APPG on Legal Aid – 27.02.19
LASPO Post-Implementation Review and Future Legal Aid Policy
In the Equality Impact Assessment accompanying the LASPO Bill, the Ministry of Justice set out its objectives for the proposed legislation as:
- discouraging unnecessary and adversarial litigation at public expense;
- targeting legal aid to those who need it most;
- making significant savings in the cost of the scheme; and
- delivering better overall value for money for the taxpayer.[1]
Just under 7 years later, the five speakers gathered to discuss the recent and long-awaited review of these objectives and LASPO as a whole, at the APPG on Legal Aid.
Speaker 1: Lucy Frazer QC MP – Parliamentary Under-Secretary of State at the Ministry of Justice
Purpose and conclusions of the LASPO Review
The purpose of the LASPO review was to hear views from across a wide range of services and have a broad discussion about the success of LASPO. Over 100 organisations were engaged with during the review in order to determine how they interacted with Legal Aid (LA) services, and to assess the needs and effects of the current LA system. The report concluded that LASPO was partially successful in achieving its original goals.
The report highlights some key areas in which LA has been reinstated, such as in family law, and it was noted that further a review into the current means-test is ongoing, with the government committed to continuing this.
Future Focus
The strategy put forward in the review set out a vision for LA in the future, which would focus on supporting people early on (‘early intervention’), and seeking alternative and more cost-effective ways to provide legal support. Lucy Frazer QC MP emphasised the distinction between LA itself, and early intervention. With the former, Frazer acknowledged that access to legal rights and representation is essential, and noted that the government spent £1.6 billion on legal advice last year. The latter, which is intended to be a key focus in the future, will be enhanced through technological means so as to reduce LA funding in litigation. This would be monitored and evaluated to build evidence-based policy- making in the future, which is sustainable in the long-term.
Frazer was keen to stress the view that it is not sustainable to simply put back the money which has been cut out of the service. Frazer stated that this should include a consideration of whether the status quo (i.e. traditional face-to-face meetings) is the most efficient means of giving legal advice and advocated holistic legal support, involving working with other areas to create the most effective strategies.
In the review, the Government has committed to spending £5 million on an ‘innovation fund’ which will work on developing alternative ways of giving legal support, for example by using new technology efficiently (Shelter and Citizens Advice were cited as having developed their own effective online systems for giving early advice).
Speaker 2: Richard Burgon MP – Shadow Secretary of State for Justice and Shadow Lord Chancellor
From the outset, Richard Burgon MP was clearly unimpressed by the review, stating it was “too little; too late” and that an opportunity to turn the LA crisis around had been missed. He told the APPG that he would like to have seen a solid commitment from the government, stressing the need for immediate solutions, rather than promises for future reviews.
Funding
Burgon told the APPG that the new measures promise to put back only £8 million into the system, which represents less than 1% of the cuts since 2010. The decision to make those cuts, including how much and from which areas, was a Government decision, not an economic necessity.
That said, Labour also calls for an increase in funding for early legal advice, for two key reasons:
- Cases that can be settled early will not end up in court unnecessarily; and
- This will reduce accompanying social problems.
Burgon requested that the Government commission an independent economist to look into savings that could be made by early advice.
Labour’s Position
Regarding LA, the Labour manifesto itself includes:
- early establishment of advice in family courts;
- reinstatement of funding for judicial review cases (citing the John Worboys case as a success here);
- a review of the LA means-test;
- restoration of LA in welfare benefits cases; and
- provision of early LA in immigration cases (including for EU citizens)
Burgon concluded by stating that people are facing tough times through no fault of their own, and should not be punished for this by not being provided their basic rights. The upcoming 70th Anniversary of LA should be used as an opportunity to fight for every citizens’ right to fair access to justice.
Speaker 3: Bob Neill MP – Chair of the Justice Committee
In his speech, Bob Neill MP recognised both the achievements and failings of the review. He said that it should be noted the review was thoughtful and substantial at over 100 pages long, but was a ‘long-time coming’. It was disappointing that after this amount of time since the cuts were first implemented, the review merely indicates the need for further reviews once more evidence is gathered.
