Tuesday, 26 September 2017

Legal aid and the Bach Commission

Legal aid is not sexy, it is nothing to do with the EU  and it does not affect the upper- and middle-income people who run our broadcast media, so it is unsurprising that the publication of the final report of the Bach Commission passed most people by. Of the print media, only the Independent and Guardian highlighted it, though there was a passing mention in other journals.

There was a fringe meeting in conjunction with the release at the current Labour Party conference. There were two one-hour fringe meetings at the Liberal Democrat federal conference in Bournemouth, for which I was sadly indisposed, so I cannot comment on proceedings. One was on the effect of the restricted access to legal aid as a result of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) and the other on what could be done to help people of restricted means with legal problems. One wonders whether any of the participants had sight of the Bach recommendations in pre-publication form, which would have helped discussion.

The Ministry Of Justice will merely "consider the findings". One cannot see the Conservative Party conference giving it any time. On the criminal side, they will not be concerned about the clear increase in unsafe convictions; on the civil side, there are too many landlords in its ranks for the plight of vulnerable tenants to be eased; and, of course, the fact that it was commissioned by the Labour leadership and facilitated by the Fabian Society puts it beyond the Tory pale.

I believe that Liberal Democrats should not be tribal in this area, and that the matter should be discussed on the floor of the next qualifying conference. We are unlikely to afford to mount our own commission, after all. The report asserts that, in spite of a small grant towards the cost, the project was "entirely independent from the Labour party and does not necessarily reflect its views" and that "the commission had full editorial control of the report and its conclusions".

There is some feeling among fellow-Lib Dems that we should not touch the subject of fair and equal access to law, because we were part of the coalition government which imposed LASPO and we would not want to draw attention to the fact - but if our new leader is brave enough to re-visit the subject of tuition fees, why should we not re-examine legal aid too? Besides, New Labour started the cuts, so are vulnerable to a counter-attack if they raise that issue.

The headline recommendation by Bach is for a
a new Right to Justice Act. This act will:
• Codify our existing rights to justice and establish a new right for individuals to receive reasonable legal assistance without costs they cannot afford
• Establish a set of principles to guide interpretation of this new right covering the full spectrum of legal support, from information and advice through to legal representation
• Establish a new body called the Justice Commission to monitor and enforce this new right The purpose of the Right to Justice Act is to create a new legal framework that will, over time, transform access to justice. But early government action is also required. In part two of this report we set out an action plan for government so that it can take the first steps required to make the right to justice a reality.
• Legal aid eligibility rules must be reformed, so that the people currently unable either to access legal aid or to pay for private legal help can exercise their right to justice. This includes establishing a simpler and more generous assessment scheme for civil legal aid; ensuring all benefit recipients automatically qualify for legal aid; and making the contributions to legal aid more affordable
• The scope of civil legal aid, which has been radically reduced, must be reviewed and extended. The priority should be to bring early legal help back into the scope of legal aid – across a broad range of legal issues – in order to encourage early dispute resolution and prevent further distress and cost downstream. All matters concerning children should be brought back into the scope of legal aid. With respect to representation at court, some areas of family and immigration law should also be brought back into scope
• The operation of the legal aid system needs reform. The legal aid system is creaking at the seams, and practice as a legal aid lawyer is becoming increasingly unsustainable. An independent body that operates the legal aid system at arm’s length from government should replace the Legal Aid Agency and action must be taken to address the administrative burdens that plague both the public and providers
• Public legal capability must be improved. At present, most people’s ability to understand a legal problem or to know where to turn for information and support is poor. We call for a national public legal education and advice strategy that improves the provision of information, education and advice in schools and in the community

On the subject of costs, Bach says:
When the government first introduced LASPO it estimated it would save £450m a year in today’s prices. But last year, legal aid spending was actually £950m less than in 2010. The Fabian Society estimate that the costs of the proposals in this report will initially total less than this underspend, at an estimated cost of around £400m per year.
It was possibly beyond the scope of his brief, but I thought he might have mentioned savings which could be achieved throughout the justice system by streamlining procedures.

There is a pdf of the Bach report here.

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