As we await the government’s formal review of the 2012 act, everyone from the TUC to the NAO to Liberty agrees it has had a devastating impact, says Richard Miller
The government recently announced the long-promised post-implementation review of LASPO.
There has been a lot of confusion about the process the government will follow. As the first step, by May 2017, the Ministry of Justice will issue a post-legislative memorandum to the Justice Select Committee. This document will provide a factual summary of the legislation and its implementation. According to justice minister Sir Oliver Heald: ‘What we envisage is that the memorandum and review will provide us with a robust evidence-based picture of the current legal aid landscape and how it has changed since LASPO.’
The memorandum will be followed by a post-implementation review, which is due to report by April 2018. Heald has confirmed that the MoJ will engage with stakeholders in conducting this review, in what he described as a ‘collaborative consultation’.
Over the past few years, there has been no shortage of reports flagging many ways in which the consequences of LASPO have proved to be as bad as its critics predicted at the time of its passage through parliament. In its evidence to the Bach Commission, the Law Society highlighted many such problems. The society observed how some of the high level principles underpinning the government’s approach had proved flawed. The market and the not-for-profit sector did not find ways to fill the gaps left by the withdrawal of legal aid, as the coalition government asserted would happen. Focusing legal aid on the most serious cases has meant withdrawing the vital early help that can stop problems turning into serious cases. Taking vast areas of law out of the scope of legal aid has led to an explosion in the number of litigants in person, and the courts are struggling to cope.
It is not just the usual suspects who have been alleging that there are serious problems with LASPO. In November 2014, the National Audit Office published a report into LASPO. It was still rather early for the problems to be clearly evidenced, but the NAO nonetheless identified significant concerns. The NAO observed that, while LASPO was of course saving money in the legal aid budget, it was already showing signs of creating additional costs both elsewhere within the MoJ and to other departments. The NAO was critical of the fact that the MoJ did not have a good understanding of how people’s behaviour would alter as a result of its changes, and therefore had failed to estimate the scale of those wider costs. The report further identified that the MoJ did not know whether those who should be eligible for legal aid were actually able to get it; and that the ministry neither understood nor was monitoring the impact of fee cuts on the market. The NAO concluded that the MoJ ‘did not think through the impact of the changes on the wider system early enough’, and that it ‘needs to improve its understanding of the impact of the reforms on the ability of providers to meet demand for services’.
The cross-party Justice Select Committee has also expressed significant concerns about LASPO. Its report issued on 4th March 2015 said that the ‘faulty implementation of the legal aid changes [in LASPO] has harmed access to justice for some litigants’. The MoJ had ‘failed in three of its four objectives for LASPO’, in that it had not discouraged unnecessary litigation, it had failed to target legal aid at those who need it most, and it had failed to deliver better overall value for money.
In October 2016, Amnesty released a report called Cuts That Hurt. In it, Amnesty described access to justice as ‘the bedrock of human rights protection’. It highlighted numerous ways in which the poor and disadvantaged are harmed by the impacts of LASPO. It described the Exceptional Funding Scheme as ‘an inadequate safety net’. The lack of legal aid in the family courts, it argues, has hindered full consideration of a child’s interests as required by the UN Convention on the Rights of the Child. It concluded that the ‘abrupt removal’ of legal aid has ‘had a significant impact on the fabric of the justice system’.
This was swiftly followed in November by a report from the TUC entitled ‘Justice Denied’. The TUC surveyed staff working in the justice sector, interviewed representatives from various organisations with knowledge of the impacts of LASPO, and submitted a series of Freedom of Information requests to the MoJ to get a broad picture of the consequences of the act. Among their key findings were that the increase in litigants in person as a result of the act has had a detrimental impact on the ability of the courts to deliver justice fairly, effectively and efficiently, and that access to justice has been diminished. The TUC expressed particular concern about the impact on the victims of domestic violence.
Even more significantly, two UN bodies have expressed the view that LASPO puts the UK in breach of international obligations to which it has committed itself. In 2013, the UN Committee responsible for overseeing compliance with the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) examined the UK and reported on its compliance with CEDAW. The Committee expressed concern that the changes to legal aid unduly restricted women’s access to civil legal aid. They were critical of the conditions requiring victims of violence to provide proof of abuse.
They feared that the restrictions on legal aid were pushing some women towards informal arbitration systems, such as faith-based tribunals, which do not always meet the conditions required for compliance with treaty obligations. The report also flagged the risk that the combination of the withdrawal of legal aid for employment advice and the introduction of employment tribunal fees was preventing women from adequate resolution of job-related disputes, including those arising from pregnancy and other forms of discrimination.
In 2016, the UNCRC published its Concluding Observations on the fifth periodic report on the UK. In those observations, the committee states that ‘the reforms concerning the reduction in legal aid…appear to have a negative impact on the right of children to be heard in judicial and administrative proceedings affecting them’. It recommended that the UK should expedite the review of the reforms.
Heald has plenty of material to work with. Both those at the heart of the system and external independent observers have highlighted a broad range of concerns about the impact of LASPO. Later this year, the Law Society will be publishing its own report highlighting some of the key practical impacts that LASPO has had, and setting out a series of recommendations for the MoJ to consider in its review. LASPO is not working for the taxpayer, for the government, for people who need to protect and enforce their rights, or for those working within the system. This review gives the government an opportunity to correct, or at least mitigate, one of the coalition government’s bad mistakes.
- The evidence is clear: LASPO isn’t working - 8th March 2017
- ‘Constantly battling isn’t healthy for lawyers, government or clients’ - 20th September 2016
- What to expect from the new criminal legal aid contracts - 23rd June 2016
- Law Society: ‘key to market sustainability is consolidation’ - 14th August 2013
- The world hasn’t ended, it’s just changed - 24th May 2012