Legal aid and Access to Justice

This post has been contributed by Charlotte Crilly, Teaching Fellow for the Undergraduate Laws Programme.

Gavel with computer keyboard on wooden table closeup

Students studying Legal Skills and Method will know about the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO), which severely restricted the availability of legal aid (funding for the provision of legal services at public expense). It did this by removing many areas of civil and family law from the scope of legal aid all together.

This was a very controversial change in the law, which has been criticised by, among many others, the House of Commons Justice Committee and Public Accounts Committee, the National Audit Office and Amnesty International. These criticisms have continued this month with several high-profile developments.

On 25 November 2016 the Bach Commission on Access to Justice joined the debate, publishing its interim report into legal aid. The report, which was commissioned by the UK Labour party, argues that the effects of LASPSO ‘have seriously damaged the functioning of the justice system, especially for those most in need.’

The Commission asks the question ‘what’s wrong with the justice system?’ and identifies six key features which undermine the ability of the system to provide justice for all:

  • fewer people can access legal aid;
  • failure of the exceptional case funding scheme (intended to ensure legal aid for out-of-scope cases with exceptional circumstances);
  • inadequate public legal education;
  • high court fees;
  • expensive and time-consuming processes in the Legal Aid Agency and
  • insufficient use of new technologies in the justice system.

The Commission notes that the English justice system is widely believed to be the most expensive in the world, which was a reason given for legal aid cuts, but in fact this statement is misleading. Their recommendations for change include simplifying the legal system, using new technologies and building public support, as well as looking at reversing some of the deepest and least cost-effective LASPO cuts. A key proposal is that there should be a minimum standard for access to justice in Britain. The final report is due to be published in 2017.

Also in relation to access to justice, on 30 November, the Lord Chief Justice, Lord Thomas, expressed concern at the number of litigants in person in the court system. Litigants in person are parties to a case who are unrepresented by legal professionals in court, and conduct the case themselves. LASPO has resulted in a large increase in litigants in person in the court system, as without legal aid many people are unable to afford to instruct legal professionals.

Lord Thomas said in a speech that he was alarmed by ‘far too many’ litigants in person across the justice system, especially in the family courts, and commented that in family law cases ‘what is beginning to emerge … is the withdrawal of legal aid is causing a problem in resolving disputes between the father and mother over children.’

Lord Thomas also criticised the use of paid McKenzie friends (people who offer non-legal support in court for a fee) as an alternative. He commented that ‘‘You are preying on vulnerable people. I am very cautious about paying non-lawyers to try to assist people.’

The debate over legal aid and access to justice continues. The UK government has promised a review of the legislation by April 2018, but for many people who need legal advice and representation, that will be too late.

For more information see:

The Bach Commission interim report into legal aid []

The Guardian article about the Bach Commission interim report []

Law Society Gazette article about Lord Thomas’s speech []

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