‘The legal aid cuts have been catastrophic and a review cannot come soon enough’
It will come as no surprise to learn that Young Legal Aid Lawyers (YLAL) welcomes the announcement made by Justice Minister Sir Oliver Heald that a long awaited review of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) will now take place. However, the next stage will be crucial in ensuring that the impact of the controversial legal aid reforms is properly evaluated.
We believe that the provision of good quality publicly funded legal help is essential to protecting the interests of the vulnerable in society and upholding the rule of law. The recent report by the Bach Commission on Access to Justice – The crisis in the justice system in England and Wales – highlights the devastating impact of the legal aid cuts introduced by LASPO. It argued that the cuts to legal aid have created a two-tier justice system in which the poorest go without representation and advice. It is clear that such devastating cuts have undermined access to justice with Lord Bach stating: ‘The narrower scope of legal aid has seriously damaged the ability of the legal system to uphold the principle of equality under the law, and thus the rule of law itself.’
The report calls for a set of minimum standards to be established in law to ensure access to justice is a reality for all, which from YLAL’s viewpoint, is long overdue.
The damaging effect of LASPO has also been demonstrated by Amnesty and the Trades Union Congress (TUC) with their reports, Cuts That Hurt (here) and Justice Denied (here). Amnesty stated that ‘the cuts to legal aid constitute a retrogressive measure’ and the TUC finding that the ‘LASPO reforms to court services and budget cuts have had a detrimental impact on access to justice, including to those most vulnerable in our society’.
The government had initially suggested a review of the legal aid cuts three to five years after they came into force in April 2013. The Minister for Legal Aid, Oliver Heald, accepted this month that enough time has now passed for the reforms to take effect and a review process to begin. We await further news about the form of the review, which provides all who believe in access to justice with an opportunity to persuade the government to undo some of the damage caused by the cuts to legal aid.
The decisions to be made from the review should not be made lightly; it must involve a collective consideration of those who have been and continue to be affected by LASPO. At a meeting of the All Party Parliamentary Group on Legal Aid in Westminster, Heald stated that the government intends to work ‘closely and collaboratively’ with other interested groups, which will hopefully take into account the input of practising lawyers and charities who work within the legal aid and advice sector too. We at YLAL are keen to work with the government and others to help ensure that the review deals appropriately and robustly with the profound impact of the cuts to legal aid.
We have already set out three practical steps to improve access to justice in our response to the Bach Commission’s call for evidence (here). The first suggestion involves repealing LASPO and bringing the areas of law which were removed from the scope of legal aid back into the scheme. This will return to a presumption that a case which satisfies the means and merits criteria is within the scope of legal aid, except in limited categories which are specifically excluded. We note that the Bach Commission’s interim report does not go as far as we would hope, as it concedes that ‘the solution to these entrenched problems cannot simply be to reverse the LASPO cuts in their entirety and expand the legal aid budget indefinitely.’ However, we at YLAL would still stress the impact of delaying the inevitable; the longer access to justice is restricted will only increase the number of individuals without a voice to prevent injustice.
Alongside repealing the cuts to legal aid, there should also be an increase to the thresholds and simplification of the financial means tests for civil and criminal legal aid. This will ensure that legal aid is not reserved for only the poorest and most vulnerable in society, but rather is available to anyone who is unable to afford to pay for legal advice and representation; this is what was intended when the modern legal aid system was introduced following the Rushcliffe Report in 1945.
Finally, and importantly, YLAL proposes that there should also be an independent and comprehensive review of the impact of court and tribunal fees on access to the courts. We believe the cost of justice should be primarily borne by society as a whole, rather than by people using the courts to defend or protect their rights. Just as we pay tax to support the National Health Service, the education system, social care and other services, so we as a society should ensure that the legal system is accessible to all.
We believe that access to justice is currently severely limited, both in terms of the areas of law for which people can obtain publicly-funded legal advice and representation and in relation to the proportion of people who are financially eligible for such legal help. This is demonstrated by the vast removal of areas of law from scope by LASPO, stringent means testing for eligibility for legal aid, and the increase in litigants in person.
The impact of LASPO has been catastrophic and a review cannot come soon enough. YLAL believes that equal access to justice for all, irrespective of wealth, should be the absolute core and fundamental principle of our legal aid system. We welcome the government’s decision to review of the impact of the cuts to legal aid and hope this review is conducted with an open mind and a willingness to admit mistakes.
If you value access to justice and the rule of law, we urge that you join us in campaigning for a sustainable, effective and fair system of legal aid which ensures that no one is denied justice because of their inability to pay. YLAL invites you to build on the momentum of the Bach report by emailing your MP to call on them to commit to supporting legal aid and access to justice. We have prepared a draft text which can be found at our website here.
Author: Sinead Hayes
Sinead Hayes is a solicitor at Irwin Mitchell specialising in medical negligence and committee member of Young Legal Aid Lawyers