The LASPO Review: (1) My recent talk about the Bach Commission’s report on the Right to Justice

HB to Parliament 011117

Now that the Government has announced its review of the LASPO Act, and has published what it calls a Post-Legislative Memorandum ,  I am starting a new series of blogs which will give my insights into the way the review is developing, and I will draw attention to important documents in the public domain.

I will start with the text of the address I gave at the start of a two-hour event in Parliament two days ago.  Although the purpose of the event was to give Parliamentarians a chance to listen to the experts on the Bach Commission and to ask about our findings, the fact that the event was organised by the Fabian Society seems to have frightened off any Conservative MPs or peers who might otherwise have been interested.  This was a pity.

Despite this, there was a fairly full Committee room, and plenty to talk about.

My address in Committee Room 9 in the Houses of Parliament on 1st November 2017

Our report was published six weeks ago, It should be required reading for anyone who is concerned with responding to the Government’s new review of the LASPO Act.

I have been asked to tell you a bit about the Commission and its aims, and I will also summarise our main recommendations. There will then be plenty of time for comments and questions. I believe very strongly that if enough people study the report carefully – and also take the trouble to read a few of the papers we have published with it – it could mark a turning-point of the same importance as the original Legal Aid and Advice Act in 1949.

When we first met, Willy Bach told us that he thought that both major parties had made mistakes when they were in Government. It was against this background that he wanted us to produce a very thorough, evidence-based report describing in detail how things stood today and what we thought ought to be done to put the show back on the road again, ideally with cross-party support.

Although the Labour Party sponsored this report, we were selected for our independence and expertise, and I would have behaved in the same way, within reason, whoever had asked me to do this job. Somebody had to do it. My great hope is that somehow or other we can eventually return to an all-party consensus about legal aid. Justice is too precious to be a party-political football – although I realise that this may be too much to hope for, at any rate in the short term.

We started with seven sessions of oral evidence – from the Law Society, from the Bar Council, from Lord Low and Steve Hynes on behalf of the Low Commission, from two technology experts Richard Susskind and Roger Smith, from the Society of Labour Lawyers, and from the two leading groups of solicitors practising criminal law. I have set out the gist of all this evidence in Appendix One to the Report.

Then we asked for Written Evidence, and we received a torrent of very high quality material. I spent a lot of time last year making this more accessible to Commissioners and the Fabian Society, and this is what the next two Appendices are all about. We published our Interim Report a year ago.

We had four more all-day hearings this year. One to tease out some of the issues that form Part One of the Final Report, two on different specialist aspects of the legal aid scene, and the last one on public legal education and advice services. Appendix Four gives the gist of this evidence.

And we then spent three months accelerating towards the finish. The Fabians did a wonderful job putting our thoughts together in intelligible English.

As you will know, the Report falls into two parts. In the first we say that in the light of what has happened in the last 20 years, justice needs better protection, and we propose a new Right to Justice Act. This will create an enforceable entitlement to justice, within reason, at an affordable cost. We also propose a new Justice Commission, ideally headed by a senior judicial figure, to make sure that the new Act isn’t simply a dead letter. This is very high-level thinking, and there will be a lot of work needed to tease out the detail. When David Pannick rubbished this recommendation while praising the rest of our work, he cannot have had time to read the report property. This is not just about access to the courts which are at the top of a pyramid. Most people never go near a court, and for millions of people a right of access to basic information about our legal system and the places where they can get basic legal help is the compelling need.

In Part Two we put forward a 25-point plan in which we identify what we think should be the priority areas for reform, if the money is there. I will mention some of them in a moment, but they include an overhaul of the rules for financial eligibility, turning the Legal Aid Agency back into an independent statutory body, restoring a lot of the provision for early legal help which was axed four years ago, proper support for public legal education and advice services, and a very few areas where we think the right to publicly funded legal representation in court should be restored. The development of online information is of critical importance, but so is face-to-face advice for those who need it.

Appendix Five contains my analysis of some of the detailed evidence on key issues. This is a “must-read” for anyone involved in the current debate about legal aid. It makes very painful reading. I have published 18 excerpts on my blogsite to give people a feel of what is there.

Appendix Six contains a brief history of the first 70 years of Legal Aid which I wrote last year, and Appendix Seven is a paper by the Fabians on the cost implications of our proposals and the savings they can be expected to achieve.

This paper tells us that in today’s prices LASPO was originally budgeted to make annual savings between £400 and £450 million, and that in fact they have made savings of about £950 million – a £0.5 billion annual underspend. In last Monday’s Government memorandum this figure is accepted and its breakdown is shown on page 52. The Fabians think our ideas are likely to cost about £400 million, We know that for every pound we spend on early legal help we are likely to achieve savings of at least two pounds, and probably a lot more, further down the line because we will not be waiting, as we are now, for expensive disasters to happen before any public legal funding is available to try and avert them. The Government accepts the principle that savings would be made and that they should be taken into account, but it says on page 58 that it is too difficult to make any computation of all the benefits, so they do not try.

I will say something more now about what we described as 25 “urgent policy changes”. The first ten are concerned with changing the eligibility and contribution rules. Some of them will have to be looked at, anyhow, because of what the Supreme Court has said in the Unison case. We wanted to get rid of a lot of expensive and time-wasting form-filling, and to make the rules as simple as possible. Here are three of our ideas:

 

  1. The government should introduce a much simpler and more generous scheme for legal aid. Everyone who receives a means-tested benefit should be automatically eligible without further assessment.
  2. 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.
  3. The evidence requirements should be simplified and relaxed, to prevent people from being forced to abandon their applications for legal aid, as they do now.

Then here are five of our ideas about widening the scope of legal aid:

  1. Legal aid should be restored for early legal help (not representation) to pre-LASPO levels for all social welfare law and family law cases;
  2. All matters concerning legal support for children should be brought back into scope;
  3. Legal representation in court should be restored for six particularly worrying categories of private law family cases;
  4. Legal representation should be available at inquests where the state is funding other parties. Intrusive inquiries into the means of the deceased’s family should be stopped;
  5. The exceptional case funding scheme needs urgent review and reform.

 

We had these ideas about the administration of legal aid:

  1. The Legal Aid Agency should be scrapped and replaced by an independent public body, with a broad-based group of directors;
  2. Legal aid providers should not be plagued by so many different audits – one would be sufficient;
  3. People should not be forced to use the telephone to access some types of legal aid;
  4. The government should commission an independent review into the long term viability of legal aid practice. Legal aid practitioners are now ageing and are not being adequately replaced.

And finally we said that positive steps must be taken to boost public legal education, both in schools and for adults; accurate online information should be easily accessible and sign-posted; and the Low Commission’s recommendations for a ring-fenced fund for advice providers at local level should be implemented.

There is nothing revolutionary in any of this. We will all be happy to answer questions. I hope that the quality of our work will attract more and more public trust, and that it will be regarded as an essential foundation for all the interesting discussions about the best way forward that are just getting under way.

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