YLAL has submitted its response to the Ministry of Justice Post-Implementation Review of Part 1 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012.
YLAL's submission concludes by setting out our analysis of the impact of LASPO in comparison to the stated aims of the legislation, within which our key proposals for reform are summarised.
Discouraging unnecessary and adversarial litigation at public expense
The first of LASPO’s stated aims was to reduce the number of “unnecessary” cases funded at public expense. Whilst it is the case that significantly less publicly funded litigation has been conducted since the implementation of LASPO, this decrease has not occurred simply because people are not bringing unnecessary cases post-LASPO. The Ministerial Foreword to the government response to the consultation asserted that “legal aid too often encourages people to bring their problems before courts, even when they are not the right place to provide good solutions, and sometimes for litigation that people paying from their own pocket would not have pursued.“ YLAL does not agree that this is the case, nor are we aware of any research which supports this assertion.
The Bach Commission report states that legal aid provision is now skewed towards the use of the courts system, regardless of the fact that it would be cheaper to resolve disputes at an earlier stage. Restrictions to scope mean that, rather than dealing with issues as soon as they arise, individuals must wait until they reach crisis point in order to obtain legal advice and representation. For example, early legal advice for a welfare benefits matter may prevent an individual from incurring rent arrears, leading to other debt issues, potentially going so far as to become repossession proceedings.
YLAL would like to draw the MoJ’s attention to our recommendations that (1) the scope of the areas of law which may be funded under the legal aid system should be widened and (2) that early legal advice should be reintroduced to ensure that issues may be solved prior to a court hearing becoming necessary. YLAL believes that, in principle, legal aid should be available for all areas of law which relate to individual rights. However, in the event that the MoJ does not accept that this is possible in the short-term, we propose that the key areas of law which should be brought back into the scope of legal aid are those in relation to family, welfare benefits, employment and housing law.
Targeting legal aid to those who need it most
This aim is two-fold and the impact of the objective has been seen through reforms to both the means test for determining financial eligibility, and the scope of areas in which legal aid is available. For example, removing private family law from scope unless the person is a victim of domestic violence and/or abuse.
In terms of the means test, this objective was intended to ensure that those who could pay their own legal fees do so. However, as set out in the means test and financial eligibility section of this submission, this has not been the case. Due to a combination of issues - some inherent to the means test as provided for in LASPO, and others which have become more concerning over time - the current means test is not fit for purpose. It neither succeeds at ensuring that those who are not able to afford private lawyers are able to access publicly funded legal advice, nor does it involve a reasonable calculation of a person’s means. For example, the monthly disposable income limit is currently not index-linked and therefore these limits have not increased in line with inflation.
YLAL has set out a series of recommendations for revolutionising the current means test to ensure that it is fit for purpose. These recommendations include removing the cap on housing costs which can be disregarded, providing an allowance which can be deducted for utility bills, food costs and the repayment of debts, allowing the Legal Aid Agency some discretion in the assessment of the applicant’s means, which could be exercised where reasonable to do so, and the removal of the ‘innocence tax’ which means that privately paying defendants who successfully defend against the state’s attempt to prosecute them are only able to reclaim the fees they have paid at legal aid rates.
Making substantial savings to the cost of the scheme
The government estimated that the measures implemented by LASPO would deliver a saving of £350 million by 2014/15. Legal aid spending is now £950 million less than it was in 2010. On the face of it, LASPO has succeeded in achieving the government’s objective of making substantial savings to the cost of the scheme. However, the knock-on effect of these savings is that there has been such a detrimental impact upon access to justice that having achieved the objective should not be viewed as a positive.
The savings to the MoJ’s budget have been substantial, but this has also resulted in increased costs elsewhere, across other government departments, other services and sectors.. This assertion has been supported by reports from various organisations and committees, including the National Audit Office, Citizens Advice, the House of Commons Justice Committee, the Low Commission and the All Party Parliamentary Group on Pro Bono. The various research and reports compiled by these organisations have demonstrated the costs-shifting and knock-on costs impact on a variety of other public services including General Practitioners, MP surgeries and the NHS.
Putting aside the false economy of the cuts to the legal aid budget, on a fundamental level, the reductions in the legal aid budget have had a corresponding reduction in access to justice. LASPO has effectively created a two-tier justice system where outcomes depend more on the wealth of the individual than justice and the rule of law.
Delivering better value for money to the taxpayer
One example of the way in which LASPO attempted to provide better value for money was through the telephone gateway service, which was set up to deal with matters relating to debt, discrimination and special educational needs. This has not only reduced the quality of the advice and service being provided, but has also not provided value for money. For example, the comparison of the costs of gateway advice with face-to-face advice, shows the former is 170% more expensive than debt advice provided by the not-for-profit sector.
Whilst it is undeniable that some of these aims – for example, making financial savings – have been achieved, YLAL believes that the overall impact of LASPO upon the justice system and access to justice in England and Wales has been hugely detrimental and urges the government to take urgent steps to repair our justice system before it is too late.
All of the issues we have identified in this submission both feed into the crisis facing access to justice and cause huge obstacles in access to the profession for aspiring and junior legal aid lawyers.
We are grateful to the MoJ for considering our submission.
We look forward to working with the MoJ to improve access to justice and to ensure that future generations of legal aid lawyers are able to fulfil their vital public service.
Young Legal Aid Lawyers
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