A turning point for access to justice?

YLAL co-chair Oliver Carter has written for The Justice Gap about the government's review of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO), which brought in huge cuts to legal aid.

You can read the full article here, and we have copied part of it below:

At the time of passing LASPO, the Government promised to review the impact of the cuts to legal aid within five years. Almost six years later – LASPO took effect in April 2013 – the Ministry of Justice has published its Post-Implementation Review of Part 1 of LASPO, alongside a separate review of legal aid for inquestsand a Legal Support Action Plan setting out the Government’s ‘vision of a modern system of legal support’ and the steps it will take following the review of LASPO.

The review assesses LASPO against its four original objectives: making significant savings; discouraging unnecessary litigation; targeting legal aid at those who need it most; and delivering better value for money. It concludes that LASPO has been ‘partially successful’ in meeting these objectives.

Clearly, significant savings have been made to the cost of the legal aid scheme, although justice campaigners would argue that greater knock-on costs have been generated for other parts of the state. It is ‘impossible to say’ if LASPO achieved the objectives of discouraging unnecessary litigation or targeting legal aid at those who need it most, and ‘more evidence needs to be considered to assess the extent to which value for money in this broad sense has been achieved’.

At best, then, the jury is out as to whether LASPO has succeeded even on its own limited terms. And it is fair to say the objectives are not those which would have been chosen for LASPO by legal aid lawyers. We might have wanted something about improving access to justice. After all, do we target education or healthcare only ‘at those who need it most’? And if not, why should we ration justice?

More promisingly, the review identifies ‘wider themes’ which emerged through engagement by the Ministry of Justice with over 100 interested parties, including YLAL, legal aid firms, charities and representative bodies. The six broad themes ‘delivered strongly’ by those engaged with in the review were: the removal of areas of civil and family law from the scope of legal aid; that people who need legal aid cannot access it; the Exceptional Case Funding scheme is not working; fees for legal aid work are inadequate; there has been a rise in unrepresented litigants; and ‘advice deserts’ have developed in certain geographical areas.

The Legal Support Action Plan ‘outlines the changes the Government intends to make and the future direction for legal aid and support’, and does contain some specific, positive reforms which will materially improve access to justice. It also includes some rather less tangible commitments to ‘review’, ‘pilot’ and ‘consult’ on further changes, which the chair of the Justice Select Committee, Bob Neill MP, said ‘risk being seen as kicking the can down the road’.

In the former category, the decision to reintroduce access to face-to-face advice in debt, discrimination and special educational needs – previously only accessible via a mandatory telephone gateway – is a very important change. Similarly, extending the scope of legal aid for family law to include special guardianship orders and providing non-means tested funding for parents opposing applications for placement or adoption orders will be welcomed.

In the latter category, the Government will ‘bring forward proposals to pilot and evaluate the expansion of legal aid to cover early advice in a specific area of social welfare law’ by autumn 2019 and there is to be a ‘comprehensive review’ of legal aid eligibility (i.e. means testing) by summer 2020. The criminal legal aid fee schemes and structures will also be subject to a ‘comprehensive review’ by summer 2020.

...

Whether the review of LASPO marks a turning point for legal aid and an opportunity for the Government to start to repair the damage done to the justice system in recent years, as YLAL hoped for in our initial statement following publication of the review, may depend to a significant extent on the outcomes of the review of means testing and the pilot of early advice in social welfare law.

The role of legal aid lawyers is often to stand up for the underdog against the might of the state, a callous employer or a rogue landlord. In the campaign for access to justice and legal aid, we are the underdog, and we will continue to stand up for ourselves, our clients and the communities we serve.