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.

The Bach Report: (17) Law centres and the law centres network

This is the fifteenth in the new series of blogs which will start with relevant extracts from the Bach Commission’s Final Report. These will be followed by the more detailed treatment I gave to the topic in one of the chapters in Appendix 5 to the Report.

I wrote the papers in this Appendix because I was keen not to lose the opportunity to provide in-depth treatment of important issues for which there would clearly be no room in the report itself.

The Report did not concern itself with a detailed examination of issues relevant to law centres alone. Instead, these extracts from the report paint a picture of the surviving law centres, like other advisory bodies, doing their best to provide a vital service despite the withdrawal of much of the central government and local authority financial support they used to receive.

Chapter 15 of Appendix 5 fills out this picture.

1.EXTRACT FROM THE REPORT

(1) At the same time as legal aid for problems involving benefits has been withdrawn, the need for it has risen: the Law Centres Network told the commission that major social security reforms and an increasingly punitive approach from DWP have led to a sharp rise in inaccurate decisions and benefit sanctions. While law centres and similar agencies have tried to maintain dedicated pro bono projects to meet the need for help, demand is on a scale that cannot – and should not – be met by reliance on unfunded support alone. There is also a real risk that the skills of advisers and practitioners in this complex area will be completely lost.

(2) In addition to the administrative problems, the publicly funded sector of the profession is also facing a crisis. The squeeze in public funding has led to advice agencies and law centres closing and legal aid lawyers leaving the profession. There is significant uncertainty about the future sustainability of legal support in many areas, with potentially devastating consequences for the public’s ability to exercise their right to access justice.[1]

(3) Advice deserts are emerging where there are no advice centres, law centres or legal aid practices offering legally aided advice. The Law Society has shown that housing law, in particular, has suffered:

Almost one third of legal aid areas have just one – and in some cases – zero firms who provide housing advice which is available through legal aid.”[2]

Alongside the decreasing provision of legal aid by law firms, non-profit agencies have been hit hard too, with many closing their doors altogether. The original Birmingham Law Centre, the Immigration Advisory Service and Streetwise are just some examples of charities that have collapsed.[3]

None of this would be so significant if the level of need for legal support had fallen. But there is no evidence that this has happened. While there is evidence of increased pro bono activity at all levels of the profession, the leading pro bono charities are clear that unfunded legal support cannot, and should not be expected to replace publicly funded provision or the state’s duty to ensure access to justice for all.[4] The reduction in the capacity of providers has instead meant that fewer people are able to resolve their problems. And this state of affairs is unlikely to reverse quickly as it is affecting the career choices of young lawyers who can no longer risk dedicating their careers to areas of law heavily funded by legal aid.[5]

We recommend that the government commissions 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.

(4) Most people who experience a legal problem are unlikely to recognise it as such. Even those that do may not know where to turn to: advice centres, law centres, legal aid practices, helplines and online portals are no use where people don’t know to visit them. Advice should therefore be easily accessible, clearly signposted, and situated in places where those most in need are likely to find it. It should also always be universally available; no-one should have to face a financial assessment in order to access basic advice about their legal rights, or to discover whether or not the problem they face is legal in character….

In person advice

In addition to online and telephone services, there are a number of organisations that provide advice in physical locations within communities. These include Citizens Advice, whose offices are situated around the UK, and law centres and legal advice practices, which have been closing at an alarming rate in recent years. Ministry of Justice research shows that the number of all not-for-profit legal advice centres fell from around 3,226 in 2005 to 1,462 by 2015. And, as we wrote in our interim report:

“More than half of the 700 who responded to the Ministry of Justice survey reported that they had client groups who they were unable to help due to lack of resources, expertise, or because they fell outside the centre’s remit.” [6]

These centres, along with other advice organisations, provide a vital service – from free information through to expert advice and representation funded by legal aid. In the context of today’s low levels of legal capability the commission is concerned by the loss of a physical place which members of the public can visit for free, initial support. For those people who do not use the internet or telephone helplines to solve their legal problems, these serve as vital signposting sites.

