In this blog I am reproducing the Foreword, the Executive Summary, and the List of Recommendations contained in the Report on Access to Justice, published today by the Fabian Society.
The Report was written by the Commission chaired by Lord Bach, and I was privileged to act as its Vice-Chair. It is a thoughtful document, backed by very interesting appendices, and i hope it may lead to cross-party consensus on the way forward. Justice is too precious to be used as a political football.
I will be using this blogsite to reproduce different features of the report. I start with the headlines.
FOREWORD BY LORD BACH
We live at a time when the rule of law is under attack. Too many powerful institutions pay lip service to the concept of access to justice without having sufficient regard for what it actually means. It is, after all, fairly simple: unless everybody can get some access to the legal system at the time in their lives when they need it, trust in our institutions and in the rule of law breaks down. When that happens, society breaks down.
The work for this report began in the autumn of 2015, after Jeremy Corbyn was elected as leader of the Labour party. I approached him with a proposal for a review into Legal Aid and he welcomed the idea and asked me to chair it. Working with the Fabian Society, I then assembled an impressive and expert team of commissioners. In the first year of our work, we heard and received evidence from a wide range of witnesses, before producing an interim report which gained considerable interest. The report introduced our main proposal, that there should be a statutory right to justice. This important and innovative policy is now set out in detail in this, our final report.
During the first half of 2017, the commission heard more evidence that has considerably influenced our thinking. There is an urgent need to bring some areas of civil law back into the scope of legal aid, but more importantly we need to refocus on early legal help in order to help prevent problems developing further down the track. There are also huge administrative problems with the operation of legal aid, and levels of public legal capability are dangerously low.
The supreme court has recently and authoritatively restated our existing rights to justice, and the importance they hold. But the crisis in our justice system shows that the rights we have now are insufficient. We believe that a new statute is needed to codify our existing entitlements, and to establish a new right to reasonable legal assistance that people can afford. That is why we call for a new Right to Justice Act, which we believe should be monitored and enforced by a new, independent commission. We hope that this new act will help lift the provision of justice above the political fray.
I end with warm thanks to my fellow commissioners, special advisors and all the witnesses who gave up so much of their time to this enterprise. In addition, I want to thank Lord Falconer, Richard Burgon MP, Christina Rees MP, and Karl Turner MP. Above all, none of this would have been possible without three special people: Sir Henry Brooke, whose hard work and wisdom are an inspiration; and Olivia Bailey and Tobias Phibbs from the Fabian Society, without whose support this report would have never been published.
Willy Bach Chair of the Bach Commission
This is the final report of the Bach Commission. The commission was established at the end of 2015 to find solutions that will restore access to justice as a fundamental public entitlement. Over the course of the nearly two years the commission has been in existence, we have heard from well over 100 individuals and organisations with special expertise in all parts of the justice system.
The commission has found that the justice system is in crisis. Most immediately, people are being denied access to justice because the scope of legal aid has been dramatically reduced and eligibility requirements made excessively stringent. But problems extend very widely through the justice system, from insufficient public legal education and a shrinking information and advice sector to unwieldy and creaking bureaucratic systems and uncertainty about the future viability of legal aid practitioners.
The commission has concluded that the problems in the justice system are so widespread and varied that there is a need for a new legally enforceable right to justice, as part of a new Right to Justice Act. This act will:
- Codify our existing rights to justice and establish a new right for individuals to receive reasonable legal assistance without costs they cannot afford
- Establish a set of principles to guide interpretation of this new right covering the full spectrum of legal support, from information and advice through to legal representation
- Establish a new body called the Justice Commission to monitor and enforce this new right
The purpose of the Right to Justice Act is to create a new legal framework that will, over time, transform access to justice. But early government action is also required. In part two of this report we set out an action plan for government so that it can take the first steps required to make the right to justice a reality.
