The Commission, chaired by Lord Bach, was established at the end of 2015 to find solutions that will restore access to justice as a fundamental public entitlement. We have been waiting for the final report with bated breath, because it promised to deliver an innovative proposal for a statutory right to justice. This means that access to justice would be more than a general principle, but a tangible and enforceable legal right.
After hearing from well over 100 individuals and organisations with special expertise, the report proposes 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
We share the latest access to justice stories in our newsletter and via social media, and so often it feels like we’re reporting devastating news after devastating news. We know that there is a crisis in the legal justice system, and we want real change. These proposals offer that change.
Lord Willy Bach is a patron of the Greater Manchester Law Centre, and we are thankful for his ongoing support. He is a former legal-aid barrister and was in the Ministry of Justice from 2008 to 2010.
Sir Henry Brooke recently declared his support for Law Centres. His article can be found here.
URGENT POLICY CHANGES
In order to comply with the Right to Justice Act, the government will need to progressively adopt a range of policies. In part two we set out an action plan for government so that it can take the first steps to making the right to justice a reality.
Reform of the legal aid assessment
- The government should introduce a significantly simpler and more generous scheme for legal aid. The means tests should be based on a simple assessment of gross household income, following an adjustment for family size, with the eventual aim of significantly increasing the number of households eligible for legal aid. As an interim measure these more universal criteria could apply to early legal help.
Everyone who receives a means-tested benefit should be automatically eligible for legal aid, without further assessment. The roll-out of universal credit provides an opportunity to introduce this reform.
- The government should scrap separate capital assessments for legal aid and adopt the same capital provisions as for means-tested benefits. In particular, owner-occupied housing should be exempt from the capital assessment for legal aid.
- If the government chooses to retain the existing means-test for civil legal aid, it should be made more generous and consistent with other means-tests. The ‘disposable income’ the government assumes is available to pay for legal expenses should exclude the basic living costs of the first adult in a household and council tax payments. The maximum amount that can be set aside for employment-related costs and for rent should also be increased, on the basis of evidence of reasonable costs.
- In order to allow flexibility and realise the right to justice, the government should extend the discretion to disregard capital and/or income as part of the means test where it is reasonable to do so.
Reform of legal aid contributions
- We want to see many more people qualify for legal aid, including people who are in a position to pay part of their legal costs. Legal aid contributions should therefore continue but be reformed, with rules on user payments adjusted to reflect our proposals for a more generous calculation of disposable income and capital so that contribution requirements are no longer an unaffordable barrier to justice.
- Existing capital contributions are particularly punitive, so the more generous capital thresholds and exemptions used for means-tested benefits should be applied to ensure consistency; and people should only have to pay a percentage of capital over these limits, rather than having to contribute 100 per cent of their savings.
- The government should consider how to simplify and clarify the means-testing process in criminal courts, and review the level of contributions made. This should focus on reducing the number of litigants in person; and ensuring that the level of monthly contributions is affordable and significantly below the costs of the case.
Reform of legal aid means-test and other evidence requirements
- The evidence requirements for applications for civil and criminal legal aid should be simplified and relaxed, in order to prevent people being forced to abandon their legal aid applications.
- There should be further liberalising reforms to the domestic violence gateway, and solicitors, legal advisers approved under a legal aid contract, and frontline domestic violence support organisations should be able to confirm that an individual is a victim of domestic violence.
A wider scope for legal aid
- We recommend that the government restores legal aid for early legal help (support prior to representation in courts and tribunals)to pre-LASPO levels for all social welfare law (which includes debt, employment, welfare benefits, immigration and housing), for family law, and for prisoners in appropriate cases.
- Children: All matters concerning legal support for children should be brought back into the scope of civil legal aid.
- Family: Family law cases with the following characteristics should brought back into the scope of civil legal aid, with respect to representation in court: a) representation in particularly sensitive areas of private family law (such as cases in which the primary care of a child is in dispute) b) cases involving an application to remove a child from the jurisdiction c) cases where there is local authority involvement in private law children proceedings d) cases in which an allegation is made which is so serious it would be unjust not to provide legal representation to defend it e) cases where the question of whether a child should have any contact with a parent or grandparent is in dispute f) cases where a court determines expertise is necessary to decide a family case in the best interests of the child, but where the non-legally aided party is not in a position to pay a contribution towards that expertise.
- Immigration: There should be a full investigation into which areas of immigration law should be within the scope of legal aid funded representation. This should be conducted with recognition of the importance of translation services, and should include reviewing the fees that clients in immigration cases are charged. In the short term, cases involving stateless persons and cases involving family reunion in which vulnerability is involved should be brought back into scope.
- Inquests: Where the state is funding one or more of the other parties at an inquest, it should also provide legal aid for representation of the family of the deceased.
- Judicial review: Judicial review cases have formally remained within the scope of legal aid, but new regulations have dissuaded providers from issuing proceedings. These regulations, which limit the remuneration of legal aid providers for judicial review cases, should be repealed.
Reform of exceptional case funding
- The exceptional case funding scheme has manifestly failed, and needs urgent review and reform.
The replacement of the Legal Aid Agency
- The Legal Aid Agency should be replaced by an independent body that operates the legal aid system at arm’s length from government.
Reduce administrative burdens for providers
- Immediate action should be taken to fix the Legal Aid Agency’s client and cost management system. This should be done by working with a group of users to identify, develop and implement solutions so that it is fit for purpose.
- There should be a new legal aid composite audit, in place of today’s numerous, overlapping and burdensome assessments, which should be conducted with a short notice period.
Reduce administrative burdens for the public
- The mandatory requirement for mortgage debt, special educational needs and discrimination law to be accessed via the civil legal aid gateway telephone service should be removed, and face-to-face help should be available for those who need it. Additionally, the service should be better resourced with legally trained staff.
Action to ensure the continued viability of the legal aid profession
- The government should commission an independent review of the state of the legal aid profession and its continued viability. This review should focus on the impact any decline in size or quality has on the ability of the public to access justice, and consider the effects of the decision to cut the bursary scheme for aspiring legal aid lawyers.
Better public legal education in schools
- There should be a new responsibility on Ofsted to assess in greater depth how well schools prepare children for the opportunities, responsibilities and experiences of later life. Government should also better support and facilitate the development of relationships between schools and organisations who are working to improve legal capability.
Universally accessible advice
- The government should support the introduction and maintenance of a centrally branded and easily navigable portal for online information and advice. The government should share the details of this central portal in communications about other matters such as health and education.
- The government should create a new, ring-fenced fund for advice providers who are able to evidence the effectiveness of their approach to delivering advice to people within their communities.