Neill welcomed the extra funding, where given, and agreed that funding needs to be economically sustainable and affordable. He went on, however, to identify other areas where swift action was needed. These key areas of concern included:
- the need to promote areas where LA is in fact available (so people are aware of this availability);
- the lack of capacity in the Ministry of Justice itself;
- existence of ‘Legal Aid deserts’ (noting that it can be a struggle to receive LA funding even in some suburbs of London (he referenced his own borough of Bromley and Chislehurst, where he works closely with his local Citizens Advice to supplement the necessary support);
- the growing number of litigants in person in the courts; and
- urgent need for a review of criminal LA.
Neill underlined that some advice needs to be face-to-face and provided by a qualified lawyer, for example in giving honest, if sometimes unwelcome, news to a client to prevent wasted litigation proceedings being commenced. This cannot always be replicated in other ways and as such Neill is keen, ‘if a little wary’, to see what the Government means by ‘alternatives’ to early legal advice support. It must be ensured that legal advice of a proper quality is maintained.
Neill concluded that access to justice, the ability to defend oneself, should be a basic social service, just as health and education is. The cost is small overall in public expenditure, but the benefits are huge and far-reaching. It is our duty to continue to make the public case for access to justice, which is critical to a functioning and civil society.
Speaker 4: Richard Atkins QC – Chair of The Bar Council
Richard Atkins QC started by clarifying that the Bar Council is not a political body, but rather interested in areas affecting justice.
The Bar Council held their own review of LASPO five years after its implementation and came to the conclusion that only one of the four main objectives stated above had been achieved – that of making significant savings
in the cost of the scheme. However, the cost savings have come at a high price: the justice system has been waterlogged with inefficiency from a lack of funding, and overwhelmed with litigants in person, particularly in the family courts.
Atkins stated that the current review failed to reverse or address these affects effectively. The Government gives only very vague promises, for example a proposal to pilot plans to implement early advice in 2019. The LASPO review further suggests another review is to be done in 2020. However, he stressed, we need action now. The hundreds of pages of review give little of substance to ease the reality of those affected.
The Government offers £5 million for technological improvements (e.g. Skype consultations for early access); and a further £3 million to help people navigate the court system. Atkins agreed with Burgon that this is a drop in the ocean given the impact that LASPO has had on affording people access to justice.
Atkins recognised that the Ministry of Justice is, itself, restrained by budget cuts, but stated that priorities must be reassessed, with a redistribution of expenditure to contend with the whole of the criminal and civil justice system. What value is placed on citizens rights if they are not able to receive support at the most vulnerable moments of their lives? Cuts are short-term solutions with long-term consequences, impacting on others key social areas in society, and we must return the system to the high standard it once had.
Speaker 5: David Greene – Deputy Vice-President of The Law Society.
In his speech, David Greene opened by stressing the importance of individuals having access to justice, not only as it is their individual right, but also for the impact this has on the rest of society.
Four years after the LASPO was implemented, the Law Society conducted its own review of the legal aid changes introduced under it. This review concluded that:
1. Legal aid is no longer available for many of those who need it;
2. Those eligible for legal aid find it hard to access it;
3. Wide gaps in provision are not being addressed; and
4. LASPO has had a wider and detrimental impact on the state and society.
Since then, we have seen only greater barriers to justice. Whilst the current review is a first step in the right direction, more needs to be done. The current review puts forward recommendations regarding case funding and early legal advice as well as giving specific commitments, i.e. to provide support for migrant children, implement special guardianship orders, and introduce telephone gateway advice. However, there are other areas that need urgent attention, including the means-test (who it applies to and its threshold), and remuneration for solicitors undertaking LA funded work.
Furthermore, there needs to be put in place strategies for duty solicitors as crucial evidence is not always available until the last moment. This is just one area demonstrating that the justice system is at breaking point, and in urgent need of resources.
Those trapped between being ineligible for LA and actually able to afford privately funded legal support have nowhere to turn. Citizens deserve equal rights to access to justice under the rule of law, an essential component of our unwritten constitution.
To conclude, Greene stated that the review had identified the major failings of LASPO, however not addressed them adequately, nor provided solutions. Instead what is needed is clarity, deadlines, and solid solutions.
Echoing the conclusion of the final speaker David Greene, the overall tone of the debate seemed to be that the review, whilst there were some positive elements, had not gone far enough – both in what was written, and in what it offered (in strategies and funding).
YLAL would like to thank volunteer Olivia Allen for for preparing this report of the APPG meeting.