent open letter to Theresa May, it is vital that this review fairly and objectively assesses the impact of the cuts to legal aid on access to justice. We object to the statement by Lord McNally that it is "fraudulent" to speak about "access to justice", when it is clear that vast areas of law have been removed from the scope of legal aid and hundreds of thousands fewer civil cases each year are benefitting from public funding. We look forward to contributing to the review of LASPO when it is announced by the government.
Further coverage of the Politeia event and comment on the intervention by Lord McNally can be found on The Law Society Gazette, Solicitors Journal and the Marilyn Stowe blog. A report of the event by YLAL co-chair Ollie is on The Justice Gap.