LASPO: An entirely predictable catastrophe

We all knew LASPO would be devastating. Whether the government’s review into its impact is willing to admit the damage caused is another matter, says Chris Minnoch

Sir Oliver Heald QC MP announced what many in the legal aid sector have been pushing for since the advent of the Legal Aid, Sentencing and Punishment of Offenders Act in April 2013 – a review into its impact. But as soon as the announcement was made, the Ministry of Justice raised more questions than answers. The biggest questions for LAPG and our members are: what will be the scope of the review?; and, who will be involved and to what extent?

The minister partially answered these questions at a joint meeting of the All Party Parliamentary Groups on Legal Aid, Pro Bono and Public Legal Education. He was generous with his time and fielded a host of questions from an extremely knowledgeable audience. He noted that, while the review will be an internal process, the MOJ will collaborate with all the expected parties. On scope, the minister indicated that the issue of impact will be mainly limited to impact on the justice system, but that other issues might be considered. More detail will be provided when the MOJ tables its post-legislative memorandum to the Justice Select Committee in May.

But for many in the sector, the concern will be that the government’s review of the impact of LASPO will be as ineffective as the pre-LASPO consultation and equality impact assessment because we know that the impact has been nothing short of catastrophic. And no government, of any political persuasion, is ever going to admit that a major reform programme has been a disaster. What’s worse is that most of the impact has not been recorded, so is it capable of being properly analysed?

Lawyers and advisers see the impact every draining day. They see the forlorn faces of the last 20 people in the queue turned away from a drop-in session. They see faces fall as they apologise for not being able to help because a perfectly resolvable problem is no longer in scope. They deal with crisis after avoidable crisis, as resources have been stripped away from early advice that can prevent legal issues from escalating. And they have sleepless nights because that client didn’t return after she spent two hours crying about what she was suffering but didn’t have the medical report to prove it. These are the very real human costs of LASPO that lawyers see every day but that no one has the energy to accurately record.

And what about the impact on the structure, fabric and sustainability of the sector? What of the loss of expertise? How has this affected social mobility and the willingness of heavily indebted young lawyers to join? What of the damage to the economic viability of individual providers?

And what about the compounding impact of court and tribunal closures and fee increases and the reduction in local authority funding for advice? LASPO didn’t happen in isolation. It occurred as part of a government-wide austerity programme. LASPO cut deep but it was by no means the only erosion of the justice system and the ability of citizens to enforce their rights and protect their liberties. Take for example the post-LASPO attempts to restrict judicial review.

And what about the ongoing debacle that is the introduction of the online application and billing system for legal aid, CCMS, made mandatory from April 2016? Will the impact of hours and hours of lost time and frustration and delay caused by CCMS be taken into account?

And what of the pressure created on other public services by the withdrawal of legal aid? Will the review properly analyse cost shifting, for example to the court system through a dramatic increase in litigants in person? And it’s not just added cost, but concerns about the quality of justice available to those who cannot access lawyers. Homelessness is on the increase too: will there be an analysis of any link to or causation from LASPO?

What about a realistic assessment of whether other initiatives have the capacity and the skills base to ‘plug the gaps’? Most in the sector believe this simply isn’t possible, despite the enormous effort going into pro bono schemes, technological solutions, non-legal advice support services in courts, and the like.

Many of these issues and wider concerns about the erosion of access to justice have already been considered and reported on by eminent and respected bodies. The Low Commission pushed for a national strategy and a host of other sensible suggestions. Amnesty International found that LASPO has stripped away a vital element of support for a fair and just legal system. The Justice Select Committee found that the MOJ has failed to meet three of their four stated objectives and in meeting the first has harmed access to justice for some litigants. Unite found that the legal aid reforms were a false economy. The Bach Commission has moved into its second stage and has gathered evidence and views from stakeholders across the sector. So a significant body of evidence already exists. The question, therefore, is what evidence will make a difference to future government policy? Because without a commitment from government, and in particular from the Treasury, nothing will improve. But a change in policy will require an admission that LASPO was just plain wrong.

As a membership organisation, we will be canvassing the views of our members and we will be pushing strenuously for a seat at the review table. We are already working behind the scenes to improve the building blocks of the legal aid system – CCMS, scope limits, means assessments, audit processes, the list goes on. We will continue to work with other representative bodies to influence policy, through this review process and by any other available channel. The legal aid system, and its role in the wider justice system, is just too important to do anything else. We urge everyone to participate in the review to try to convince the government of this.

 

 

 

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