- Legal aid eligibility rules must be reformed, so that the people currently unable either to access legal aid or to pay for private legal help can exercise their right to justice. This includes establishing a simpler and more generous assessment scheme for civil legal aid; ensuring all benefit recipients automatically qualify for legal aid; and, making the contributions to legal aid more affordable
- The scope of civil legal aid, which has been radically reduced, must be reviewed and extended. The priority should be to bring early legal help back into the scope of legal aid – across a broad range of legal issues – in order to encourage early dispute resolution and prevent further distress and cost downstream. All matters concerning children should be brought back into the scope of legal aid. With respect to representation in court, some areas of family and immigration law should also be brought back into scope.
- The operation of the legal aid system needs reform. The legal aid system is creaking at the seams, and practice as a legal aid lawyer is becoming increasingly unsustainable. An independent body that operates the legal aid system at arm’s length from government should replace the Legal Aid Agency and action must be taken to address the administrative burdens that plague both the public and providers
- Public legal capability must be improved. At present, most people’s ability to understand a legal problem or to know where to turn for information and support is poor. We call for a national public legal education and advice strategy that improves the provision of information, education and advice in schools and in the community
When the government first introduced LASPO it estimated it would save £450m a year in today’s prices. In the last year, it actually saved £950m. These initial reforms can be delivered, annually, for less than this government underspend of £500m.
FULL LIST OF RECOMMENDATIONS
PART ONE: The Right to Justice Act
The primary recommendation of this report is for a new Right to Justice Act. This will codify and supplement our existing rights and establish a new right for individuals to receive reasonable legal assistance, without costs they cannot afford. It will also establish a new, independent body to promote, develop and enforce that right.
The Right to Justice Act would establish:
- A new individual right to reasonable legal assistance, without costs individuals cannot afford
- The basis for this new right to be enforceable through the courts
- A set of guiding principles to sit behind the new right, including the importance of early legal help, public legal education, and the smooth operation of the system
- A new, independent body called the Justice Commission, whose function is to advise on, monitor and enforce the right to justice.
The responsibilities and powers of the Justice Commission should include the requirement/power to:
- Prepare statutory guidance with respect to the implementation of the right to justice
- Monitor compliance with the new right to justice, issuing regular reports and recommendations to parliament
- Challenge perceived infringements of the right to justice in the courts
- Intervene in, and assist with, court proceedings that will enforce and define the right to justice in practice
PART TWO: URGENT POLICY CHANGES
In order to comply with the Right to Justice Act, the government will need to progressively adopt a range of policies. In part two we set out an action plan for government so that it can take the first steps to making the right to justice a reality.
Reform of the legal aid assessment
- The government should introduce a significantly simpler and more generous scheme for legal aid. The means tests should be based on a simple assessment of gross household income, following an adjustment for family size, with the eventual aim of significantly increasing the number of households eligible for legal aid. As an interim measure these more universal criteria could apply to early legal help.
- Everyone who receives a means-tested benefit should be automatically eligible for legal aid, without further assessment. The roll-out of universal credit provides an opportunity to introduce this reform.
- The government should scrap separate capital assessments for legal aid and adopt the same capital provisions as for means-tested benefits. In particular, owner-occupied housing should be exempt from the capital assessment for legal aid.
- If the government chooses to retain the existing means-test for civil legal aid, it should be made more generous and consistent with other means-tests. The ‘disposable income’ the government assumes is available to pay for legal expenses should exclude the basic living costs of the first adult in a household and council tax payments. The maximum amount that can be set aside for employment-related costs and for rent should also be increased, on the basis of evidence of reasonable costs.
- In order to allow flexibility and realise the right to justice, the government should extend the discretion to disregard capital and/or income as part of the means test where it is reasonable to do so.
Reform of legal aid contributions
- We want to see many more people qualify for legal aid, including people who are in a position to pay part of their legal costs. Legal aid contributions should therefore continue but be reformed, with rules on user payments adjusted to reflect our proposals for a more generous calculation of disposable income and capital so that contribution requirements are no longer an unaffordable barrier to justice.
- Existing capital contributions are particularly punitive, so the more generous capital thresholds and exemptions used for means-tested benefits should be applied to ensure consistency; and people should only have to pay a percentage of capital over these limits, rather than having to contribute 100 per cent of their savings.