But returning to the pre-2012 system, when advice centres, law centres and legal aid practices provided expert support funded by legal aid, is not by itself the answer. Lindsey Poole told the commission that the target-based approach of the Legal Aid Agency, when it was responsible for issuing contracts to providers, “changed the way that [advice services] viewed services”. The questions providers would ask themselves, Lindsey Poole told us, turned from

“Does it meet the need? Does it meet our charitable objective in helping the most vulnerable to access social justice?”

to

“Have we had enough clients at this time in order to meet the contract that we had?”

Such an approach would also likely lead to too little support being given for small, specialist organisations delivering advice to niche communities.

To tackle this, the commission agrees that a shift is needed in the way that advice is delivered at the local level. As numerous providers are already doing, advice centres, law centres and legal aid practices must take their expertise out to their communities rather than just waiting for people to come to them. One way that this has been done successfully is through the provision of advice in GPs’ surgeries. As Lindsey Poole told us, services should be redesigned to “take advice to health care settings, to the courts (including criminal) and to local non-advice voluntary organisations.”[7]

But sometimes this will not be enough. In communities which have little trust in authorities or the rule of law, there is a need for mediating figures who have the trust of both the legal profession and the community in question. In her evidence to the commission, Lisa Wintersteiger spoke of “trusted intermediaries”. These could be teachers, faith leaders or leaders of migrant groups. Advice organisations regularly work with them to deliver advice to hard to reach communities, who may have a problem understanding or trusting authorities.

The first report of the Low Commission discusses the example of Advice Services Coventry, which was a partnership – supported by local government – between the independent advice agencies in Coventry to coordinate the delivery of advice services in the city.[8] The network shared a website and a referral system, so clients could be directed to the most appropriate resource. Additionally, Coventry Law Centre set up several partnerships with non-advice voluntary organisations, such as the city’s ‘Troubled Families’ scheme and local Community Based Champions, to deliver advice to people in the settings where they are likely to require it.

The Low Commission called for the creation of a £100m fund, with half the funding coming from government (to be administered by the Big Lottery Fund), and half from a combination of other local and national statutory, commercial and voluntary providers.[9] We echo this call, and support the introduction of 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.

 

2. APPENDIX 5 TO THE REPORT

CHAPTER 15: Law Centres and the Law Centres Network

The number of law centres and their location

In 1970 there were two law centres. Their number grew to 34 in 1980 and to 62 in 1991. They went down to 54 in 2001, and up again to 63 in 2005. They tended to be established – and to survive – in areas where Labour-controlled local authorities provided generous funding support.

Between 2007 and 2011 their numbers dropped to 54, largely because law centres with inadequate reserves went under when the new civil legal aid contracts provided for payment to be made in arrears. By 2014, following the introduction of LASPO, the numbers fell again, this time to 45, when those who had survived since 2007 by drawing on their reserves were unable to withstand the steep fall in income when so many fields of work – particularly in the social welfare field – were taken out of scope.

Many other law centres have had to reduce the services they can provide, and they can now help fewer people. On average, law centres lost 40% of their income between 2010 and 2015 (including a cut of over 60% in their legal aid revenue as a direct result of LASPO). Only one in three people now obtain the help and assistance they need.[10]

Since 2013-4, however, the numbers have held more or less steady, despite the additional pressures caused by the local authority spending cuts. The purpose of this paper is to describe what is going on within the law centre movement today.

Geographically the 43 surviving law centres are very unevenly spread. There are only four in the North-East[11] and five in the North-West[12] (where the recent establishment of the Merseyside and Greater Manchester Law Centres is to some extent compensating for the closure three years ago of the Trafford, South Manchester and Wythenshawe Law Centres, and others before that). In the Midlands there are four.[13] In the West, there are also four.[14] In the South-East (including East Anglia) there are two outside London.[15] In contrast, there are 21 in Greater London.[16] There are two in Northern Ireland.

Every law centre now has to explain what it is doing. At long last they are all using the same logo.

Some advice agencies, including ISCRE in Ipswich, are preparing to become law centres. LCN insists that they must have two lawyers and there must be quality control.

The bulk of the service must be free. And they must be independent – not tied, for instance, to a trade union.

