All together now
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The Bach Commission now needs cross-party support, writes Jean-Yves Gilg
The access to justice narrative these past few years is one of legal aid cuts, followed by more cuts, hikes in court and tribunal fees, legal advice centres shutting down, and court closures. Government efforts have focused on raw cost management. The only major public project seeking to plug the legal aid gap is the court modernisation programme, which is driven by the judiciary. And even this comes with its limitations and concerns, especially around the risk of digital exclusion.
The Labour-supported Bach Commission is the first initiative in a long time which attempts to take a broad perspective. The genesis of the project inevitably gives it a certain political colour. But hold back these cynical thoughts for a moment and consider what the commission’s interim report, published this morning, is proposing.
Its members include distinguished lawyers such as former court of appeal judge Sir Henry Brooke. This should help assuage fears of overt political bias. In the main, it is taking a realistic, austerity-conscious look at a whole range of options. There is positively no call for a wholesale repeal of LASPO and it acknowledges that the legal aid spend has to be managed.
Having highlighted the main causes for crisis in the justice system, the report goes on to identify five areas for development. It wisely picks up on the digital courts’ potential and it hints at a gateway similar to Rechtwijzer, the Dutch online legal aid portal launched four years ago which is becoming the main reference in this area.
Public legal education is one of the main strands the commission is keen to explore. PLE started getting attention when the first raft of cuts came in. Many law firms include this as part of their social responsibility policy alongside their pro bono commitment. The Law Society has even published a useful booklet on how firms can get involved. It even suggests, if firms needed an incentive, that it can help unlock consumer demand.
Perhaps this points to the main challenge with this approach: as long as lawyers are the only ones pushing PLE, however talented they are, it will continue to have a professional focus. There are several organisations active in this area, such as the Legal Education Foundation, Law for life, and the Citizenship Foundation. There is interest and momentum, but so far there is no evidence positively showing that PLE projects have had noticeable impact. Bringing together the various strands and ensure that legal education is properly part of the school curriculum would be a good start and should be at the top of the commission’s list.
The most ambitious idea however is the setting of minimum standards to be enshrined in law and the appointment of an access to justice inspectorate. Like the chief inspector of prisons, the independent body would hold the government to account in relation to access to justice. This is an attractive idea but its success will depend on the inspector’s powers to enforce these standards. In the current climate, the answer to that question may not be the one we would like to hear.
With government funding for justice projects being channelled primarily into the court modernisation programme, financing for any of these options will clearly be a major challenge. The commission itself is seeking to crowdfund £3,000 by Christmas to complete its work. There are several options that do not rely on taxpayers’ money. One is a levy for an innovation fund that could experiment with technology solutions. Another levy could support a legal aid fund contributing to the costs of court fees. This ‘polluter pays’ approach is already in operation with pro bono costs orders, although it doesn’t appear to have gained as much traction as its promoters expected.
The report only provides a brief insight into a number of possible solutions in an age where legal aid is no longer one of the key pillars of the justice system. Much work is still required to map out how these models could, together, deliver an overall solution. The main foundations are there. Perhaps the Ministry of Justice and MPs could now get involved and turn this initiative into a cross-party initiative.
Jean-Yves Gilg is editor-in-chief of Solicitors Journal