Bach to the future

Time for legal aid to break free from party political discourse? Yes, argues Lucie Wibberley, in light of the recommendations of the Bach Commission for a new Right to Justice Act

The final report of the Bach Commission, The Right to Justice, is a breath of fresh air for the political debate about how we fund and develop our legal aid system. That debate stagnated at the end of the Blair/Brown era. Since then, particularly during Cameron’s punitive ‘Big Society’, legal aid has been cut well beyond the bone. Post LASPO (the Legal Aid, Sentencing and Punishment of Offenders Act 2012), civil legal aid, particularly in the areas of housing, family and immigration law, leaves many without access to any legal advice at all. Employment tribunal fees have been criticised by the Supreme Court for restricting access to justice (R (Unison) v Lord Chancellor [2017] UKSC 51). Unsatisfactory criminal legal aid settlements have left the solicitor profession, in particular, in crisis, to the detriment of defendants. It is all a long way from the aspirations of post-war Britain that brought the legal aid system into being.

Legal aid of the past

Legal aid is, perhaps always was, the Cinderella of public services. Unable to compete with her big sisters, health and education, it is too often forgotten that the three share a common heritage. The Legal Aid and Advice Act of 1949 was part of the welfare state revolution, providing free access to a solicitor for those who could not afford to pay. Sitting alongside the ‘big four’: a national health service, satisfactory housing, social security benefits and universal education, justice took her place at the table as the fifth pillar of a socially enlightened and progressive society.

Sadly, along the way, justice fell behind. Under pressure from all sides the welfare state faces great challenges in these post-austerity years, chronicled daily in the media. The same issues face our justice system and have done for far too long. Litigants and defendants go unrepresented, rights unenforced, families broken, housing problems drift into homelessness, immigration issues become intractable. Real lives, damage done. Despite 24/7 news feeds, the media rarely wants to know.

The Bach Commission proposals

In the face of this decline in the quality of domestic policy it is heartening that the next political generation is intent on not repeating the mistakes of the past. The proposals start not from the premise of piecemeal reform but with a refreshing return to first principles: what is the purpose of a justice system; who should it serve? The answer, say the Bach Commissioners, is to provide access to justice for each and every individual, invoking public funding in circumstances that would otherwise deny that access. Simple to state, and sounds familiar, but how to finally give effect to that post-war aspiration? The solution, says the Commission, is two-fold; an adequate funding base and constitutional reform. Post-LASPO, and despite a right to justice tracing back to Magna Carta, there is no easily explicable right to access to justice, enforceable by the people who need it most. The courts have fallen back on the Human Rights Act 1998 in an effort to afford protection to those most affected by LASPO, but creative litigation is no answer in the long run to this legislative lacuna. The Bach proposals are designed to put right this constitutional wrong and include:

  • codification of existing rights and a new right of access to reasonable legal assistance without unaffordable costs;
  • a set of principles to guide interpretation of the right and a Justice Commission to monitor and enforce it;
  • reform of the legal aid eligibility rules so that lack of means does not exclude anyone from accessing justice;
  • extending the scope of civil legal aid with an emphasis on early legal help to resolve issues more quickly (and more cheaply);
  • reforming the operation of the legal aid sector to put it on a sustainable footing;
  • replacement of the Legal Aid Agency with a body independent from government; and
  • improvement of public legal capability through national public legal education.

The proposals are fully costed. Legal aid spending in 2016 was £950m less than in 2010. The government had, in fact, sought a saving of £450m with the introduction of LASPO. The Fabian Society estimates the initial cost of introducing the proposals to be £400m; less than the present underspend.

The Bach Commission, due to the wealth of experience and talent of its commissioners, clearly understands the role that lawyers can play in a just society. The true harm of LASPO cuts is that the more legal access is denied, the more costs surface in other ways. Keeping a mother in work, a father in housing, a child in education, a young man out of prison and, most importantly, resolving as many ‘cases’ (problems in a person’s life) as possible before they get into court, where the real costs bite; these are all cost savings for society in the long run. Early legal intervention is a social good, and a financially efficient one, not a luxury. Lawyers are, at our core, problem solvers. That is our job description. And the sooner a problem is brought to us, the easier it is for us to resolve.

A Right to Justice Act, combined with public funding administered by an independent commission, would have another substantial benefit. It would take the financing of the administration of justice out of the party political arena, placing it on a much firmer, and sounder, footing. For too long, and particularly in recent years, successive Lord Chancellors and Minsters for Justice have sort to implement cuts in the guise of reforms which have no regard for the true purpose of the justice system, which is to serve. A legal aid system no longer kicked from pillar to post by opponents intent on scoring political goals stands a much better chance of achieving its stated purpose.

Political impact and future of legal aid

Bach is already having a significant political impact. Reports from this year’s Tory conference indicate disquiet on the backbenches about the parlous state of legal aid provision and indications from the Lord Chancellor that a long promised review of LASPO is imminent, with further indications that the Solicitor General supports an increase in funding for early legal advice. But an increase of how much, on what terms and for which types of cases? The government is yet to provide any detailed policy framework for unravelling the destitution of legal aid, a destitution which was of the Tory and Coalition administration’s own making.