Developments (2013-2017)

Developments over the last four years have included the following:

  • In 2013-4 the Government ceased all its funding support for LCN. 16 major trusts now fund LCN’s activities.
  • LCN commissioned advice on the way in which law centres might charge for some services in order to achieve long-term sustainability. About six are now charging some clients.[17] Others started, but ten stopped because they were not generating enough funds to cover the cost.
  • Now that many local authorities have cut back their funding for advice services, LCN has provided funding consultants to support law centres in writing bids or funding support, either locally or regionally. UK fundraising support helped to raise £2.8 million for law centres and their partners in 2015-6.
  • LCN obtained a €400,000 grant from the European Commission for the Living Rights project (which involves 5 law centres and 5 partners).[18] Currently 12 law centres are engaged in EU-funded projects, alongside 7 partner agencies.
  • LCN has encouraged law centres to take on new projects, new partners and new ways of working.[19] It also advises law centres when large funders, such as the Big Lottery, change their funding strategies.
  • LCN has helped policy-makers, commissioners and funders to recognise the power of the law as a tool for positive change.
  • In 2013 LCN was awarded the national Upper Tribunal legal aid welfare benefits contract. This is now managed by the Harrow and Central England Law Centres, and 8 law centres across the country are involved.
  • 5 London law centres are taking part in new pro bono clinics which are targeted on specific topics [20]
  • The LCN has negotiated the provision of LexisNexis [LN] online resources for all law centres, and a 35% discount for law centres on LN printed materials. It has also set up a national professional indemnity policy for law centres.
  • A national upgrade of law centres’ ICT infrastructure is now in progress.[21]
  • In 2015-6 LCN provided 23 low-fee training sessions for law centres which covered topics like fundraising; legal aid contract management; law updates (e.g. housing or community care law). It has also launched an online learning hub, a themed resource which is updated regularly.;
  • LCN has updated the Law Centres Quality Manual, so as to ensure that law centres continue to adhere to Lexcel 6 requirements.[22]

Thriving law centres are using different models.

Different developments in the use of technology

The LCN is upgrading IT systems nationally with support from Legal Education Foundation and generous in-kind support from Freshfields and others. Nine so far, and it is now helping another 15.

The Hackney Law Centre is developing a very simple system, to remind people of their appointment and of the papers they need to bring with them. This will be done by text message because most people have mobile phones even if they do not use the internet. It is receiving pro bono help from Freshfields. Once ready, it will be rolled out nationally.

Another digital application being developed with assistance from CAST with Big Lottery funding. This is designed to help with First Tier welfare benefit appeals, to assist legal advisors who have no welfare benefits expertise. An automatic document generation system is being developed with assistance from Lexis Nexis and other a national CMS is also underway.

On the LCN website are listed the different advice resources that are available on the Internet.

Citizens Advice do not do this. They have invested resource into a particular way of giving advice. They need to add: “If this doesn’t help, try ….”

Citizens Advice and Shelter have access to great resources. They can provide better matching in search names.

New partnerships and other working methods

Legal advice is slotted into broader community work.

In Coventry a specialist legal adviser, based at the law centre, worked directly with clients of the local authority’s Troubled Families scheme who needed legal advice. It also collaborated with a local charity on a Youth Migrant project.

Southwark has established a good division of labour with the Southwark CAB. Southwark also supports a day centre for asylum seekers at which they will be able to supply advice to those who ask for it.

At Coventry, they have a protocol to identify the point at which people should be signposted towards the law centre. They have developed software which can be used by any advice centre in Coventry. The client’s case is added, and through a triage system all the details are fed into the system. The local authority has funded someone to monitor the service. He/she sees that a case will be taken on by a lawyer within 24 hours, and the lawyer who receives the reference then has to account for what has happened. Other agencies can then see what has happened.

They are using a similar model in Avon and Bristol.

In Greater Manchester [GM] the GM Immigration Service worked with other agencies to create the new GM Law Centre. They received some money from a community trust. A number of co-producers developed the new law centre. They now have a Justice Fellow as a trainee. The GM Law Centre is a solid model.

Law Centres have developed a number of new service models over recent years aimed at using the law as a tool for change, co-produced with other local agencies, with pro-bono assistance, with law students, in different settings, aimed at early intervention and with the client at the heart of what they do.