- The government should consider how to simplify and clarify the means-testing process in criminal courts, and review the level of contributions made. This should focus on reducing the number of litigants in person; and ensuring that the level of monthly contributions is affordable and significantly below the costs of the case.
Reform of legal aid means-test and other evidence requirements
- The evidence requirements for applications for civil and criminal legal aid should be simplified and relaxed, in order to prevent people being forced to abandon their legal aid applications.
- There should be further liberalising reforms to the domestic violence gateway, and solicitors, legal advisers approved under a legal aid contract, and frontline domestic violence support organisations should be able to confirm that an individual is a victim of domestic violence.
A wider scope for legal aid
- We recommend that the government restores legal aid for early legal help (support prior to representation in courts and tribunals)to pre-LASPO levels for all social welfare law (which includes debt, employment, welfare benefits, immigration and housing), for family law, and for prisoners in appropriate cases.
- Children: All matters concerning legal support for children should be brought back into the scope of civil legal aid.
- Family: Family law cases with the following characteristics should brought back into the scope of civil legal aid, with respect to representation in court: a) representation in particularly sensitive areas of private family law (such as cases in which the primary care of a child is in dispute) b) cases involving an application to remove a child from the jurisdiction c) cases where there is local authority involvement in private law children proceedings d) cases in which an allegation is made which is so serious it would be unjust not to provide legal representation to defend it e) cases where the question of whether a child should have any contact with a parent or grandparent is in dispute f) cases where a court determines expertise is necessary to decide a family case in the best interests of the child, but where the non-legally aided party is not in a position to pay a contribution towards that expertise.
- Immigration: There should be a full investigation into which areas of immigration law should be within the scope of legal aid funded representation. This should be conducted with recognition of the importance of translation services, and should include reviewing the fees that clients in immigration cases are charged. In the short term, cases involving stateless persons and cases involving family reunion in which vulnerability is involved should be brought back into scope.
- Inquests: Where the state is funding one or more of the other parties at an inquest, it should also provide legal aid for representation of the family of the deceased.
- Judicial review: Judicial review cases have formally remained within the scope of legal aid, but new regulations have dissuaded providers from issuing proceedings. These regulations, which limit the remuneration of legal aid providers for judicial review cases, should be repealed.
Reform of exceptional case funding
- The exceptional case funding scheme has manifestly failed, and needs urgent review and reform.
The replacement of the Legal Aid Agency
- The Legal Aid Agency should be replaced by an independent body that operates the legal aid system at arm’s length from government.
Reduce administrative burdens for providers
- Immediate action should be taken to fix the Legal Aid Agency’s client and cost management system. This should be done by working with a group of users to identify, develop and implement solutions so that it is fit for purpose.
- There should be a new legal aid composite audit, in place of today’s numerous, overlapping and burdensome assessments, which should be conducted with a short notice period.
Reduce administrative burdens for the public
- The mandatory requirement for mortgage debt, special educational needs and discrimination law to be accessed via the civil legal aid gateway telephone service should be removed, and face-to-face help should be available for those who need it. Additionally, the service should be better resourced with legally trained staff.
Action to ensure the continued viability of the legal aid profession
- The government should commission an independent review of the state of the legal aid profession and its continued viability. This review should focus on the impact any decline in size or quality has on the ability of the public to access justice, and consider the effects of the decision to cut the bursary scheme for aspiring legal aid lawyers.
Better public legal education in schools
- There should be a new responsibility on Ofsted to assess in greater depth how well schools prepare children for the opportunities, responsibilities and experiences of later life. Government should also better support and facilitate the development of relationships between schools and organisations who are working to improve legal capability.
Universally accessible advice
- The government should support the introduction and maintenance of a centrally branded and easily navigable portal for online information and advice. The government should share the details of this central portal in communications about other matters such as health and education.
- The government should create a new, ring-fenced fund for advice providers who are able to evidence the effectiveness of their approach to delivering advice to people within their communities.
 To avoid confusion, we use early legal help in reference to all legal assistance other than representation in all matters – even though this work is technically referred to as ‘legal advice’ in prison matters.