Bach Commission proposes Right to Justice Act

22 Sept 2017News

Scrap Legal Aid Agency and replace it with an independent body, report recommends

Lord Bach's Commission on Access to Justice has proposed the government introduce a new Right to Justice Act and establish a Justice Commission to enforce it.

The proposals would inject an extra £400m investment into the legal aid system with the intention of enshrining a statutory right to justice in law.

The 52-page final report outlining the commission's recommendations, published today (Friday 22 September), is the product of two years' work by 15 commissioners under the chairmanship of Lord Willy Bach.

Bach established the commission with the backing of Labour leader Jeremy Corbyn shortly after the latter's election to the role in autumn 2015.

Today Bach has called on the government to 'take urgent action' to rectify failings in the justice system, including 'broadening the scope of legal aid, reforming eligibility requirements, and taking action to improve the public's understanding of the law'.

The proposed Right to Justice Act would establish a new set of principles to guide the interpretation of the new right and a Justice Commission to monitor and enforce it.

The Justice Commission would be led by a chief commissioner, with a board of legal practitioners, public champions, and other relevant experts.

Today's report suggests the chief commissioner should have 'significant legal experience' '“ a serving or retired senior judge is recommended '“ and would be appointed by a cross-party panel in accordance with governance procedures.

Adding the Justice Commission's remit to that of an existing regulatory body is mooted as a possibility in the document, but it warns this would mean a considerable extension of that body's terms of reference.

'There is an urgent need to bring some areas of civil law back into the scope of legal aid, with a focus on early legal help in order to help prevent problems developing further down the track,' Bach writes in the foreword.

'There are also huge administrative problems with the operation of legal aid, and levels of public legal capability are dangerously low.'

In addition to introducing the Act, the report outlines a range of policies the government would need to adopt in order to comply with it.

The full 25 recommendations include the reform of legal aid assessment and contributions, as well as restoring pre-LASPO funding levels for early legal support in all social welfare law '“ prior to representation in courts and tribunals.

It calls for state-funded inquests to also include legal representation for the family of the deceased and recommends that changes to the procedure around judicial review be repealed as they dissuade individuals from bringing proceedings.

The commission's report also calls for the Legal Aid Agency (LAA) to be scrapped and replaced by an independent body operating at arm's length from the government.

'The erosion of high-quality, independent decision making, whether real or perceived, has significantly damaged the integrity of the justice system and access to justice,' the report states, referring to the legacy of LAA decision making and processes.

Instead the LAA should be replaced by an organisation with a governance structure resembling that of HM Courts and Tribunals Service, the report suggests. On top of this, appeals should be heard by an organisation which is wholly independent of government.

Among the range of recommendations designed to liberalise the rules governing who is entitled to legal aid, the commission suggests all universal benefits claimants are exempted from income assessment.

According to figures from the Fabian Society, the think tank which provide the secretariat for the commission, this would increase the proportion of households automatically meeting the legal aid income assessment from 19 per cent to 29 per cent.

Evidence submitted to the commission by the Legal Aid Practitioners' Group said: 'Even if a case is covered by the legal aid scheme it can be difficult for people to produce evidence of their financial position so that work can be started on the case.'

The report described the current evidence requirement for both criminal and civil legal aid assessments to be 'unnecessarily onerous'.

The Legal Aid, Sentencing and Punishment of Offenders Act 2012 was forecast to save the equivalent of £450m a year, but according to the Fabian Society last year, legal aid spending was actually £950m less than in 2010.

It estimated that the costs of the proposals in the report will initially total less than that under-spend, at around £400m per year.

The think tank estimated it would cost £120m to widen the scope of early legal help; £110m to extend eligibility for civil legal aid; £60m to widen the scope of civil legal representation; and £50m to fund a national fund for advice services.

hannah.gannage-stewart@solicitorsjournal.co.uk