 

[1] The Law Society. (2016) The Future of Legal Services. Accessed September 2017: http://www.lawsociety.org.uk/news/stories/future-of-legal-services/

[2] The Law Society. End Legal Aid Deserts. Accessed September 2017: http://www.lawsociety.org.uk/policy-campaigns/campaigns/access-to-justice/end-legal-aid-deserts/

[3] Chambers Student. (2013) Legal Aid Cuts and Reforms. Accessed September 2017: http://www.chambersstudent.co.uk/where-to-start/newsletter/legal-aid-cuts-and-reforms

[4] LawWorks. (2016) LawWorks clinics network report April 2015-March 2016. Accessed September 2017: https://www.lawworks.org.uk/sites/default/files/LawWorks%20Clinics%20Network%20Report%202015-16.pdf

[5] “… it is a tragedy that able and capable barristers are leaving publicly funded areas of work, or leaving the Bar entirely, because they cannot afford to practise or because they see no future there”. Daniel Sternberg. (2016) Reflection on the future of the Young Bar, Counsel Magazine. Accessed September 2017: https://www.counselmagazine.co.uk/articles/reflections-the-future-of-the-young-bar

 

[6]The Bach Commission. (2016) The crisis in the justice system in England and Wales. Accessed September 2017: http://www.fabians.org.uk/wp-content/uploads/2016/11/Access-to-Justice_final_web.pdf

[7] See the evidence of the Advice Services Alliance in appendix 4 at p. 86

[8] Low Commission. (2014) Tackling the Advice Deficit, p. 59. Accessed September 2017: http://www.lowcommission.org.uk/dyn/1389221772932/Low-Commission-Report-FINAL-VERSION.pdf

[9] Low Commission. (2014) Tackling the Advice Deficit. Accessed September 2017: http://www.lowcommission.org.uk/dyn/1389221772932/Low-Commission-Report-FINAL-VERSION.pdf

[10] The Avon & Bristol Law Centre has said: “Demand is high and resources are low, so now we only take the people who are the most destitute – those who face the most barriers. Ethically it is incredibly difficult for staff to think that a person hasn’t quite reached rock bottom, so that we have to turn him away.”

[11] Newcastle-upon-Tyne, Bradford, Sheffield and Kirklees.

[12] Cumbria, Bury, Rochdale, Merseyside and Greater Manchester.

[13] Nottingham, Derbyshire, Central England and Derby. Central England is an amalgam of Coventry and the new Birmingham Law Centre. In Derby the abrupt cut of £200,000 in local authority funding last year led to the closure of the former Derby Citizens Advice and Law Centre, but a new Derby Law Centre has now been established.

[14] Avon & Bristol, Gloucestershire, Wiltshire and the Isle of Wight.

[15] Luton and Surrey. A new Suffolk Law Centre is being established at Ipswich.

[16] Brent Community; Bromley-by-Bow; Camden Community; Cambridge House; Central London; Ealing; Hackney Community; Hammersmith & Fulham; Haringey; Harrow; Hillingdon; Islington; Lambeth; North Kensington; Paddington; Plumstead Community; Southwark; South West London Law Centres; Springfield; Tower Hamlets; Vauxhall. South West London Law Centres run free legal advice clinics in Croydon, Kingston, Merton, Wandsworth and Wimbledon.

[17] For example, LCN helped Avon & Bristol, Gloucestershire and Wiltshire Law Centres to set up a regional community interest company [CIC] which will extend their services throughout south-west England, beyond the areas they already cover.

[18] This project targets help at people with a limited knowledge of English.

[19] For example, the Islington Law Centre were involved with partner agencies in the Safe Passage Project, helping children in the jungle camp in Calais who have relatives in the UK.

[20] For example, retrieving withheld rental deposits; releasing unpaid wages; challenging benefit sanctions; assisting residents from Commonwealth countries to obtain British nationality.

[21] It will recommend a preferred Client Management System for law centres, which will make their data collection easier to collect and disseminate. LCN has also developed a data analysis pilot project for London.

[22] Law centres must now comply with 7 different regulatory frameworks.