Blind pursuit of policy

When Theresa May became prime minister in July 2016, Young Legal Aid Lawyers wrote an open letter urging her to undertake a review of LASPO, which inflicted savage cuts on legal aid. Since then, a considerable body of evidence has been collected which supports YLAL’s position, demonstrating the dysfunctional nature of our legal aid system and the harm caused by LASPO.

Especially important is the interim report produced in November 2016 by the Bach Commission, set up by Lord Willy Bach, who was asked by Labour leader Jeremy Corbyn to conduct a review of the legal aid system.

The commission explains that there has been a steady decline in the number of households eligible for civil legal aid since the 1980s. Then, between 2010/11 and 2015/16, there was a further 34 per cent cut in spending by the Ministry of Justice (only the Department for Work and Pensions experienced greater cuts). To achieve this cut, LASPO removed legal aid from most cases involving housing, welfare, debt, immigration, employment, and medical negligence.

However, the commission points out that the savings to the public purse are misleading. Evidence indicates that providing legal aid at an early stage saves money in the long term. For example, Citizens Advice found that for every £1 of legal aid expenditure on benefits advice, the state potentially saves £8.80. Further, the legal system is so complicated that the Legal Aid Agency’s administrative costs have actually increased since LASPO was introduced. More fundamentally, LASPO has ‘seriously damaged the functioning of the justice system, especially for those most in need’.

Key to the commission’s proposed reforms is the setting of minimum standards for access to justice: ‘The state has a duty to provide a guarantee to all its citizens of access to justice, in the same way as it has a duty to provide its citizens with a decent education and health service.’ However, the commission also indicates that the need to control public spending means that it will not recommend the repeal of LASPO in its entirety.

In YLAL’s view, it is unfortunate that a total repeal has been ruled out. Given that the commission agrees with our view that access to justice is a fundamental right, surely the question is the extent of legal aid provision required to safeguard this right. On the basis of the evidence obtained so far, it is hard to see how these minimum standards can require anything other than a complete repeal of LASPO.

This conclusion is further supported by Amnesty International’s October 2016 report, ‘Cuts That Hurt’, which stresses that legal aid is a human rights issue: ‘In human rights terms, the cuts to legal aid constitute a retrogressive measure.’ A recent report from the Trades Union Congress, ‘Justice Denied’, makes much the same point, as well as recognising more broadly that LASPO has ‘negatively affected the ability to deliver justice fairly, effectively, and efficiently’.

Fortunately, the government has now confirmed that LASPO will be reviewed and the timetable announced shortly. However, the extent to which the government is prepared to consider objectively the findings of the review is questionable. On 6 December 2016, Liz Truss observed: ‘We need a system that is both open and affordable, which is exactly what the government are delivering.’ Legal professionals must urge the government to act on the evidence before it, rather than blindly pursuing a policy which has been proved to compromise human rights as well as being economically inefficient.

Katherine Barnes is a barrister at Francis Taylor Building and a YLAL committee member

@YLALawyers www.younglegalaidlawyers.org