How might the Bach Commission proposals be developed under a Labour administration? The Bach Commission was, after all, a Labour initiative. I asked Richard Burgon MP, Shadow Justice Minister, whether he supports a Right to Justice Act? ‘It’s truly unacceptable that in 21st century Britain we have people excluded from our justice system because they cannot afford to defend their rights. Food banks, zero-hours contracts and the bedroom tax are some of the most powerful symbols of the cruelty of the Conservative government’s cuts agenda, but the huge attacks on people’s access to justice are equally callous. A right to justice should have parity with rights to healthcare and education. That is why I am excited by the idea of a Right to Justice Act.’

But will Labour take the fight to the government, I asked? ‘This autumn we are going to be pushing for the government to act on another of Bach’s key proposals, greater investment in early legal advice and assistance. This could actually save the state significant resources by preventing the need for more costly legal representation and the later escalation of disputes into court cases. I think Lord Bach has made an invaluable contribution to the debates around access to justice and all the ideas in his report will play a key role in Labour’s discussions on creating a fairer justice system as we put together our next manifesto.’

Far enough?

I am encouraged by Richard’s grasp of the issues and determination to right the wrongs of the recent past. However, some think the Bach proposals do not go far enough. I asked Greg Powell, President of the London Criminal Courts Solicitors Association and one of the country’s leading legal aid lawyers, about the scale of the problem. ‘There is a vast unmet need for advice and representation. In 2012/13 there were 82,542 welfare benefit cases, in 2015 only 254. The assault on claimants has been not only through cuts and sanctions but also by removing access to lawyers. The numbers of legal aid lawyers are falling and it has become a sector overwhelmed by pessimism as two decades of cuts have unfolded, discouraging new entrants and decimating provision.’

I asked Greg, what more is needed to make access to justice a reality? ‘A commitment to restoring the unintended extra cut of £400m, leaving the intended cut of £450m in place, is better than nothing but simply does not meet the scale of the access to justice disaster. The minimum need is £1bn, although this would still leave the fund well short of its 2004 level… It remains a puzzle why politicians cannot grasp the nettle. At £2bn plus VAT [they get back the latter] it would be less than 1% of government spend, currently around £750bn, and however worthy plans may be to reconstitute the institutional framework of rights and access, fine words will butter no parsnips.’

For my part, I wonder whether an annual statistical report published by the Justice Commission that Bach proposes, responsible for researching and reporting on ‘justice needs’, ‘justice provision’ and the scale of the funding required to bridge the gap between the two, would be a good start. Against the backdrop of a Right to Justice Act setting out in clear terms the minimum entitlement to legal advice that we can each expect, in the event we cannot afford to pay for it, this would be one approach to enforcing a right to justice, at a community, as well as individual, level. At present the legal aid sector fights, government to government, for its survival, to the detriment of the communities we serve. Putting the sector on a stable financial footing moving forward, one of the inevitable and beneficial consequence of any such Act, and the introduction of an independent funding body tasked with balancing provision against need, would move the debate on to consideration of how to deliver justice for all going forward, and away from the fire fighting in which it is presently engulfed.

Similar type proposals, of independent commissions outwith the frenzied Westminster circus and tasked with the remit of considering need as against funding, occasionally surface in the debates around ongoing political interference in the health and education sectors. More so than justice these two public services know to their cost the dire consequences of an ever changing cast of Secretaries of State, each intent on imposing their own ‘personal legacy’ upon a public service in which, all too often, they have no expertise. Serial crises in the management of public sector finances and delivery inevitably follow. The public sector long ago grew tired of post-election cuts and pre-election budget bonuses. This is hardly a mature, arguably not even civilised, way in which to finance some of our most treasured institutions. And in the case of Cinderella, the cuts have imperilled justice herself.

Achieving cross-party consensus

So what prospect is there of cross-party consensus to move legal aid beyond party politics, create an independent monitoring body, and instil some stability and long-term planning into this much beleaguered public service? I asked Jo Cecil, Bach Commissioner and a barrister with particular expertise in youth justice and related judicial review proceedings, much impacted by LASPO, whether she was hopeful?

Jo said: ‘Working in legal aid for many years, I know only too well the impact that the aggressive cuts to both civil and criminal legal aid have had on the most vulnerable in our society. The situation concerning children is particularly acute. At all the major party conferences this year, there were signs that the Bach Commission is turning the tide in the debate on access to justice. There are indications already that the combined impact of the Bach and Lammy reports are encouraging cross party solutions which will hopefully lead to meaningful reform of legal aid. Such solutions cannot come soon enough for those whose only route to justice is through publicly funded representation.’

Perhaps then we can all be hopeful that access to justice is on the cusp of a political transformation. For the first time in a generation there is a political will emerging to develop progressive policies that deliver in the spirit of the 1949 Act. As the Brexit debacle unfolds, justice is ever more a precious jewel that needs to be protected and handed on to the next generation in much better condition than the system we have inherited. Jo is right to highlight the Lammy Review, which makes only too clear that in the case of criminal justice, as in all areas of the publicly funded system, we are falling a long way short. Children in particular are short served by a youth ‘justice’ system that is not fit for purpose. Over 40% of young people in custody are from BAME backgrounds. These are some of the great iniquities of our time. Access to justice means nothing if the quality of justice is lacking. But that is a topic that merits an article all of its own…

Author details: 
Lucie Wibberley

Lucie is a member of Garden Court Chambers, practising exclusively in criminal defence.