Labour has today launched an interim report on “the crisis in the justice system in England & Wales”, arguing that cuts to legal aid have created a two tier justice system in which the poorest go without representation and advice. The report, published by the Commission on Access to Justice chaired by Labour peer Lord Bach, calls for a set of minimum standards to be established to ensure access to justice is a reality for all.
Richard Burgon, the Shadow Lord Chancellor and Secretary of State for Justice, said: “Since 2010, the Conservatives have implemented unprecedented cuts to legal aid – putting justice beyond the reach of thousands. A basic threshold for access to justice has the potential to be a historic advance in our law”.
In his foreword to the report, Lord Bach writes that “maintenance of the rule of law depends on the ability of all people to have basic equality of access to the law. If some cannot access justice because it is beyond their means, then the rule of law everywhere suffers.”
Mounting crisis in the justice system
The mounting crisis in the justice system is evident, perhaps most visibly in our overcrowded, underfunded and increasingly unsafe prisons, as a result of the 34 per cent spending cut imposed on the Ministry of Justice from 2010/11 to 2015/16. As the Bach Commission’s report points out, only one other departmental budget – that of the Department for Work and Pensions – has had to bear a deeper cut.
For legal aid, this meant the introduction of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (‘LASPO’), and a £600m reduction in the budget for publicly funded legal advice and representation, from £2.1bn to £1.5bn. In order to achieve this cut, LASPO wholly or partially removed areas of social welfare law such as housing, debt, welfare benefits and family law from the scope of legal aid. Further savings were achieved by cutting the fees paid to legal aid lawyers.
The inevitable and intended effect of LASPO was a huge reduction in the number of social welfare law cases funded by legal aid, from 470,000 cases in 2009/10 to just 53,000 cases in 2013/14. This has resulted in hundreds of thousands, if not millions, of people being denied meaningful access to justice. This is despite evidence, referred to in the Commission’s report, that legal aid can save the state money by preventing social problems, such as debt and insecure employment or housing, from spiralling out of control.
As the Bach Commission notes, LASPO exacerbated a longstanding crisis in legal aid: in 1979, around 80 per cent of households were eligible for civil legal aid, but by 2008 this had fallen to 29 per cent. Legal aid lawyers see the human cost of this injustice every day, in the people we cannot help because they are ineligible for legal aid or because their case is outside the limited scope of LASPO.
Further barriers to access to justice identified by the Commission are the programme of court closures and drastic increases in court and tribunal fees, as well as the halving of the number of not-for-profit legal advice centres since 2005. Since the introduction of fees in the employment tribunal in July 2013, the number of claims – for cases concerning unfair dismissal and discrimination – has fallen by over two-thirds.
Calls for review of legal aid cuts
The government promised to review the legal aid cuts three to five years after they came into force, in April 2013. Together with other justice campaigners, Young Legal Aid Lawyers has called on the Prime Minister, Theresa May, and the Justice Secretary, Liz Truss, to honour this pledge by objectively assessing the impact of the cuts on access to justice at the earliest opportunity.
Amnesty and the Trades Union Congress (TUC) have recently added their voices to the calls for an immediate review of the legal aid cuts with their recent reports, Cuts That Hurt and Justice Denied. The TUC found that “LASPO, reforms to court services and budget cuts have had a detrimental impact on access to justice, including on those most vulnerable in our society”, and Amnesty concluded that “in human rights terms, the cuts to legal aid constitute a retrogressive measure”.
The importance of legal aid was eloquently captured by an immigration and asylum solicitor interviewed by Amnesty, Sarah Sadek of Avon and Bristol Law Centre: “Legal aid gives a voice to the unheard and light to those overlooked. Without legal aid the marginalised are kept in the shadows. They cannot be seen and they cannot be heard.”
How to make access to justice a reality
After documenting the severity of the problems caused by legal aid cuts, the Bach Commission’s report provides an indication of its “direction of travel” in considering how to make access to justice a reality. This is where political reality intrudes, as the Commission 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.”
Instead, the Commission will consider minimum standards for access to justice to be enshrined in law, based on its premise that “the state has a duty to provide a guarantee to all its citizens of access to justice”, just as it has a duty to provide a decent education and health service. It will also consider the decline in financial eligibility for legal aid, the replacement of the Legal Aid Agency (which is part of the Ministry of Justice) with an independent body, and the introduction of an independent inspectorate for the justice system to hold government to account.
At Young Legal Aid Lawyers (YLAL), we have campaigned vociferously against the ruthless cuts to legal aid and unjustified increases in court and tribunal fees made since 2012. We believe that the provision of publicly funded legal help is essential to protecting the vulnerable in society and upholding the rule of law. Research indicates that we are not alone: in a 2015 poll, 84 per cent of people considered access to justice a fundamental right, compared with 82 per cent for healthcare which is free at the point of use.
In our written submission to the Bach Commission, we set out the practical steps which we believe are necessary to ensure that access to justice for all is a reality:
• Repeal the legal aid cuts introduced by LASPO and bring the areas of law removed from the scope of legal aid back into scope;
• Increase the thresholds and simplify the means tests for legal aid, to ensure that it is not reserved for only the poorest and most vulnerable in society; and
• Conduct an independent and comprehensive review of the impact of court and tribunal fees on access to the courts, and recognise that the cost of justice should be primarily borne by society as a whole.
We accept that this would entail a significant funding commitment, but we believe that access to justice is a vital public good that should be classed in the same category as the rights to healthcare and education. 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 report by the Bach Commission as an important first step for Labour in developing a principled policy to improve access to justice. While it does not (yet) go as far as we would like, the report accurately identifies the problems to be addressed and contains a number of positive proposals for doing so. We look forward to engaging further with the Commission as it develops its ideas before publishing its final report next year.
If you value access to justice and the rule of law, we urge you to 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.